Gold v. United States

• Decision Date: 08 October 1956
• Docket Number: No. 12352.,12352.
• Citation: 237 F.2d 764,99 US App. DC 136
• Parties: Ben GOLD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

99 US App. DC 136, 237 F.2d 764 (1956)

Ben GOLD, Appellant, v. UNITED STATES of America, Appellee.

No. 12352.

United States Court of Appeals District of Columbia Circuit.

Order March 9, 1956.

Rehearing Denied April 12, 1956.

Opinion April 19, 1956.

Certiorari Granted October 8, 1956.

Mr. Harold I. Cammer, 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, with whom Mr. David Rein, Washington, D. C., was on the brief, for appellant.

Mr. Joseph Lowther, Asst. U. S. Atty., with whom Messrs. Harold D. Koffsky and Brandon Alvey, Attorneys, Department of Justice, were on the brief, for appellee. Messrs. Leo A. Rover, U. S. Atty., at the time of argument and Lewis Carroll, Asst. U. S. Atty., also entered appearances for appellee.

Before EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER, and BASTIAN, Circuit Judges.

Certiorari Granted October 8, 1956. See 77 S.Ct. 41.

Order

PER CURIAM.

This appeal came on to be reheard before the Court in banc on the transcript of the record from the District Court of the United States for the District of Columbia, and was reargued by counsel.

Upon consideration whereof, it is ordered and adjudged by this Court that the judgment of the said District Court on appeal in this case be, and it is hereby, affirmed by an equally divided Court. Each Judge of this Court reserves the right to file a statement of his vote and his reasons.

Statement of Circuit Judge BAZELON'S reasons for voting in favor of reversal of the judgment of the District Court on appeal in the above-entitled case.

BAZELON, Circuit Judge.

I was a member of the division of this court which originally heard this appeal from a conviction on two counts of filing a false non-Communist affidavit. Thereafter a rehearing in banc was ordered by the court, sua sponte. The rehearing culminated in an order, on March 9, 1956, affirming the conviction by an equally divided vote and reserving for each judge the right to file a "statement of his vote and his reasons." I choose to state my views because important issues vitally affecting the administration of justice are involved.

As a condition for making the processes of the National Labor Relations Board available to a labor organization, § 9(h) of the Taft-Hartley Act requires that each officer of the labor organization file annually with the Board a non-Communist affidavit stating that

"he 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."¹

A specific provision of § 9(h) makes false affidavits punishable under 18 U.S. C. § 1001 (commonly known as the false statements statute), which declares it unlawful "in any matter within the jurisdiction of any department or agency of the United States" to "knowingly and willfully" make or use "any false writing * * * knowing the same to contain any false * * * statement * *."²

While serving as president of the International Fur and Leather Workers Union, on August 30, 1950, appellant Gold filed the required affidavit. A prosecution under § 1001 followed, charging in three separate counts that Gold lied when he swore that he was not a member of the Communist Party, or affiliated with it, or a supporter of "any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods." After a trial by jury, he was acquitted on the "affiliation" count and convicted on the "membership" and "support" counts.

I.

One of the grounds for reversal urged by Gold relates to the trial court's refusal to apply the rule of evidence in perjury cases,³ which bars a conviction on the uncorroborated testimony of one witness.⁴ The refusal was based on the premise that only "perjury," brought under 18 U.S.C. § 1621 (1952),⁵ and not charges of false statements otherwise proscribed by law, are within the centuries old rule.

The "continued vitality" of the perjury rule has been recognized by the Supreme Court in the last decade,⁶ despite criticism that the rule has outlived its usefulness.⁷ "An oath against an oath" will not support a conviction. The Government must "establish the falsity of the statement alleged to have been made by the defendant under oath, by the testimony of two independent witnesses or one witness and corroborating circumstances."⁸ The evidence must be "strong, clear, convincing and direct."⁹ It must establish "the fact to be proved without the necessity for * * * inference."¹⁰ This is in contrast with circumstantial evidence "which establishes the fact to be proved only through inference based on human experience that a certain circumstance is usually present when another certain circumstance or set of circumstances is present."¹¹

I think appellant was entitled to the protection of the perjury rule.¹² A prosecution for "false statement" under § 1001 is virtually identical with one for "perjury" under § 1621. Falsity is the essential element in each.¹³ Cf. Hammer v. United States, 1925, 271 U.S. 620, 629, 46 S.Ct. 603, 70 L.Ed. 1118. Ordinarily there is one significant difference between the two in that the "false statement" to be prosecuted under § 1001 need not be made under oath. But this difference is absent in the present case. The defendant's non-Communist affidavit was made, and had to be made, under oath. That is the nature of an affidavit. The Government must prove the oath as an element of the offense. But that Congress specifically required false 9(h) affidavits to be prosecuted under § 1001, this case could as easily have been prosecuted under the perjury statute as under the false statement statute.¹⁴ There have been many prosecutions and convictions under the perjury statute for false writings required by law to be under oath and voluntarily submitted to Government departments and agencies.¹⁵ Some of these false writings have been affidavits.¹⁶ There is no reason why a person charged with perjury under the name of false statement should be entitled to fewer safeguards than a person charged with perjury under the name of perjury.¹⁷

I turn first to describe the evidence and then to discuss whether it is sufficient, under the perjury rule, to sustain the verdict on either the "membership" or "support" count of the indictment.

II.

Appellant was an open and avowed member of the Communist Party for thirty years prior to August 24, 1950. He had attended a revolutionary training school, the Lenin Institute of Moscow, in 1930-31, and was a member of the governing body of the Communist Party from 1936 to 1948. But on August 24, 1950, he submitted the following written resignation:

"Gus Hall, National Secretary Communist Party, U. S. A 35 East 12th Street New York, N. Y.

Dear Gus:

I am herewith submitting my resignation from, and severing my affiliation with, the Communist Party.

Please acknowledge by return mail.

Fraternally yours Ben Gold"

Five days later, on August 29, 1950, appellant executed the non-Communist affidavit in issue here. He filed it on August 30, 1950. At the same time he issued a lengthy public statement explaining his resignation, which he afterwards published in the September 1950 issue of his union magazine, "Fur and Leather Worker." The statement included the following:

"I have resigned from the Communist Party. I was a member of the Communist Party for almost 30 years.

"The Congress of the United States denies me my constitutional right to belong to the Communist Party and at the same time to hold office in a trade union.

"* * * Although the Communist Party is a legal party, the Taft-Hartley slave labor act states that a union officer cannot be a member of that Party.

* * * * *

"Our union is now compelled to comply with this law in order to defend our organization and the conditions of our members against the raiding, wrecking and strike breaking activities of the treacherous top officials of CIO and AFL.

* * * * * "As a member of the Communist Party for 30 years, I found the thinking of the members of the Communist Party, its program and activities determined by one, and only one, burning desire — to serve the best interests of labor and the people to end the cruel exploitation of the working people, racial hatred and bigotry, and to build up an economically secure, politically free, united, democratic and peaceful America.

"Neither I nor the Communist Party ever believed in or advocated the overthrow of any democratically-elected government by force and violence.

"Workers, trade union members, progressives, liberals and Communists have a true appreciation and love for democracy. They believe in the Four Freedoms: Freedom from Want, Freedom from Fear, Freedom of Speech and Freedom of Worship. These freedoms can exist only in democratic countries. In police states under ruthless dictatorships, trade unions are outlawed, true liberals, progressives and Communists are jailed and their parties banned. Therefore, honest and true labor leaders, liberals and progressives and Communists are the staunchest fighters for democracy and democratic liberties.

* * * * *

"I have resigned from the Communist Party, but I do not give up my belief in true democracy.

"I have complied with the Taft-Hartley Law as directed by my union, but I shall continue to fight for repeal of this slave labor law and for the reenactment of the Wagner Act."

Appellant served as a member of the United May Day Committee from 1935 to 1940, and in May 1951 and 1952 he marched with his union and spoke at May Day parades.¹⁹

The rest of the Government's case consisted of opinion testimony by seven ex-members of the Communist Party who were presented as expert witnesses on Party teachings.²⁰ Five had separated...