Viereck v. United States

Decision Date01 March 1943
Docket NumberNo. 458,458
Citation318 U.S. 236,87 L.Ed. 734,63 S.Ct. 561
CourtU.S. Supreme Court

Mr. O. R. McGuire, of Washington, D.C., for petitioner.

Mr. Wendell Berge, Asst. Atty. Gen., for respondent.

Mr. Chief Justice STONE delivered the opinion of the Court.

Petitioner was convicted on three counts of an indictment, each charging him with the willful omission to state a material fact required to be stated in a supplemental registration statement filed by him with the Secretary of State, in violation of the penal provisions of the Act of June 8, 1938, 52 Stat. 631, as amended by the Act of August 7, 1939, 53 Stat. 1244, 22 U.S.C.A. § 611 et seq., requiring the registration of certain agents of foreign principals. The question decisive of petitioner's challenge to the validity of his conviction is whether the statute or any authorized regulation of the Secretary required the statement which petitioner omitted to make.

Section 2 of the Act of 1938, as amended, provides that every person acting as 'agent of a foreign principal', either as public-relations counsel, publicity agent or representative, with exceptions not now relevant, must file with the Secretary of State a registration statement, on a form prescribed by the Secretary, containing certain specified items of information. These include a copy of the registrant's contract with his principal, or a statement of its terms and conditions if oral, the compensation to be paid under the contract, and the names of all who have contributed or promised to contribute to the compensa- tion. Beyond the terms and conditions of the registrant's contracts with foreign principals, the statute made no requirement that the original registration statement contain any information as to the registrant's services or activities either in performance of his contract of employment or otherwise.

By § 3 every registrant is required to file at the end of each six months' period, following his original registration, a supplemental statement 'on a form prescribed by the Secretary, which shall set forth with respect to such preceding six months' period—(a) Such facts as may be necessary to make the information required under section 2 hereof accurate and current with respect to such period', and '(c) A statement containing such details required under this Act as the Secretary shall fix, of the activities of such person as agent of a foreign principal during such six months' period'. And by § 6, 'The Secretary is authorized and directed to prescribe such rules, regulations, and forms as may be necessary to carry out this Act'. Section 5 imposes penal sanctions upon 'any person who willfully fails to file any statement required to be filed under this Act, or in complying with the provisions of this Act, makes a false statement of a material fact, or willfully omits to state any material fact required to be stated therein'.

In purported conformity to the statute, the Secretary, on September 15, 1939, promulgated regulations and prescribed a form of 'Supplemental Registration Statement'. Chapter IV, regulation 12, of the regulations provided: 'Agents of foreign principals who engage, whether or not on behalf of their foreign principal, in activities not included among the exceptions set forth in the act and regulations shall be considered subject to the requirement of registration'. The prescribed form of Supplemental Registration Statement directed the registrant to make a statement giving certain items of information, No. 11 of which was 'Comprehensive statement of nature of business of registrant'.

The three counts of the indictment on which petitioner was convicted charged that in three successive supplemental registration statements filed by him on April 23, 1940, October 25, 1940, and April 25, 1941, as the agent of German principals, he had knowingly and willfully failed to disclose, in response to item 11 which called for a 'Comprehensive statement of nature of business of registrant', numerous activities in which he had engaged during the period covered by the supplemental registration statement. On the trial it appeared that petitioner, on September 26, 1939, had registered as agent and United States correspondent for the Munchner Neueste Nachrichten, a Munich newspaper, and had later lodged with the State Department a copy of his contract, dated September 27, 1939, as agent and editorial writer for the German Library of Information, an agency of the German government, to do editorial work in connection with 'Facts in Review', a publication of the Library. On March 17, 1941, petitioner registered his contract, with a person associated with the Munich newspaper, to act as agent for the publication in the United States of a book 'The One Hundred Families Who Rule Great Britain'.

There was also evidence from which the jury could have found that during the eighteen months' period covered by petitioner's three supplemental registration statements, and from August 3, 1940, he had controlled and financed Flanders Hall, a corporation which published numerous books and pamphlets from manuscripts furnished by petitioner; that it had also published other books furnished by petitioner which purported to be English translations of French or Dutch publications, or to have been compiled from English sources, but which were in fact translations of German books published by the Deutsche Informationsstelle of Berlin. All were highly critical of British foreign and colonial policy. During this period petitioner actively participated in the formation of the 'Make Europe Pay War Debts Committee', and the 'Islands for War Debts Committee', and made use of these organizations as a means of distributing propaganda through the press and radio and under Congressional frank. He also consulted with and was active in writing speeches for various members of Congress, and in securing distribution of the speeches under Congressional frank.

In making the statement required by item 11 in each of his three supplemental registration statements, petitioner responded to the request for a comprehensive statement of the nature of his business by the single phrase 'Author and journalist'. He made no further disclosure of his various activities during the period covered by the supplemental registration statements.

When submitting the case to the jury, the trial court, at the Government's request, charged that 'if you find that the defendant engaged in the activities set forth in the indictment, it is not necessary that you find that he engaged in such activities on behalf of his foreign principal or principals. It is sufficient if you find that he engaged in the activities, whether on behalf of his foreign principal or principals or on his own behalf'. On appropriate objection and exception to this instruction, petitioner contended that under the statute he was not required to disclose his activities on his own behalf but only those for foreign principals. The jury returned a verdict of guilty, the judgment of conviction was affirmed by the Court of Appeals for the District of Columbia, 130 F.2d 945, and we granted certiorari. 317 U.S. 618, 63 S.Ct. 202, 87 L.Ed. —-.

As the charge left the jury free to return a verdict of guilty if it found that petitioner had willfully failed to disclose activities which were wholly on his own behalf the conviction can be sustained only if the failure to disclose such activities was a criminal offense. In its brief and on the argument here the Government accordingly conceded that—even though the evidence might warrant a jury's finding that all petitioner's activities were in fact in behalf of his foreign principals—the conviction cannot stand if the charge was erroneous. See Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, at page 209, 87 L.Ed. —-, decided December 21, 1942, p. 3; Pierce v. United States, 314 U.S. 306, 310, 62 S.Ct. 237, 239, 86 L.Ed. 226. We are thus brought to the question whether the statute, supplemented by the regulations of the Secretary, required such information to be given and imposed penal sanctions for petitioner's willful failure to give it.

The Act of 1938 requiring registration of agents for foreign principals was a new type of legislation adopted in the critical period before the outbreak of the war. The general purpose of the legislation was to identify agents of foreign principals who might engage in subversive acts or in spreading foreign propaganda, and to require them to make public record of the nature of their employment. But the means adopted to accomplish that end are defined by the statute itself, which, as will presently appear more in detail, followed the recommendations of a House Committee which had investigated foreign propaganda. These means included the requirement of registration of agents for foreign principals with which it appears that petitioner complied—and the requirement that the registrant give certain information concerning his activities as such agent.

One may be subjected to punishment for crime in the federal courts only for the commission or omission of an act defined by statute, or by regulation having legislative authority, and then only if punishment is authorized by Congress. United States v. George, 228 U.S. 14, 20-22, 33 S.Ct. 412, 414-415, 57 L.Ed. 712; Williamson v. United States, 207 U.S. 425, 453, 462, 28 S.Ct. 163, 173, 177, 52 L.Ed. 278; United States v. Standard Brewery, 251 U.S 210, 219, 220, 40 S.Ct. 139, 141, 64 L.Ed. 229; United States v. Eaton, 144 U.S. 677, 12 S.Ct. 764, 36 L.Ed. 591; United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563; United States v. Smull, 236 U.S. 405, 35 S.Ct. 349, 59 L.Ed. 641; In re Kollock, 165 U.S. 526, 17 S.Ct. 444, 41 L.Ed. 813. Penal sanctions attach here for willful failure to file a statement when required, or if the registrant 'willfully omits to state any material fact required to be stated'. Unles...

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