Dennis v. United States, No. 502

• Court: United States Supreme Court
• Writing for the Court: FORTAS
• Citation: 86 S.Ct. 1840,384 U.S. 855,16 L.Ed.2d 973
• Parties: Raymond DENNIS, et al., Petitioners, v. UNITED STATES
• Decision Date: 20 June 1966
• Docket Number: No. 502

384 U.S. 855 86 S.Ct. 1840 16 L.Ed.2d 973 Raymond DENNIS, et al., Petitioners,

v.

UNITED STATES.

No. 502. Argued April 20, 1966. Decided June 20, 1966.

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Telford Taylor, New York City, for petitioners.

Nathan Lewin, Washington, D.C., for respondent.

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Mr. Justice FORTAS delivered the opinion of the Court.

The six petitioners and eight others were indicted in the United States District Court for the District of Colorado on a charge of violating the general conspiracy statute, 18 U.S.C. § 371 (1964 ed.).¹ The single-count indictment alleged a conspiracy fraudulently to obtain the services of the National Labor Relations Board on behalf of the International Union of Mine, Mill and Smelter Workers, by filing false affidavits in purported satisfaction of the requirements of § 9(h) of the National Labor Relations Act, as amended by the Taft-Hartley Act, 61 Stat. 146.

Section 9(h), which was later repealed,² provided that labor unions could not secure Labor Board investigation of employee representation or the issuance of a complaint unless there was on file with the Board so-called

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non-Communist affidavits of each officer of the union and its parent organization. The statute required that these affidavits attest that the officer is not a member of the Communist Party or 'affiliated with such party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods.'

Four of the six petitioners—Dennis, Dichter, Travis and Wilson—were officers of the union. Each is alleged to have filed false non-Communist affidavits. Petitioners Sanderson and Skinner were, at relevant times, union members but not officers. They are charged with participation in the conspiracy. All were alleged to be 'members of and affiliated with the Communist Party.'

The indictment was returned in 1956. At the first trial, petitioners and others were convicted. On appeal, the Court of Appeals for the Tenth Circuit sustained the validity of the indictment, but reversed the judgments on the ground that prejudicial hearsay evidence had been admitted in evidence. 302 F.2d 5.

On retrial, the petitioners were again convicted and each was sentenced to three years' imprisonment and fined $2,000. This time, the Court of Appeals affirmed. 346 F.2d 10. We granted certiorari (382 U.S. 915, 86 S.Ct. 291, 15 L.Ed.2d 231) limited to three questions:

'1. Whether the indictment states the offense of conspiracy to defraud the United States;

'2. Whether, in the comparative light of American Communications Ass'n. v. Douds, 339 U.S. 382, (70 S.Ct. 674, 94 L.Ed. 925), and United States v. Brown, 381 U.S. 437, (85 S.Ct. 1707, 14 L.Ed.2d 484), Section 9(h) of the Taft-Hartley Act is constitutional;

'3. Whether the trial court erred in denying petitioners' motions for the production, to the defense or the Court, of grand jury testimony of prosecution witnesses.'

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Essentially, the Government's case is that, prior to June 1949, the union and the Communist Party opposed compliance with § 9(h); that in 1949 the Communist Party and the union, as a consequence of discussions participated in by petitioners and others, determined that preservation of the Party's allegedly dominating position in the union, and the union's welfare itself, required that the union officials take steps to secure the Board's services for the union; and that, in order to accomplish this purpose, the union's officers were nominally to resign from the Communist Party and to file the non-Communist affidavits required by § 9(h). Pursuant to this plan, it is alleged, the union leadership voted to comply with § 9(h). Those officers who were Party members, including four of the petitioners herein, purported to resign from the Party. ³ They then proceeded, at various dates between August 1949 and February 1955, to file with the Labor Board the required non-Communist affidavits. This action, it is contended, was cynical and fraudulent, and petitioners' affidavits were false. In reality, it is claimed, petitioners' Communist Party affiliations remained unaffected as did the Party's domination of the union's affairs. The union thereafter proceeded, on several occasions, to utilize the Board's services, a privilege which it had obtained as a result of these assertedly fraudulent acts.

I.

We first discuss the question, considered both in the District Court and in the Court of Appeals,⁴ whether the

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indictment properly charged a conspiracy to defraud the United States under 18 U.S.C. § 371. We agree that indictments under the broad language of the general conspiracy statute must be scrutinized carefully as to each of the charged defendants because of the possibility, inherent in a criminal conspiracy charge, that its wide net may ensnare the innocent as well as the culpable. See Krulewitch v. United States, 336 U.S. 440, 445—458, 69 S.Ct. 716, 719—725, 93 L.Ed. 790 (concurring opinion); United States v. Bufalino, 285 F.2d 408, 417—418 (C.A.2d Cir. 1960). But in the present case we conclude that the indictment for conspiracy was proper as to each of the petitioners.

Four of the petitioners—those who filed the affidavits alleged to be false—presumably could have been indicted for the substantive offense of making false statements as to a 'matter within the jurisdiction of' the Board, a violation of 18 U.S.C. § 1001 (1964 ed.). But the essence of their alleged conduct was not merely the individual filing of false affidavits. It was also the alleged concert of action—the common decision and common activity for a common purpose. The conspiracy was not peripheral or incidental. It lay at the core of the alleged offense. It is the entire conspiracy, and not merely the filing of false affidavits, which is the gravamen of the charge. This conspiratorial program included, as prime factors, not only those who themselves filed the false statements, but others who were equally interested in the conspiratorial purpose and who were directly and culpably involved in the alleged scheme. The Government sought to fasten culpability upon all of the conspirators. The indictment properly charges a conspiracy, and with the required specificity alleges the culpable role of each of the petitioners.

Nor can it be concluded that a conspiracy of the described nature and objective is outside the condemnation of the specific clause of § 371 relied upon in the

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indictment, which charges a conspiracy 'to defraud the United States, or any agency thereof in any manner or for any purpose.' It has long been established that this statutory language is not confined to fraud as that term has been defined in the common law. It reaches 'any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government,' Haas v. Henkel, 216 U.S. 462, 479, 30 S.Ct. 249, 254, 54 L.Ed. 569, quoted in United States v. Johnson, 383 U.S. 169, 172, 86 S.Ct. 749, 751, 15 L.Ed.2d 681.⁵ See also, Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593; Glasser v. United States, 315 U.S. 60, 66, 62 S.Ct. 457, 463, 86 L.Ed. 680; Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968. Cf. Goldstein, Conspiracy to Defraud the United States, 68 Yale L.J. 405, 414—441, 455—458 (1959). In the present case, it is alleged that petitioners, unable to secure for their union the benefit of Labor Board process except by submitting non-Communist affidavits, coldly and deliberately concocted a fraudulent scheme; and in furtherance of that scheme, some of the petitioners did in fact submit false affidavits and the union did thereafter use the Labor Board facilities made available to them. This Court's decisions foreclose the argument that these allegations do not properly charge a conspiracy to defraud the United States.

Petitioners argue, however, that their conduct cannot be considered as fraudulent for purposes of § 371 because the Labor Board is required to certify the compliance of any union whose officers have filed non-Communist affidavits—without regard to the veracity thereof. Leedom v. International Union, 352 U.S. 145, 77 S.Ct. 154, 1 L.Ed.2d 201, and Amalgamated Meat Cutters and Butcher Workmen of North America v. National Labor Relations Board, 352 U.S. 153, 77 S.Ct. 159, 1 L.Ed.2d 207. The claim is that since the Board's action in making its services available to the

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union was not and could not lawfully have been predicated upon the truthfulness of the affidavits, the element of reliance is missing and there is no conspiracy to defraud. It is true that Congress, in order to free the Board of the delays that would be attendant upon testing the bona fides of controverted affidavits,⁶ did relegate to the criminal law the responsibility for dealing with false filings. This allocation of responsibility relating to the sanctions attached to false affidavits does not alter the character or legal consequences of petitioners' alleged actions. It is beyond argument that Congress unmistakably regarded the filing of truthful affidavits—and not merely affidavits true or false—as of the essence of the privilege of using Board facilities. Congress made this doubly clear by expressly providing that certain criminal statutes, such as 18 U.S.C. § 1001 relating to the filing of false statements, shall be applicable in respect of § 9(h) affidavits.

The facts are, according to the indictment, that petitioners and their co-conspirators could not have obtained the Board's services and facilities without filing non-Communist affidavits; that the affidavits were submitted as part of a scheme to induce the Board to act; that the Board acted in reliance upon the fact that affidavits were filed; and that these affidavits were false. Within the meaning of §...