United States v. Remington

• Decision Date: 22 August 1951
• Docket Number: No. 293,Docket 22045.,293
• Citation: 191 F.2d 246
• Parties: UNITED STATES v. REMINGTON.
• Court: U.S. Court of Appeals — Second Circuit

191 F.2d 246 (1951)

UNITED STATES v. REMINGTON.

No. 293, Docket 22045.

United States Court of Appeals Second Circuit.

Argued June 15, 1951.

Decided August 22, 1951.

Winthrop, Stimson, Putnam & Roberts, New York City, for appellant, William C. Chanler, New York City, Joseph L. Rauh, Jr., Washington, D. C., James S. Rosenman, and John K. Tabor, New York City, of counsel.

Irving H. Saypol, U. S. Atty., New York City, for appellee, Bruno Schachner, Roy M. Cohn, John M. Foley, Albert A. Blinder, Joseph N. Friedman, James B. Kilsheimer, III, Stanley D. Robinson and Robert Rubinger, Asst. U. S. Attys., New York City, of counsel.

Before SWAN, Chief Judge, and AUGUSTUS N. HAND and L. HAND, Circuit Judges.

SWAN, Chief Judge.

After a protracted jury trial the appellant was found guilty of the crime of perjury in testifying before a grand jury that he had never been a member of the Communist Party.¹ The evidence submitted to the jury related to three periods, in each of which the prosecution specified in a bill of particulars that the appellant was a member of the Party. The first period covered the years 1936-7, when he was employed as a TVA messenger at Knoxville, Tennessee; the second covered the years 1937-40, during which he was a student at Dartmouth and Columbia; and the third covered the years 1940-44, when he was employed in Washington.² The jury's general verdict gives no intimation as to the period or periods in which they found him to have been a member of the Communist Party. The appeal challenges the validity of the indictment, the sufficiency of the evidence, the adequacy of the charge to the jury, and the correctness of numerous rulings of the court in the course of the trial. Our conclusion that the judgment must be reversed on account of the inadequacy of the charge to the jury makes unnecessary discussion of many of appellant's contentions.

1. The Indictment: At the commencement of the trial the court denied a motion to dismiss the indictment for failure to state an offense. The indictment alleged that in May 1950 the defendant appeared as a witness before a grand jury for the southern district of New York, which was investigating possible violations of the espionage laws; that he was asked the question: "At any time have you ever been a member of the Communist Party?" and he answered under oath, "I have never been"; and that "the aforesaid testimony of the defendant, as he then and there well knew and believed, was untrue in that the defendant had been a member of the Communist Party." The statute defines the crime of perjury to be stating under oath "any material matter which he does not believe to be true"³. Thus perjury consists in testifying to the truth of a fact which the accused does not believe to be true;⁴ his oath must contradict his belief as to the fact sworn to, for otherwise his oath is not wilfully false. In the case at bar the indictment charged that Remington did not believe his denial of membership in the Communist Party, since it alleged that he "well knew and believed" that his testimony was untrue. The further allegation that he had in fact been a member of the Party was surplusage,⁵ but proof of the fact of membership might be relevant on the issue of his belief that he had been a member. There was no error in denying the motion to dismiss the indictment for failure to charge a crime.

2. Sufficiency of the Evidence: As to this it will suffice to say that we find no error in the court's refusal to direct a verdict of acquittal. Since the evidence upon a new trial, if there be one, may be different, there is no need to discuss the evidence in the present record.

3. The Charge: The principal attack upon the judgment of conviction concerns the charge to the jury. It contained the following instruction: "To find membership in the Communist Party you must find that the defendant performed the act of joining the party. The act of joining is crucial. This is not to say that you must find evidence of the very act of joining the party, but rather from all the evidence you must be convinced beyond a reasonable doubt that he was, in fact, a member of the Communist Party, and was accepted as such by the Party."

This is all we can find by way of definition of what constituted membership in the Party. To this instruction the defendant excepted, because the language following the statement that "the act of joining is crucial" made the charge too "vague and indefinite" to constitute any definition at all of what facts the jury must find in order to convict the defendant. Because of the peculiar rule concerning proof in perjury cases, we think the exception was well taken. That rule requires "direct" proof of the crime by two witnesses who testify that the accused violated his oath, or "direct" proof by one witness plus corroborating circumstances.⁶ Since the crime of perjury consists in the contradiction between the accused's oath and his belief, the only "direct" evidence of his guilt would seem to be his own declarations of his belief. But the law is well settled that his declarations, if oral, will not satisfy the rule, although they will if written and adequately corroborated.⁷ This distinction was laid down in United States v. Wood, 14 Pet. 430, 10 L.Ed. 527, which has been often followed.⁸ Since only written declarations will suffice, it follows that if the critical issue must be proved by "direct" evidence, there could be no conviction unless the accused had made contradictory written declarations. But it is clear that perjury convictions are not limited to such cases. Hence it must be that the rule peculiar to perjury as to the character of the proof, means that it is the facts from which the jury may infer the accused's state of mind that must be proved by "direct" evidence. And this view is confirmed by Chief Justice Vinson's opinion in American Communications Ass'n v. Douds, 339 U.S. 382, 411, 70 S.Ct. 674, 690, 94 L.Ed. 925, where it is said: "* * * while objective facts may be proved directly, the state of a man's mind must be inferred from the things he says or does. * * * False swearing in signing the affidavit must, as in other cases where mental state is in issue, be proved by the outward manifestations of state of mind. In the absence of such manifestations, which are as much `overt acts' as the act of joining the Communist Party, there can be no successful prosecution for false swearing."

Hence the doctrine that perjury must be proved by the direct testimony of two witnesses or one corroborated witness means that the witnesses must testify to some "overt act" from which the jury may "infer" the accused's actual belief.

We do not see how the perjury rule can in practice be applied at all in such a case as the present unless the judge shall single out such "overt acts" as furnish a rational basis for inferring what the accused thought constituted membership and which were supported as the rule requires, and shall then instruct the jury that unless they believe the testimony as to such facts — or at least one of them — and think that because of it, taken with any corroborating evidence, the accused must have believed he was a member, they cannot find him guilty. The jury's verdict of guilt presupposes that they have made some definition of their own as to what the accused thought constituted membership and have found some act by him from which they have inferred that he believed himself a member, as so defined. Surely the definition of membership is a vital part of the "overt acts" from which the accused's belief is to be inferred. Unless the court shall instruct the jury in the manner suggested, the rule becomes no more than that there must be in the "direct" proof some "overt act" from which the jury might "infer" the guilty state of mind, but which they may totally disregard in finding their verdict. To ascribe such meaning to the rule would deprive the accused of the full protection which it is intended to afford him. Moreover, the vagueness of the charge was increased by the instruction that the jury might draw the reasonable inferences and conclusions from the evidence, whether the evidence be a direct statement of fact or of circumstance. The jury was told, "You may not have direct proof of a fact but you may have circumstances from which you are able to draw reasonable conclusions and deductions." Hence, despite recital in the charge of the rule as to two witnesses or one corroborated witness, the jury may have thought that they could select such evidence as they chose as proof of guilt and were free to convict on circumstantial evidence alone, which is not the law in the federal courts.⁹

As indicated above it is our opinion that the perjury rule requiring direct evidence cannot be applied unless the court specifically declares what are the "overt acts" which the jury must find, and which the court decides are properly supported under the perjury rule and of themselves form a rational support for finding that the accused's oath and his belief conflicted. In the case at bar this demanded that the judge point out what facts so supported would justify a finding that the accused did not believe that he had never been a member of the Communist Party. Whatever may be thought of the archaic rule as to proof of perjury, it is still the law in the federal courts and its breach in this case operated unfairly, for the accused never learned until the filing of the government's brief on appeal what acts the prosecution would contend showed that he believed himself to have been a member of the Party. In opposing a motion for a bill of particulars, counsel for the government argued that it was "most difficult" to define what constituted membership; and the court did not require the prosecution to specify what facts it would rely on to prove an act of joining or to justify an inference that the accused knew he was a member. The result of leaving the issue so at large...