Natvig v. United States

• Citation: 236 F.2d 694
• Decision Date: 21 June 1956
• Docket Number: No. 12758.,12758.
• Parties: Marie NATVIG, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

236 F.2d 694 (1956)

Marie NATVIG, Appellant, v. UNITED STATES of America, Appellee.

No. 12758.

United States Court of Appeals District of Columbia Circuit.

Argued October 7, 1955.

Decided June 21, 1956.

Petition for Rehearing Denied August 17, 1956.

Mrs. Jean F. Dwyer, Washington, D. C., for appellant.

Mrs. J. Frank Cunningham, Atty., Dept. of Justice, with whom Mr. Leo A. Rover, U. S. Atty., at the time record was filed, and Michael J. Antonellis, Atty. Dept. of Justice, were on the brief, for appellee.

Mr. Lewis Carroll, Asst. U. S. Atty., also entered an appearance for appellee.

Before BAZELON, FAHY and DANAHER, Circuit Judges.

Petition for Rehearing In Banc Denied August 17, 1956.

DANAHER, Circuit Judge.

Appellant was charged by indictment, in nine counts, with having committed perjury in sworn testimony on February 9 and 11, 1955, before a Hearing Examiner of the Federal Communications Commission. Upon appellant's motion two counts were dismissed before trial. The Government, on its own motion, dismissed four other counts. The jury found appellant guilty on counts 4, 7 and 8. In substance these counts charged that about February 9, 1955, during hearings before a Hearing Examiner of the Federal Communications Commission, appellant had perjuriously testified: count 4, that at a meeting on September 19, 1954, with one Powell, and with Fitzpatrick and Leahy, employees of the F. C. C., she did not tell them she had been a member of the Communist Party, that she had known one Lamb in that connection, and that she had, in fact, consorted with Lamb; count 7, that at meetings September 15 and 21, 1954, with one Powers, special agent of the F. B. I., she did not tell Powers that she had been a member of the Communist Party, that she knew one Lamb in that capacity, and that she had, in fact, consorted with Lamb; and, count 8, that at the meeting with Powers on September 15, 1954, she did not state that she had been a member of the Communist Party.

Appellant assigns various errors which will be mentioned. We have given extended study to the complete record, importantly because of her claim that the Government had offered appellant as a witness in the Federal Communications Commission hearings when it knew that the testimony to be adduced through her was perjurious. We are now satisfied that there is no merit in appellant's contentions as to this aspect of the case which will first be discussed.

On September 15, 1954, appellant voluntarily appeared at the Miami offices of the F. B. I. and introduced herself as "Mary Jones" to special agent Edward J. Powers, who had had no previous acquaintance with her. She told Powers she had read in the newspaper that the F. C. C. was conducting hearings with reference to the reissuance of a television license to a station owned by one Lamb. She told Powers that she had known Lamb as a member of the Communist Party in Ohio during the 1930's when she also had been a member, that she felt an obligation as a loyal citizen to report the facts known to her, for she realized the communications industry was a target of the Communist Party. Powers thereupon called into the conference F. B. I. special agent Schildecker. Both testified at the trial that appellant said she had been a member of the Communist Party from 1934 to 1936; that her Party name was "Minnie Johnson"; that she had known Lamb to be a member of the Party; that she had attended Communist Party strategy meetings in Columbus, Ohio, with Lamb; that she and Lamb had registered at a hotel in Columbus as man and wife; that in 1936 she had attended a convention in Chicago with Lamb; and that later she went to Washington, D. C., with Lamb to attend a founding convention of the National Lawyers Guild. Appellant said she would be willing to testify in the F. C. C. hearings if her identity could be kept confidential. At the close of the interview, she disclosed her true name.¹

Then, Powers teletyped to the Washington office the substance of the information submitted by the appellant. On September 17, 1954, Powers was asked by his superior to ascertain whether appellant would be willing to talk to a representative of the F. C. C. Upon her agreement to do so, appropriate advices were relayed to Washington.

Thereupon, one Edward J. Leahy of the F.C.C. telephoned to "Mary Jones," as she was known to him, and asked if he could talk with her about Lamb. Appellant volunteered to come to Washington to talk with Leahy, and travel arrangements were thereupon made. Upon arrival in Washington, on September 19, 1954, appellant met with Powell, Fitzpatrick and Leahy, representing the F. C.C. For some four hours appellant related her experiences as a member of the Communist Party and her associations with Lamb. We need not summarize the details of appellant's statements which were the subject of testimony by Fitzpatrick and Leahy,² beyond observing that she reiterated with embellishments what she had previously said to F. B. I. agents Powers and Schildecker.

Appellant returned to Miami where on September 21, 1954, she met again with F. B. I. agents Powers and Schildecker for a discussion lasting at least five hours. Appellant volunteered much additional and more specific information about various Communist Party meetings which she had attended during 1934-1937, supplying the names of individuals present, with details as to her associations with Lamb at the meetings and her personal background. Although willing to testify at the F. C. C. hearings, she desired her identity to be kept confidential for she feared embarrassment to her family who had no knowledge of her membership in the Communist Party or of her relationship with Lamb.³

The following day the F. C. C. representatives, Powell, Fitzpatrick and Leahy, on joint telephone extensions, called appellant in Miami to ascertain whether or not she had arrived at a decision about appearing at the F. C. C. hearings. She stated she had refreshed herself since returning to Miami, had supplied the F. B. I. with additional information, but had not yet had an opportunity to talk to her children, which she said she desired to do. Travel arrangements were accordingly made, and when appellant again appeared in Washington on September 23, 1954, she was subpoenaed as a witness in the F. C. C. hearings.

On October 6, 1954, her direct testimony before the Commission's Hearing Examiner consumed an hour and a half. Thereafter she was cross-examined by Lamb's counsel intermittently over some seven days, and when her testimony had been concluded, she returned about October 25, 1954, to Miami.

On February 9, 1955, by counsel for Lamb, appellant was recalled to the F. C. C. hearing before Hearing Examiner Sharfman. She then testified that her prior October testimony was false, and that Powell had induced her to testify she had been a Communist. She also denied that she previously had told Powell, Fitzpatrick and Leahy that she had been a member of the Communist Party, that she had known Lamb in that connection and that she had in fact consorted with him. She denied that she had told F. B. I. special agent Powers substantially the same thing. She denied that on September 15, 1954, at her first meeting with Powers, she had told him that she had been a member of the Communist Party in Cleveland from 1934 to 1936. The questions and her answers as they appeared in the transcript of the hearing before Hearing Examiner Sharfman were read into the record to demonstrate these details.

It is wholly immaterial whether or not Mrs. Natvig had ever been a Communist or had consorted with Lamb or had attended meetings with him. The case turned, not on what was the fact, but on what she had said was the fact. For all that appears if at her meetings September 15, September 19 and September 21, 1954, she had not told the various witnesses what they testified she had said, the Government through its Federal Communications Commission, might not have gone forward with the hearings. It may reasonably be supposed that if she had not made such statements as of the dates mentioned, she would not have been called as a witness before Hearing Examiner Sharfman.

It was further demonstrated that two weeks after the perjurious testimony had been given, various Government witnesses met with the appellant at her request. She then, as of February 25, 1955, and March 2, 1955, told these witnesses that Powell had not coerced her in any way and that her testimony of February 9 and 11, 1955, was false. Two witnesses from the Internal Security Division of the Department of Justice further testified that they had met appellant at her request on February 23, 1955, at which time she stated that her testimony of February 9 and 11 was false, and that she had not been coerced by Powell to give the testimony as originally offered before the F. C. C. in October 1954.

We are satisfied that there is no merit whatever in appellant's claim that the special agents of the F. B. I., Powers and Schildecker, had "presented" appellant as a witness knowing that she would testify falsely. It is clear that appellant herself approached these agents in Miami and that they relayed to their Washington office the substance of the information resulting from their interview. Of course, the appellant was within her right in declining to take the witness stand, but there was no showing from any source that if she was not a Communist, the Government's representatives were so aware, or that she had not, in fact, done the things she told the agents she had done. The trial judge allowed extensive cross-examination of each of the Government's witnesses, indeed appellant was given extraordinary latitude. Control of cross-examination and its course is singularly within the discretion of the trier, and his rulings will normally be guided by the posture in which a particular problem arises, what foundation has been laid for the examining counsel's exploration, the nature...