Scales v. United States, No. 1

CourtUnited States Supreme Court
Writing for the CourtHARLAN
Citation6 L.Ed.2d 782,367 U.S. 203,81 S.Ct. 1469
PartiesJunius Irving SCALES, Petitioner, v. UNITED STATES of America. Re
Docket NumberNo. 1
Decision Date05 June 1961

367 U.S. 203
81 S.Ct. 1469
6 L.Ed.2d 782
Junius Irving SCALES, Petitioner,

v.

UNITED STATES of America.

No. 1.
Reargued Oct. 10, 1960.
Decided June 5, 1961.
Rehearing Denied June 19, 1961.

See 366 U.S. 978, 81 S.Ct. 1912.

[Syllabus from pages 203-204 intentionally omitted]

Page 204

Mr. Telford Taylor, New York City, for petitioner.

Mr. John F. Davis, Washington, D.C., for respondent.

Page 205

Mr. Justice HARLAN delivered the opinion of the Court.

Our writ issued in this case (358 U.S. 917, 79 S.Ct. 289, 3 L.Ed.2d 237) to review a judgment of the Court of Appeals (4 Cir., 260 F.2d 21) affirming petitionr § conviction under the so-called membership clause of the Smith Act. 18 U.S.C. § 2385, 18 U.S.C.A. § 2385. The Act, among other things, makes a felony the acquisition or holding of knowing membership in any organization which advocates the overthrow of the Government of the United States by force or violence.1 The indictment charged that from January 1946 to the date of its filing (November 18, 1954) the Communist Party of the United States was such an organization, and that petitioner

Page 206

throughout that period was a member thereof, with knowledge of the Party's illegal purpose and a specific intent to accomplish overthrow 'as speedily as circumstances would permit.'

The validity of this conviction is challenged on statutory, constitutional, and evidentiary grounds, and further on the basis of certain alleged trial and procedural errors. We decide the issues raised upon the fullest consideration, the case having had an unusually long history in this Court.2 For reasons given in this opinion we affirm the Court of Appeals.

I.
Statutory Challenge.

Petitioner contends that the indictment fails to state an offense against the United States. The claim is that § 4(f) of the Internal Security Act of 1950, 64 Stat. 987,

Page 207

50 U.S.C. § 781 et seq., 50 U.S.C.A. § 781 et seq., constitutes a pro tanto repeal of the membership clause of the Smith Act by excluding from the reach of that clause membership in any Communist organization. Section 4(f) provides:

'Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute. The fact of the registration of any person under section 7 or section 8 of this title as an officer or member of any Communist organization shall not be received in evidence against such person in any prosecution for any alleged violation of subsection (a) or subsection (c) of this section or for any alleged violation of any other criminal statute.'

To prevail in his contention petitioner must, of course, bring himself within the first sentence of this provision, since the second sentence manifestly refers only to exclusion from evidence of the fact of registration, thus assuming that a prosecution may take place.

We turn first to the provision itself, and find that, as to petitioner's construction of it, the language is at best ambiguous if not suggestive of a contrary conclusion. Section 4(f) provides that membership or office-holding in a Communist organization shall not constitute 'per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute.' Petitioner would most plainly be correct if the statute under which he was indicted purported to proscribe membership in Communist organizations, as such, and to punish membership per se in an organization engaging in proscribed advocacy. But the membership clause of the Smith Act on its face, much less as we construe it in this case, does not do this, for it neither proscribes membership in Communist organizations, as such, but only in organizations engaging in advocacy of violent overthrow, nor punishes membership

Page 208

in that kind of organization except as to one 'knowing the purposes thereof,' and, as we have interpreted the clause, with a specific intent to further those purposes (infra, 367 U.S. at pages 219—222, 81 S.Ct. at pages 1481—1483). We have also held that the proscribed membership must be active, and not nominal, passive or theretical (infra, 367 U.S. at pages 222—224, 81 S.Ct. at pages 1482—1484). Thus the words of the first sentence of § 4(f) by no means unequivocally demand the result for which petitioner argues. When we turn from those words to their context, both in the section as a whole and in the scheme of the Act of which they are a part, whatever ambiguity there may be must be resolved, in our view, against the petitioner's contention.

In the context of § 4 as a whole, the first sentence of subsection (f) does not appear to be a provisions repealing in whole or in part any other provision of the Internal Security Act. Subsection (a) of § 4 makes it a crime

'for any person knowingly to combine, conspire, or agree with any other person to perform any act which would substantially contribute to the establishment within the United States of a totalitarian dictatorship * * * the direction and control of which is to be vested in, or exercised by or under the domination or control of, any foreign government, foreign organization or foreign individual * * *.'

Subsection (c) makes it a crime for any officer or member of a 'Communist organization' to obtain classified information. We should hesitate long before holding that subsection (f) operates to repeal pro tanto either one of these provisions which are found in the same section of which subsection (f) is a part; and indeed the petitioner does not argue for any such quixotic result. The natural tendency of the first sentence of subsection (f) as to the criminal provisions specifically mentioned is to provide clarification of the meaning of those provisions, that is, that an offense is not made out on proof of mere member-

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ship in a Communist organization. As to these particularly mentioned criminal provisions immunity, such as there is, is specifically granted in the second sentence only, where it is said that the fact of registration shall not be admitted in evidence. Yet petitioner argues that when we come to the last phrase of the first sentence, the tag 'or * * * any other criminal statute,' the operative part of the sentence, 'membership * * * shall (not) constitute per se a violation,' has an altogether different purport and effect. What operated as a clarification and guide to construction to the specifically identified provisions is, petitioner argues, a partial repealer as to the statutes referred to in the omnibus clause at the end of the sentence.

It seems apparent from the foregoing that the language of § 4(f) in its natural import and context should not be taken to immunize members of Communist organizations from the membership clause of the Smith Act, but rather as a mandate to the courts charged with the construction of subsections (a) and (c) 'or * * * any other criminal statute' that neither those two named criminal provisions nor any other shall be construed so as to make 'membership' in a Communist organization 'per se a violation.' Indeed, as we read the first sentence of § 4(f), even if the membership clause of the Smith Act could be taken as punishing naked Communist Party membership, it would then be our duty under § 4(f) to construe it in accordance with that mandate, certainly not to strike it down. Although we think that the membership clause on its face goes beyond making mere Party membership a violation, in that it requires a showing both of illegal Party purposes and of a member's knowledge of such purposes, we regard the first sentence of § 4(f) as a clear warrant for construing the clause as requiring not only knowing membership, but active and purposive membership, purposive that is as to the organization's criminal ends. (Infra, 367 U.S. at pages 219—244, 81 S.Ct. at pages 1481—1484.) By its terms, then, subsection (f) does not

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effect a pro tanto repeal of the membership clause; at most it modifies it.

Petitioner argues that if the § 4(f) provision does not bar this prosecution under the membership clause, then the phrase 'or of any other criminal statute' becomes meaningless, for there is no other federal criminal statute that makes this sort of membership a crime. But the argument assumes the answer. The first sentence was intended to clarify, not repeal, § 4(a) of the Internal Security Act. By a parity of reasoning, its effect on 'any other criminal statute' is also clarification, not repeal.

Petitioner's contentions do not stop, however, with the words of § 4(f) itself. The supposed partial repeal of the membership clause by that provision, it is claimed, is a consequence of the latter's purpose in the whole scheme of the Internal Security Act of 1950, as illuminated by its legislative history. The argument runs as follows: The core of the Internal Security Act is its registration provisions (§§ 7 and 8), requiring disclosure of membership in the Communist Party following a valid final determination of the Subversive Activities Control Board as to the status of the Party. See No. 12, ante, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625. The registration requirement would be rendered nugatory by a plea of selfi ncrimination and could only be save by a valid grant of immunity from prosecution by reason of any such disclosure. However, the immunity provided by the second sentence of § 4(f) is insufficient, in that it forbids only the use of the 'fact of * * * registration' as evidence in any future prosecution, and not also its employment as a 'lead' to other evidence. See Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110; Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306. Therefore to effectuate the congressional purpose it becomes necessary to consider the first sentence of § 4(f) a pro tanto repealer of the membership clause of the Smith Act,...

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406 practice notes
  • Law Students Civil Rights Research Coun., Inc. v. Wadmond, 68 Civ. 2917
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 17, 1969
    ...not participate in its unlawful activities * * *," 384 U.S. at 17, 86 S.Ct. at 1241, a position foreshadowed by Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961). See also United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Haskett v. Washingt......
  • Davis v. Warden, Joliet Correctional Inst. at Stateville, No. 88-1590
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 9, 1989
    ...the array within the proper period of time. See id. at 631-32; see also Scales v. United States, 260 F.2d 21, 45-46 (4th Cir.1958) aff'd, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961). The subsequent discussion of the jury selection process used is dicta. Furthermore, the jury commissio......
  • Pope v. United States, No. 18272.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 14, 1967
    ...we pointed out that a sponsor's recommendation was not the sole feature of the selection process in Nebraska. See Scales v. United States, 367 U.S. 203, 259, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961), affirming, on this point, 260 F.2d 21, 45 (4 Cir. 1958); United States v. Hoffa, 349 F.2d 20, 29......
  • Brandywine-Main Line Radio, Inc. v. FCC, No. 71-1181.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 25, 1972
    ...rights are involved. The late Justice Black described this test as having a "freedom-destroying nature," Scales v. United States, 367 U.S. 203, 261, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961). "Since that `test' denies that any speech, publication or petition has an `absolute' right to protection ......
  • Request a trial to view additional results
403 cases
  • Law Students Civil Rights Research Coun., Inc. v. Wadmond, 68 Civ. 2917
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 17, 1969
    ...not participate in its unlawful activities * * *," 384 U.S. at 17, 86 S.Ct. at 1241, a position foreshadowed by Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961). See also United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Haskett v. Washingt......
  • Davis v. Warden, Joliet Correctional Inst. at Stateville, No. 88-1590
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 9, 1989
    ...the array within the proper period of time. See id. at 631-32; see also Scales v. United States, 260 F.2d 21, 45-46 (4th Cir.1958) aff'd, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961). The subsequent discussion of the jury selection process used is dicta. Furthermore, the jury commissio......
  • Pope v. United States, No. 18272.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 14, 1967
    ...we pointed out that a sponsor's recommendation was not the sole feature of the selection process in Nebraska. See Scales v. United States, 367 U.S. 203, 259, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961), affirming, on this point, 260 F.2d 21, 45 (4 Cir. 1958); United States v. Hoffa, 349 F.2d 20, 29......
  • Brandywine-Main Line Radio, Inc. v. FCC, No. 71-1181.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 25, 1972
    ...rights are involved. The late Justice Black described this test as having a "freedom-destroying nature," Scales v. United States, 367 U.S. 203, 261, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961). "Since that `test' denies that any speech, publication or petition has an `absolute' right to protection ......
  • Request a trial to view additional results

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