United States v. Lattimore

• Decision Date: 02 May 1953
• Docket Number: Cr. No. 1879-52.
• Citation: 112 F. Supp. 507
• Parties: UNITED STATES v. LATTIMORE.
• Court: U.S. District Court — District of Columbia

112 F. Supp. 507

UNITED STATES v. LATTIMORE.

Cr. No. 1879-52.

United States District Court District of Columbia.

May 2, 1953.

COPYRIGHT MATERIAL OMITTED

Leo A. Rover, U. S. Atty. for the District of Columbia, Washington, D. C., for plaintiff.

Thurman Arnold and Joseph C. O'Mahoney, Washington, D. C., for defendant.

YOUNGDAHL, District Judge.

On December 16, 1952, defendant Owen Lattimore was indicted on seven counts of perjury alleged to have been committed before the Senate Internal Security Subcommittee, (hereinafter referred to as the Committee). On December 19, 1952, defendant entered a plea of not guilty to said indictment and was ordered to file all preliminary motions by February 16, 1953. Trial date was set for May 11, 1953.

Defendant filed ten motions.¹ Exhaustive written briefs were served and filed in connection therewith. On March 31 and April 1, 1953, oral arguments were heard on the motions for change of venue, for continuance and to dismiss the indictment and the various counts thereof. Arguments on the other motions were deferred pending determination of the motions herewith presented.

For an understanding of the charges against defendant and how they arose some background is necessary. Defendant, by many people, has been considered an expert in Far Eastern Affairs and a student of the problems of that part of the world. By others, he has been considered a Communist or fellow traveler. From 1934 to 1941, defendant was editor of the magazine, "Pacific Affairs".² For a time he was associated with the Office of War Information and the Pauley Reparations Commission.³

Charges against defendant were first investigated by a Subcommittee of the Senate known as the Tydings Committee. This Committee concluded there was no foundation to the charges against him.⁴ Subsequently, in November, 1950, the Senate Judiciary Committee by Senate Resolution 366 (81st Congress, 2nd Session), was itself, or by means of a subcommittee, authorized to make an investigation and study of the Internal Security Act of 1950, 50 U.S.C.A. § 781 et seq., "the administration, operation and enforcement of other laws relating to espionage, sabotage and the protection of internal security of the United States" and "effects of subversive activities in the United States."

Upon being summoned by the Committee to appear before it in executive session, defendant was questioned concerning his past life and, more particularly, his association with the Institute of Pacific Relations and as editor of its magazine, "Pacific Affairs".⁵ In July, 1951, the Committee conducted open hearings and questioned other witnesses. These hearings terminated in February, 1952. On February 26, 1952, defendant was permitted to testify before the Committee and made his statement a part of the record.⁶ In the course of making his statement, defendant was questioned further. This portion of the hearings lasted thirteen days. It is apparent from the record of the hearings and the indictment that the Committee was interested, from its study of the records of the Institute of Pacific Relations, in finding out the extent to which the Institute of Pacific Relations may have been infiltrated or controlled by Communists or those connected with the Communist movement and what influence the Institute of Pacific Relations may have had on the foreign policy of the United States of America. In his testimony, defendant denied being a Communist, a member of the Communist Party, a Soviet spy or a fellow traveler.⁷

Apparently the Committee could discover no evidence from its investigation or the testimony of the various witnesses that defendant lied in denying that he was a Communist, a member of the Communist Party, a Soviet spy or a fellow traveler. This case therefore is unlike U. S. v. Remington, 2 Cir., 191 F.2d 246, where defendant was charged with perjury in denying that he was a member of the Communist Party, and U. S. v. Hiss, 2 Cir., 185 F.2d 822, where defendant was charged with lying in denying that he turned over to certain people important security documents.

In the indictment under consideration defendant is not charged with lying in denying that he was a Communist or a member of the Communist Party. The indictment here charges defendant with committing perjury as to his sympathies with Communism or Communist interests (count one); whether he had been told or knew certain persons were Communists (counts two and three); whether he had published certain articles in "Pacific Affairs" by Communists (count four); whether he had a luncheon engagement with Soviet Ambassador Oumansky in July, 1941 after the Hitler invasion (count five); that he did not at the request of Lauchlin Currie take care of his mail at the White House (count six); and whether he had made prearrangements with the Communist Party to get into Yenan (count seven).

It appears from the record and the hearings of the Committee that the charges reflected in the seven counts in the indictment related to a period of fifteen to twenty years before the hearings. With this factual background we will proceed to a consideration of the several motions presented to the Court.

I.

Change of Venue.

Although defendant requested the privilege of making the motions for a change of venue and continuance at a later date, the Court ordered that the motions be argued at the hearing of the motions attacking the indictment. However, the motion to inspect the grand jury minutes, and the motions for production of documents and discovery were deferred to a date to be subsequently set by the Court should a hearing of these motions be deemed necessary by defendant.

A sufficient showing has not been made to justify a change of venue. Title 18, U.S.C.A., Federal Rules of Criminal Procedure, Rule 21(a) provides that a change of venue shall be granted:

"* * * if the court is satisfied that there exists in the district or division where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that district or division."

Charges against this defendant have received nation-wide publicity. Much has been written about this case pro and con since its inception. There is no indication or proof that defendant cannot have as fair and impartial trial here as in any other Federal Judicial District. This Court is not satisfied that "there exists in this district so great a prejudice against the defendant that he cannot obtain a fair and impartial trial." The motion for a change of venue is therefore denied. Dennis v. U. S., 84 App.D.C. 31, 171 F.2d 986; U. S. v. Eisler, D.C., 75 F.Supp. 634.

II.

Motion for Continuance.

Defendant moves to continue the trial to a date not earlier than January, 1954. He bases his motion upon the decision in Delaney v. U. S., 1 Cir., 199 F.2d 107. But that case is clearly distinguishable from the instant case. In Delaney, defendant was indicted for certain crimes alleged to have been committed while he was Collector of Internal Revenue at Boston. He was removed from office. Shortly before the commencement of his trial certain hearings were held before a Congressional Committee involving charges against Delaney and his conduct while in office. Much publicity adverse to Delaney was given to those charges by radio, news services and the press. The Court of Appeals held that in view of this derogatory publicity at a time so near to the trial it was error not to grant another continuance. No such factual situation appears here. There is no evidence here that would warrant a continuance based on the holding in the Delaney case. In our own jurisdiction recently, Judge Matthews in a well written opinion discussed the applicability of the Delaney case in denying a motion for change of venue. U. S. v. Carper, 13 F.R.D. 483, 487, United States District Court for the District of Columbia, January 14, 1953. The Court stated that any apprehension of prejudice and inability to get a fair trial was "based upon conjecture and speculation." This the Court believes to be the situation in the case at bar.⁸

Therefore, although there is no justification for a continuance on the theory of the Delaney case, the Court feels that a reasonable continuance should be granted because of the amount of work that will be required in preparation for this case both by defendant and the Government. In fact, the Government made no objection to a continuance to early fall.

A number of additional motions are still to be argued and disposed of. The Court will require that all remaining motions be argued prior to June 1st and the case will be set down for trial on October 6, 1953. It is the Court's conclusion that the case should be tried at that time and that no further continuance should be granted.

III.

Motion to Dismiss Indictment.

The first ground upon which defendant relies to sustain his position as to the invalidity of the indictment is that it does not allege the name of the person who administered the oath to defendant. Defendant concedes that this is a technical point and voices the hope that the indictment be stricken down on the merits rather than on this technicality.⁹ Since the argument on the motions, defendant's position on this point has been fortified by the recent decision of the Fifth Circuit, U. S. v. Debrow, 5 Cir., 203 F.2d 699, where the Court in a two to one decision struck down an indictment which failed to set forth the name of the Senator who administered the oath to certain defendants charged with perjury before a Committee of the Senate.

Perjury is defined in the District of Columbia by statute. The District of Columbia perjury statute,¹⁰ as were many others, was taken from the Act of 23 George, chap. 11. Title 23, D.C.Code, § 204 is almost word for word the same as R.S. § 5396 and former 18 U.S.C. § 558 since dropped from the Criminal Code. It may well be true that prior to the revision of the Code and adoption of the new ...