Communist Party of United States v. United States

Decision Date17 December 1963
Docket NumberNo. 17583.,17583.
Citation331 F.2d 807
PartiesThe COMMUNIST PARTY OF The UNITED STATES of America, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

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Messrs. John J. Abt, New York City, of the Court of Appeals of New York, pro hac vice, by special leave of court, and Joseph Forer, Washington, D. C., for appellant.

Mr. George B. Searls, Atty., Dept. of Justice, with whom Mr. Kevin T. Maroney and Mrs. Lee B. Anderson, Attys., Dept. of Justice, were on the brief, for appellee.

Mr. O. John Rogge, New York City, filed a brief on behalf of American Civil Liberties Union, as amicus curiae.

Before BAZELON, Chief Judge, and WASHINGTON and McGOWAN, Circuit Judges.

Petition for Rehearing En Banc Denied February 21, 1964.

Petition for Rehearing by the Division Denied February 21, 1964.

BAZELON, Chief Judge.

The Communist Party of the United States of America appeals its conviction under § 7 and § 15 of the Subversive Activities Control Act1 for failure to comply with an order of the Subversive Activities Control Board. That order, entered in proceedings commenced some thirteen years ago, found the Party to be a Communist-action organization within the meaning of § 3(3) of the Act and required it to register and submit information under § 7 of the Act. The Supreme Court sustained the order. Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961).2 The questions before us concern its enforcement.

The Act requires each organization found by the Board to be a Communist-action organization to register as such with the Attorney General § 7(a), and file an accompanying statement § 7(d) containing its name and the address of its principal office, the names of its officers and members during the preceding year (together with their aliases), an account of money received and spent during the preceding year (including sources and purposes), and a list of the organization's printing presses. Both the registration and the statement must be completed on forms prescribed by the Attorney General; by present regulation, 28 C.F.R. §§ 11.200-11.207, these forms are IS-51a (registration) and IS-51 (information). Also by regulation, the completed forms must be signed, either by an officer of the organization, or by a "member, employee, attorney, agent, or other person." If a non-officer signs, he must certify that the organization authorized him to complete and submit the forms.3 Failure to register or file the statement within thirty days after the order becomes final § 7(c) (3) subjects the organization to a fine of up to $10,000 § 15(a) (1), with each day of failure to register counting as a separate offense § 15(a).

After the Board's order in this case became final upon entry of the Supreme Court's mandate on October 20, 1961, the Party had until November 19 to register without penalty. Before then, the Attorney General received a letter on Party stationery, dated November 10 and signed only with the Party seal, stating that the Party's officers declined, for fear of self-incrimination, to submit the forms or to authorize anyone to submit them:

These declinations are made by each officer in the exercise of his privilege under the Fifth Amendment to the Constitution not to be a witness against himself. The officers have adopted this means of asserting their respective constitutional privileges because a claim of privilege made in the name of an officer would tend to incriminate him and might constitute a waiver of his privilege.

The Attorney General replied by telegram on November 17, rejecting the claims of privilege contained in the Party's letter and also rejecting the letter as compliance with the order to register. The Party took no further action.

On December 1, the indictment herein was returned. It charged the Party with eleven counts of failing to register (one for each day between November 20 and November 30), and one count of failing to file the statement. At trial, the Party's failure to register and to file the statement was stipulated. The Government called only one witness. He testified that he had attended a press conference on June 8, 1961 (immediately after the Supreme Court's decision) at which Gus Hall announced the Party's intention not to comply.4 The Party called no witnesses. Before trial the Party moved to dismiss the indictment, and at the end of the trial it moved for a judgment of acquittal. In both these motions the Party argued, inter alia, that its failure to comply was legally justified because the regulations accompanying § 7 require the registration and information forms to be signed by a natural person, and under Patricia Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170 (1950), anyone who signed would be admitting an incriminating association. Thus, argued the Party, unless someone were willing to incriminate himself, there was no way in which the Party could register. The Government responded that the officers had a duty to sign for the Party and could not claim the privilege as legal justification for avoiding this duty, and that even if they could, the Party was not relieved of its duty to register but must get someone else to sign the forms on its behalf.

The motions to dismiss and for acquittal were denied. The jury was instructed that no issue of self-incrimination was before it, the critical question being whether the Party's failure to comply was intentional rather than accidental or inadvertent. A verdict of guilty was returned on all twelve counts. The court imposed the maximum sentence, fines totaling $120,000, and the Party brought this appeal. We disagree with the trial court's disposition of the self-incrimination issues.5

The regulations accompanying § 7 of the Act imposed a duty upon the Party to file certain forms signed by a natural person. To sustain a criminal charge for failure to comply, it must appear that someone was available who was either legally bound or willing to sign. Ordinarily, proof of this essential element may be supplied by presumptions that (1) an organization's legal obligation devolves upon its officers, whose failure to execute the obligation makes the organization liable; and (2) if an officer has legal justification for refusing to act, the organization can provide someone else who will act for it. The question before us is whether these presumptions apply in the circumstances of this case.

This problem must be viewed against the background of American history during the past generation. That history shows that the Communist Party does not stand before the law as an ordinary political group. The Party's special status does not arise from the unpopularity of its views, or the public opprobrium attaching to it and its adherents. See Communist Party v. Subversive Activities Control Board, 367 U.S. at 102-103, 81 S.Ct. at 1413, 6 L.Ed.2d 625. Instead, it arises from the imposition of governmental sanctions upon the Party and its members, based on a special danger to our national security. On that ground, statutes have been sustained which might otherwise have raised serious constitutional objections. See American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925 (1950); Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952); Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954); Communist Party v. Subversive Activities Control Board, 367 U.S. at 104-105, 81 S.Ct. at 1414, 6 L.Ed.2d 625; Scales v. United States, 367 U.S. 203, 224-228, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961); Barenblatt v. United States, 360 U.S. 109, 128, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959). See also American Communications Ass'n v. Douds, supra 339 U.S. at 422, 70 S.Ct. at 696, 94 L.Ed. 925 (opinion of Jackson, J.) Civil disabilities imposed on adherents of the Communist movement include prohibitions on entering the United States,6 denial of Social Security benefits,7 and ineligibility for many forms of employment.8

Most critical for present purposes are the criminal sanctions. Since 1940, the Smith Act has threatened with fine and imprisonment anyone who:

"organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof." 18 U.S.C. § 23859

And with the successful application of the membership clause in Scales v. United States, supra, it is not necessary to prove that a defendant himself has taught, advocated, or encouraged the overthrow or destruction of a government by force or violence. It must be shown that the organization advocates the overthrow, see Noto v. United States, 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836 (1961), but with respect to the Communist Party, Congress has supplied this showing. The Communist Control Act of 1954 declares:

Sec. 2. "The Congress finds and declares that the Communist Party of the United States, although purportedly a political party, is in fact an instrumentality of a conspiracy to overthrow the Government of the United States. * * * Therefore, the Communist Party should be out-lawed. 50 U.S.C. § 841

And the Act proceeds:

Sec. 3. "The Communist Party of the United States * * * is not entitled to any of the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof." 50 U.S.C. § 842

The conclusion is inescapable that the Communist Party is sui generis. The legislative array facing the Party virtually makes it a criminal conspiracy per se....

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