Petition for Rehearing En Banc Denied February 21, 1964.
Petition for Rehearing by the Division Denied February 21, 1964.
BAZELON, Chief Judge.
The Communist Party of the United States of America appeals its conviction under § 7 and § 15 of the Subversive Activities Control Act
The Act requires each organization found by the Board to be a Communist-action organization to register as such with the Attorney General [§ 7(a)], and file an accompanying statement [§ 7(d)] containing its name and the address of its principal office, the names of its officers and members during the preceding year (together with their aliases), an account of money received and spent during the preceding year (including sources
After the Board's order in this case became final upon entry of the Supreme Court's mandate on October 20, 1961, the Party had until November 19 to register without penalty. Before then, the Attorney General received a letter on Party stationery, dated November 10 and signed only with the Party seal, stating that the Party's officers declined, for fear of self-incrimination, to submit the forms or to authorize anyone to submit them:
The Attorney General replied by telegram on November 17, rejecting the claims of privilege contained in the Party's letter and also rejecting the letter as compliance with the order to register. The Party took no further action.
On December 1, the indictment herein was returned. It charged the Party with eleven counts of failing to register (one for each day between November 20 and November 30), and one count of failing to file the statement. At trial, the Party's failure to register and to file the statement was stipulated. The Government called only one witness. He testified that he had attended a press conference on June 8, 1961 (immediately after the Supreme Court's decision) at which Gus Hall announced the Party's intention not to comply.
The motions to dismiss and for acquittal were denied. The jury was instructed that no issue of self-incrimination was before it, the critical question being whether the Party's failure to comply was intentional rather than accidental or inadvertent. A verdict of guilty was returned on all twelve counts. The court imposed the maximum sentence, fines totaling $120,000, and the Party brought this appeal. We disagree with the trial court's disposition of the self-incrimination issues.
The regulations accompanying § 7 of the Act imposed a duty upon the Party to file certain forms signed by a natural person. To sustain a criminal charge for failure to comply, it must appear that someone was available who was either legally bound or willing to sign. Ordinarily, proof of this essential element may be supplied by presumptions that (1) an organization's legal obligation devolves upon its officers, whose failure to execute the obligation makes the organization liable; and (2) if an officer has legal justification for refusing to act, the organization can provide someone else who will act for it. The question before us is whether these presumptions apply in the circumstances of this case.
This problem must be viewed against the background of American history during the past generation. That history shows that the Communist Party does not stand before the law as an ordinary political group. The Party's special status does not arise from the unpopularity of its views, or the public opprobrium attaching to it and its adherents. See Communist Party v. Subversive Activities Control Board, 367 U.S. at 102-103, 81 S.Ct. at 1413, 6 L.Ed.2d 625. Instead, it arises from the imposition of governmental sanctions upon the Party and its members, based on a special danger to our national security. On that ground, statutes have been sustained which might otherwise have raised serious constitutional objections. See American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925 (1950); Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952); Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954); Communist Party v. Subversive Activities Control Board, 367 U.S. at 104-105, 81 S.Ct. at 1414, 6 L.Ed.2d 625; Scales v. United States, 367 U.S. 203, 224-228, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961); Barenblatt v. United States, 360 U.S. 109, 128, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959). See also American Communications Ass'n v. Douds, supra 339 U.S. at 422, 70 S.Ct. at 696, 94 L.Ed. 925 (opinion of Jackson, J.) Civil disabilities imposed on adherents of the Communist movement include prohibitions on entering the United States,
Most critical for present purposes are the criminal sanctions. Since 1940, the
And with the successful application of the membership clause in Scales v. United States, supra, it is not necessary to prove that a defendant himself has taught, advocated, or encouraged the overthrow or destruction of a government by force or violence. It must be shown that the organization advocates the overthrow, see Noto v. United States, 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836 (1961), but with respect to the Communist Party, Congress has supplied this showing. The Communist Control Act of 1954 declares:
And the Act proceeds:
The conclusion is inescapable that the Communist Party is sui generis. The legislative array facing the Party virtually makes it a criminal conspiracy per se. Confirmation of this status is contained in a series of Supreme Court cases holding that mere association with the Communist Party presents sufficient threat of criminal prosecution to support a claim of the privilege against self-incrimination. Patricia Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170 (1950) (employment by the Party or "intimate knowledge of its workings"); Irving Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (1951); Brunner v. United States, 343 U.S. 918, 72 S.Ct. 674, 96 L.Ed. 1332 (1952) (attendance at Party meetings); Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964 (1955) (membership). It is against this background that we consider whether an officer or non-officer was available to sign the forms on behalf of the Party.
By assuming office in an organization one does not waive his privilege against self-incrimination, even in matters closely related to the organization's affairs. Curcio v. United States, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957). The privilege may be unavailable where the officer's representative duties are involved. Thus, under the "required records" doctrine, an officer may not refuse to produce books and records belonging to the organization on the ground that the contents will incriminate him. United States v. Wilson, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911); United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944). But in those cases, in sharp contrast to
Other cases indicate strongly that when the mere act of producing information is incriminating, the privilege is available even if it makes the information unavailable. Thus, although an officer who produces books and records may be required to supply "auxiliary information," such as authentication of the items produced, United States v. Austin-Bagley Corp., 31 F.2d 229 (2d Cir. 1929), this doctrine is sharply limited to information which creates no danger of incrimination. Curcio v. United States, supra; see Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138 (1920). And this is true even where the officer is asked only to describe the contents of books which he was bound to produce but which were lost or stolen. United States v. Daisart Sportswear, Inc., 169 F.2d 856 (2d Cir. 1948). In Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951), a district court held an officer of the Communist Party in contempt for refusing to produce books and records of the Party subpoenaed by a grand jury. The officer had testified before the grand jury that she had given the books and records to someone else but refused to say to whom, on the ground that she would incriminate herself by "mere disclosure of the name of the recipient of the books." Although the Supreme Court sustained the conviction, its opinion makes clear that the claim of privilege would have been upheld except that the officer had waived her privilege by testifying earlier in the same proceeding to her "membership, activities and office in the Party."
Russell v. United States, 306 F.2d 402 (9th Cir. 1962), held that a statute requiring registration of fire-arms whose possession violated certain other criminal provisions compelled incriminating admissions and was thus an unconstitutional infringement of the fifth amendment privilege. Here, just as in Russell, "the act of registering is necessarily incriminating whether or not any information other than the registrant's name is supplied * * *." 306 F.2d at 410 n. 16. See also United States v. Lombardo, 228 F. 980 (W.D.Wash.1915), aff'd on other grounds, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897 (1916). We hold that the privilege against self-incrimination was available to the officers as legal justification for refusing to sign forms IS-51 and IS-51a.
This does not exhaust the Party's responsibility. The regulations permit the forms to be signed by a "member, employee, attorney, agent, or other person." And it has been held in cases involving the duty of an organization to provide information that if the person selected by the organization to act on its behalf claims the privilege against self-incrimination, it must select someone else who can act without incriminating himself:
United States v. 42 Jars, 162 F.Supp. 944, 946 (D.N.J.1958), affirmed, 264 F.2d 666 (3d Cir. 1959). See also United States v. 3963 Bottles, 265 F.2d 332 (7th Cir. 1959); Simon v. American Tobacco Corp., 192 F. 662 (S.D.N.Y.1912). These cases seem to support a legal presumption that an organization can always find someone willing, even if not legally bound, to act for it. But we think no such presumption can fairly be applied to the Communist Party. Since mere association with the Party incriminates, we cannot assume without proof that anyone is willing to submit data the possession of which implies an "intimate knowledge of [the Party's] workings." Whether or not such a volunteer was available is a question of fact which requires proof.
We must therefore consider who has the burden of such proof. Ordinarily the government must prove beyond a reasonable doubt each element of the offense charged. But where the pertinent information is much more readily available to the defendant than to the government, the burden may be shifted to him, provided this can be done "without subjecting the accused to hardship or oppression." Morrison v. California, 291 U.S. 82, 87-89, 54 S.Ct. 281, 284, 78 L.Ed. 664 (1934). The proviso is required to safeguard the presumption of innocence. In the present case, we assume that the Party would be more likely than the government to know whether a willing volunteer was available.
The government presented no evidence that a volunteer was available. Gus Hall's statement that the Party would not comply with the Act and the Party's letter saying the officers refused to authorize anyone to execute the forms, tended to establish only that the Party did not wish to comply and did not try to get someone to act on its behalf. Where, as here, an element of the offense requires proof that the defendant could have complied, it is not established merely by proof that the defendant had no intention of complying.
In Heikkinen v. United States, 355 U.S. 273, 78 S.Ct. 299, 2 L.Ed.2d 264 (1958), an alien had been convicted under § 20(c) of the Immigration Act of 1917 of willfully failing to depart the United States within six months after he was ordered deported.
We do not hold that an organization may claim the privilege against self-incrimination, nor that an individual may claim the privilege on behalf of an organization or its members. We express no opinion concerning the Communist Party's duty to submit the data demanded. We hold only that the availability of someone to sign the forms was an element of the offense; that the officers, who should otherwise have signed, were unavailable by reason of their valid claim of the privilege against self-incrimination; that the government had the burden of showing that a volunteer was available; and that its failure to discharge this burden requires reversal of the conviction. Because the issues are novel, it seems "just under the circumstances," 28 U.S.C. § 2106, to afford the government an opportunity to present the proof required by our holding. The case is remanded to the District Court "with instructions to grant a new trial if the Government shall request it; or, absent such request, to enter a judgment of acquittal." Wright v. United States, 102 U.S.App.D.C. 36, 250 F.2d 4 (1957). See also Douglas v. United States, 99 U.S.App.D.C. 232, 239 F.2d 52 (1956); Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950).