Communist Party of US v. Subversive Act. Con. Bd.

• Decision Date: 09 January 1958
• Docket Number: No. 11850.,11850.
• Citation: 254 F.2d 314
• Parties: COMMUNIST PARTY OF THE UNITED STATES of America, Petitioner, v. SUBVERSIVE ACTIVITIES CONTROL BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

254 F.2d 314 (1958)

COMMUNIST PARTY OF THE UNITED STATES of America, Petitioner, v. SUBVERSIVE ACTIVITIES CONTROL BOARD, Respondent.

No. 11850.

United States Court of Appeals District of Columbia Circuit.

Argued May 27, 1957.

Decided January 9, 1958.

Petition for Rehearing Denied April 11, 1958.

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

Mr. George R. Gallagher, Gen. Counsel, Subversive Activities Control Board, with whom Messrs. Frank R. Hunter, Jr., and Leo M. Pellerzi, Asst. Gen. Counsel, Subversive Activities Control Board, and Messrs. Harold D. Koffsky, Philip R. Monahan, and William F. O'Donnell, III, Attys., Dept. of Justice, were on the brief, for respondent.

Before PRETTYMAN, BAZELON and DANAHER, Circuit Judges.

PRETTYMAN, Circuit Judge.

This is the second time this case has been here. After our decision upon the first petition¹ the Supreme Court ordered the case remanded to the Subversive Activities Control Board for reconsideration under Section 14(a) of the Subversive Activities Control Act² in the light of allegations that the testimony of three witnesses, Crouch, Johnson and Matusow, who had testified for the Government at the original hearing, was perjured.³ The Board struck the testimony of those witnesses and issued a Modified Report and an order based thereon. The Party petitions for review of that order.

I.

The Party renews all the points of law it presented upon its first petition to this court. Upon reexamination we adhere to, and now reaffirm, the views we expressed in our opinion in that case.

II.

Section 3(3) (a) of the Act⁴ provides:

"Sec. 3. For the purposes of this title —

* * * * * *

"(3) The term `Communist action organization\' means —

"(a) any organization in the United States (other than a diplomatic representative or mission of a foreign government accredited as such by the Department of State) which (i) is substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement referred to in section 2 of this title, and (ii) operates primarily to advance the objectives of such world Communist movement as referred to in section 2 of this title; * * *."

In the language of this litigation the foregoing definition is said to have two components, a control component and an objective component. The Party says the findings of the Board are not supported by a preponderance of the evidence, in that the evidence does not support the finding as to control within the meaning of the control component and does not support the finding as to objectives within the meaning of the objectives component. The point rests upon a construction of the quoted section of the statute.

The Party says the control component means a relationship in which the Soviet Union exercises an enforceable power to exact compliance with its demands, and the Party adds of course that there is no showing that the Soviet has any means of enforcing conformity by the Party with Soviet desires. But we think this construction of the statute would be erroneous. In the first place, and conclusively, Section 13(e) of the statute⁵ makes the matter clear. That section says: "In determining whether any organization is a `Communist-action organization' the Board shall take into consideration" a list of eight subjects. Among these items are such things as "the extent to which its views and policies do not deviate from those of such foreign government" and "the extent to which it reports to such foreign government". These items demonstrate that the definition of a Communist-action organization was not intended by the Congress to be restricted to organizations which are subject to enforceable demands of the Soviet Union. In the second place the words of Section 3(3) do not necessarily imply enforceable power. The words are "substantially directed, dominated, or controlled". The statute uses the word "substantially". An organization or a person may be substantially under the direction or domination of another person or organization by voluntary compliance as well as through compulsion. This is especially true if voluntary compliance is simultaneous in time with the direction and is undeviating over a period of time and under variations of direction. If the Soviet Union directs a line of policy and an organization voluntarily follows the direction, the terms of this statutory definition would be met.

As to the objectives component of the definition the Party says this clause in the statute requires proof that the accused organization operates primarily to advance three objectives: (1) overthrow of the Government by any means necessary, including force and violence, and (2) establishment of a Communist totalitarian dictatorship, which (3) will be subservient to the Soviet Union. The Party says the Board found only the first of these three objectives and that its finding is not supported by the evidence and is based in large part on misrepresentations of the evidence. The Party derives its construction of the objectives component by analyzing Section 2 of the statute. That section is a recitation of fifteen findings made by the Congress. In these fifteen findings the Party discerns findings as to the objectives of the world Communist movement. As thus discerned the Party describes these objectives in three parts, as we have just indicated.

The Board clearly concluded in the affirmative on each of the foregoing objectives. See its Modified Report⁶ at pages 39, 89-90, 194-202, 204. Its conclusions were clearly supported by a preponderance of the evidence. It would prolong this opinion beyond permissible length even to sketch that evidence. It is referred to at length in the Modified Report. So, even if we accept the Party's analysis of Section 2 — we intimate no opinion upon whether or not that analysis is accurate — we think the objectives component of the definition of a Communist-action organization has been met.

III.

The Party says the Board's finding with reference to a world Communist movement, if authorized by the Act, is not supported by the evidence. By "if authorized by the Act" the Party is referring to the section of the Act (Section 2) which contains a congressional finding upon the existence and characteristics of the world Communist movement. The Party says that in view of that finding the subject may not be litigated. We discussed that matter in our former opinion. The finding made by the Board is, in our view, supported by ample evidence in this record. So, whether that finding is superfluous or not, the fact is established, either by the congressional finding or by the Board finding, or by both.

IV.

The Party says that the order of the Board must be set aside because the Board refused to require production of alleged reports made to the Federal Bureau of Investigation by Government witnesses. Reports said to have been made by four witnesses — Scarletto, Gitlow, Budenz and Markward — are involved. The Party moved for the production of these reports both at the original trial and at the hearing after remand.

Scarletto.

The Board affirmatively stated that Scarletto's testimony was not credited. It said:

"Relevant to this issue petitioner\'s witness Scarletto testified concerning a meeting of a Party club where sabotage of United States efforts in the Korean War were discussed, however, this testimony was rendered questionable on cross-examination and is not credited."

The Party's objective in demanding production of Scarletto's alleged report to the F.B.I. was to impeach him as a witness. Since the Board did not credit the testimony that objective was achieved. The Party accomplished the full purpose it sought from the production of the report. We need therefore consider this point no further.

Gitlow.

Gitlow was for years a high official of the Communist Party — a member of the Executive Committee of the Communist International, a member of the Executive Committee of the Profintern, and head of American delegations to Moscow in 1928 and 1929. In 1929 he was expelled from the Party because of a difference with Joseph Stalin on the question of the leadership of the American Communist Party. Over a decade later, in about 1940, Gitlow turned over to the F.B.I. all documents and papers in his possession pertaining to the Party, including a quantity of minutes of meetings of top committees. A few weeks later he dictated for the F.B.I., over a period of weeks, memoranda explaining and interpreting those documents.

Gitlow was not at any time an employee of the F.B.I. He never at any time made to the F.B.I. contemporaneous reports of events.

Much of Gitlow's direct testimony before the Board consisted of his identification of documents which he had delivered to the F.B.I. He explained those documents on the witness stand.

While Gitlow was testifying before the Board he was shown a document, which he said was a copy of his interpretation of certain minutes and documents which he had submitted to the F.B.I. He was asked whether this document refreshed his recollection. He replied that it did not — "Not at all." The Government gave counsel for the Party the memorandum with which the Government attempted to refresh the witness's recollection. The dispute here concerns the remaining memoranda.

The Party moved that the Attorney General be directed to produce for the inspection of the Party the so-called explanatory memoranda.

The problem posed is this: Where a witness, approximately contemporaneously with turning over to the F.B.I. quantities of minutes of Party meetings, wrote for the F.B.I. interpretations and explanations of those documents, and the witness testified before this Board at length in explanation of the same...