United States v. Hautau

• Citation: 43 F. Supp. 507
• Decision Date: 20 February 1942
• Docket Number: No. 396c.,396c.
• Parties: UNITED STATES v. HAUTAU.
• Court: U.S. District Court — District of New Jersey

43 F. Supp. 507

UNITED STATES v. HAUTAU.

No. 396c.

District Court, D. New Jersey.

February 20, 1942.

Charles M. Phillips, U. S. Atty., and Thorn Lord, Asst. U. S. Atty., both of Trenton, N. J., for the United States.

Solomon Golat, of Newark, N. J., for defendant William Hautau.

FAKE, District Judge.

The issues here arise on demurrer to an indictment against one William Hautau. The substance of the indictment reads as follows: "That on or about the 12th day of July in the year 1940, at the City of Newark, in the County of Essex and State and District of New Jersey and within the jurisdiction of this Court, one William Hautau, being then and there a person employed under the Work Projects Administration, an agency of the United States, unlawfully and feloniously did knowingly and willfully make and use and cause to be used a certain false affidavit for filing in the records of the said Work Projects Administration and by law to be made by the said William Hautau on official Form 608, he, the said William Hautau, then and there well knowing the said affidavit to contain the fraudulent and fictitious statement and entry that he, the said William Hautau, was not a Communist, whereas in truth and in fact, as the said William Hautau then and there well knew, he, the said William Hautau, was a Communist; the making and using of the said affidavit being a matter within the jurisdiction of the said Work Projects Administration, as such agency of the United States; contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States."

There is confusion in the briefs as to whether this indictment is founded on the W. P. A. Act (Title 15 U.S. C.A. §§ 721-728) § 15(f) or upon the Act relating to the presentation of false claims (Title 18 U.S.C.A. § 80) or upon both. Without considering the fact that the cover of the indictment indicates that it is founded upon Title 18 U.S.C.A. § 80, there is sufficient on the face of the indictment to indicate that it is founded on that section. However, should there be any doubt about it, the evil is one easily overcome by a bill of particulars. Having arrived at this conclusion, all issues raised as to the validity of the W. P. A. Act, which is merely incidental here, must be disregarded. In United States v. Kapp, 302 U.S. 214, 58 S.Ct. 182, 82 L.Ed. 205, it was held that those who attempt to obtain payments from the Government by false representations are estopped to defend upon the ground that the statute providing for such payments has been declared unconstitutional, and again in Kay v. United States, 303 U.S. 1, at page 6, 58 S.Ct. 468, 82 L.Ed. 607, the same result is reached as to a statute not therefore voided and on which an attempt was made to question its validity. It was a failure to consider the law as it is found in these two cases which caused the confusion above mentioned.

This, however, does not obviate the necessity of passing on the sufficiency of the use of the word Communist as it appears in the indictment, and in entering upon this consideration it must be emphasized that the W. P. A. statute is not in issue, and the allegations as to the requirements of the W. P. A. Act are for present purposes mere surplusage.

It is obvious that before we are able to deal with the question as to the truth or falsity of the allegation relating to the affidavit, there must be a degree of certainty as to what the word Communist connotes. In the absence of such certainty, the defendant is not advised as to the nature of the charge which he is called upon to answer, and the indictment must fall because of its vagueness and consequent repugnance to the Fifth Amendment.

A New Jersey statute provides that "Any person, not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime, in this or in any other state, is declared to be a gangster; * * *." Laws 1934, c. 155, § 4, N.J.S.A. 2:136-4. After a conviction under this statute, and affirmances by the Supreme Court, State v. Pius, 118 N.J.L. 212, 192 A. 89, and the Court of Errors and Appeals of the State, 120 N.J.L. 189, 198 A. 837, the case reached the United States Supreme Court on the issue of vagueness in the statute and repugnance to the due process clause of the Fourteenth Amendment; Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 619, 83 L.Ed. 888. In the opinion, Mr. Justice Butler quotes from Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322: "That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law", and after analyzing the language of the statute he concludes as follows: "The challenged provision condemns no act or omission; the terms it employs to indicate what it purports to denounce are so vague, indefinite and uncertain that it must be condemned as repugnant to the due process clause of the Fourteenth Amendment."

In State v. Klapprott, 127 N.J.L. 395, 22 A.2d 877, the Supreme Court of New Jersey had before it a New Jersey criminal statute in which the terms "hatred", "abuse" and "hostility" were employed. The statute made it a misdemeanor to utter any statement inciting, promoting or advocating hatred, abuse, violence or hostility against any group residing in the State by reason of race, color, religion or manner of worship. N.J.S.A. 2:157B-5. Mr. Chief Justice Brogan, speaking for the court, held the words above quoted to be vague and indefinite, ruling that the demurrer, which had been directed to the indictments, should have been sustained.

Straying outside the briefs and into the field of Semantics, it is interesting and pertinent to note what Chase says in his book on the Tyranny of Words at pages 10 and 11: "Let me ask you a question:", he writes, "Does communism threaten the world? Unless you are conscious of the dangers lying in the use of abstract terms, you may take this question seriously. You may personify `communism' as...