MR. JUSTICE FORTAS delivered the opinion of the Court.
The six petitioners and eight others were indicted in the United States District Court for the District of Colorado on a charge of violating the general conspiracy statute, 18 U. S. C. § 371 (1964 ed.).
Section 9 (h), which was later repealed.
Four of the six petitioners—Dennis, Dichter, Travis and Wilson—were officers of the union. Each is alleged to have filed false non-Communist affidavits. Petitioners Sanderson and Skinner were, at relevant times, union members but not officers. They are charged with participation in the conspiracy. All were alleged to be "members of and affiliated with the Communist Party."
The indictment was returned in 1956. At the first trial, petitioners and others were convicted. On appeal, the Court of Appeals for the Tenth Circuit sustained the validity of the indictment, but reversed the judgments on the ground that prejudicial hearsay evidence had been admitted in evidence. 302 F.2d 5.
On retrial, the petitioners were again convicted and each was sentenced to three years' imprisonment and fined $2,000. This time, the Court of Appeals affirmed. 346 F.2d 10. We granted certiorari (382 U.S. 915) limited to three questions:
We first discuss the question, considered both in the District Court and in the Court of Appeals,
Four of the petitioners—those who filed the affidavits alleged to be false—presumably could have been indicted for the substantive offense of making false statements as to a "matter within the jurisdiction of" the Board, a violation of 18 U. S. C. § 1001 (1964 ed.). But the essence of their alleged conduct was not merely the individual filing of false affidavits. It was also the alleged concert of action—the common decision and common activity for a common purpose. The conspiracy was not peripheral or incidental. It lay at the core of the alleged offense. It is the entire conspiracy, and not merely the filing of false affidavits, which is the gravamen of the charge. This conspiratorial program included, as prime factors, not only those who themselves filed the false statements, but others who were equally interested in the conspiratorial purpose and who were directly and culpably involved in the alleged scheme. The Government sought to fasten culpability upon all of the conspirators. The indictment properly charges a conspiracy, and with the required specificity alleges the culpable role of each of the petitioners.
Nor can it be concluded that a conspiracy of the described nature and objective is outside the condemnation of the specific clause of § 371 relied upon in the
Petitioners argue, however, that their conduct cannot be considered as fraudulent for purposes of § 371 because the Labor Board is required to certify the compliance of any union whose officers have filed non-Communist affidavits —without regard to the veracity thereof. Leedom v. International Union, 352 U.S. 145, and Meat Cutters v. Labor Board, 352 U.S. 153. The claim is that since the Board's action in making its services available to the
The facts are, according to the indictment, that petitioners and their co-conspirators could not have obtained the Board's services and facilities without filing non-Communist affidavits; that the affidavits were submitted as part of a scheme to induce the Board to act; that the Board acted in reliance upon the fact that affidavits were filed; and that these affidavits were false. Within the meaning of § 371, this was a conspiracy to defraud the United States or an agency thereof.
Still another argument is advanced to defeat the indictment. Petitioners submit that this case does not involve a conspiracy to defraud, but rather, under the alternative clause of § 371, a conspiracy to commit the substantive offense of filing false statements in violation of 18 U. S. C. § 1001. It is their contention that Bridges v. United States, 346 U.S. 209, compels the conclusion
In the present case, on the other hand, the allegation as to conspiracy to defraud, as we have discussed, properly reflects the essence of the alleged offense. It does not involve an attempt by prosecutorial sleight of hand to overcome a time bar.
We conclude, therefore, that the indictment properly charged a violation of the conspiracy-to-defraud clause of § 371.
Petitioners next urge that we set aside their convictions on the ground that § 9 (h) of the Taft-Hartley Act is unconstitutional. In particular, they rely upon United States v. Brown, 381 U.S. 437, in which the Court held unconstitutional as a bill of attainder the statute enacted by Congress in 1959 to replace § 9 (h). The new statute made it a crime for a member of the Communist Party to hold office or any other substantial employment in a labor union.
We need not reach this question, for petitioners are in no position to attack the constitutionality of § 9 (h). They were indicted for an alleged conspiracy, cynical and fraudulent, to circumvent the statute. Whatever might be the result where the constitutionality of a statute is challenged by those who of necessity violate its provisions and seek relief in the courts is not relevant here. This is not such a case. The indictment here alleges an effort to circumvent the law and not to challenge it—a purported compliance with the statute designed to avoid the courts, not to invoke their jurisdiction.
In Kay v. United States, 303 U.S. 1, this Court upheld a conviction for making false statements in connection with the Home Owners' Loan Act of 1933, without passing upon the claim that the Act was invalid. The Court said, "When one undertakes to cheat the Government or to mislead its officers, or those acting under its authority, by false statements, he has no standing to assert that the operations of the Government in which the effort to cheat or mislead is made are without constitutional sanction." 303 U. S., at 6. See also United States v. Kapp, 302 U.S. 214, involving a false claim for money under the subsequently invalidated Agricultural Adjustment Act of 1933. Analogous are those cases in which prosecutions for perjury have been permitted despite the fact that the trial at which the false testimony was elicited was upon an indictment stating no federal offense (United States v. Williams, 341 U.S. 58, 65-69); that the testimony was before a grand jury alleged to have been tainted by governmental misconduct (United States v. Remington, 208 F.2d 567, 569 (C. A. 2d Cir. 1953), cert. denied, 347 U.S. 913); or that the defendant testified without having been advised of his constitutional rights (United States v. Winter, 348 F.2d 204, 208-210 (C. A. 2d Cir. 1965), cert. denied, 382 U.S. 955, and cases cited therein).
It is argued in dissent, see pp. 876-880, post, that we cannot avoid passing upon petitioners' constitutional claim because it bears upon whether they may be charged with defrauding the Government of a "lawful function." At the time of some of the allegedly fraudulent acts of the conspirators, this Court's decision in Douds had been handed down. It was flouted, not overlooked. This position loses sight of the distinction between appropriate and inappropriate ways to challenge acts of government thought to be unconstitutional. Moreover, this view assumes that for purposes of § 371, a governmental function may be said to be "unlawful" even though it is required by statute and carries the fresh imprimatur of this Court. Such a function is not immune to judicial challenge. But, in circumstances like those before us, it may not be circumvented by a course of fraud and falsehood, with the constitutional attack being held for use only if the conspirators are discovered.
Because the claimed invalidity of § 9 (h) would be no defense to the crime of conspiracy charged in this indictment, we find it unnecessary to reconsider Douds.
We turn now to petitioners' contention that the trial court committed reversible error by denying their motion to require production for petitioners' examination of the grand jury testimony of four government witnesses.
The trial judge denied the motions, made at the conclusion of the direct examination of each of the witnesses, on the ground that no "particularized need" had been shown. See Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400. On appeal, the Court of Appeals held that the denial of the motions was not reversible error. The court recognized "the inherent power and the inescapable duty of the trial court to lift the lid of secrecy on grand jury proceedings in aid of the search for truth," and that its obligation was "not [to] hesitate to inspect and to disclose any inconsistencies if it is likely to aid the fair administration of criminal justice through proper cross-examination and impeachment." 346 F. 2d, at 17. It went so far as to express the view that "it would have been safer to have inspected the grand jury testimony." Id., at 18. But because "the witnesses were
In his brief in this Court, the Solicitor General concedes that "there is substantial force to petitioners' claims that the interest in secrecy was minimal in light of the oft-repeated testimony of the witnesses and that the arguments they now advance, if made at trial, might have suggested in camera inspection as an appropriate course." Brief for the United States, p. 51. But the Government argues that it was not error for the trial judge to have denied petitioners' motions. With this latter proposition we disagree, and we reverse.
This Court has recognized the "long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts." United States v. Procter & Gamble Co., 356 U.S. 677, 681. And it has ruled that, when disclosure is permitted, it is to be done "discretely and limitedly." Id., at 683. Accordingly, the Court has refused in a civil case to permit pretrial disclosure of an entire grand jury transcript where the sole basis for discovery was that the transcript had been available to the Government in preparation of its case. Procter & Gamble, supra. And, in Pittsburgh Plate Glass Co. v. United States, supra, the Court sustained a trial court's refusal to order disclosure of a witness' grand jury testimony where the defense made no showing of need, but insisted upon production of the minutes as a matter of right, and where there was "overwhelming" proof of the offense charged without reference to the witness' trial testimony.
In general, however, the Court has confirmed the trial court's power under Rule 6 (e) of the Federal Rules of
These developments are entirely consonant with the growing realization that disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice. This realization is reflected in the enactment of the so-called Jencks Act,
Certainly in the context of the present case, where the Government concedes that the importance of preserving
1. The events as to which the testimony in question related occurred between 1948 and 1955. The grand jury testimony was taken in 1956, while these events were relatively fresh. The trial testimony which petitioners seek to compare with the 1956 grand jury testimony was not taken until 1963. Certainly, there was reason to assay the latter testimony, some of which is 15 years after the event, against the much fresher testimony before the grand jury.
2. The motions in question involved the testimony of four of the eight government witnesses. They were key witnesses. The charge could not be proved on the basis of evidence exclusive of that here involved.
3. The testimony of the four witnesses concerned conversations and oral statements made in meetings. It was largely uncorroborated. Where the question of guilt or innocence may turn on exactly what was said, the defense is clearly entitled to all relevant aid which is
4. Two of the witnesses were accomplices, one of these being also a paid informer. A third had separated from the union and had reasons for hostility toward petitioners.
5. One witness admitted on cross-examination that he had in earlier statements been mistaken about significant dates.
A conspiracy case carries with it the inevitable risk of wrongful attribution of responsibility to one or more of the multiple defendants. See, e. g., United States v. Bufalino, 285 F.2d 408, 417-418 (C. A. 2d Cir. 1960). Under these circumstances, it is especially important that the defense, the judge and the jury should have the assurance that the doors that may lead to truth have been unlocked. In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant fact.
In Pittsburgh Plate Glass, supra, the Court reserved decision on the question whether in camera inspection by the trial judge is an appropriate or satisfactory measure when there is a showing of a "particularized need" for disclosure. 360 U. S., at 401. This procedure, followed by production to defense counsel in the event the trial judge finds inconsistencies, has been adopted in some of the Courts of Appeals. In the Second Circuit it is available as a matter of right.
Because petitioners were entitled to examine the grand jury minutes relating to trial testimony of the four government witnesses, and to do so while those witnesses were available for cross-examination, we reverse the judgment below and remand for a new trial.
It is so ordered.
MR. JUSTICE DOUGLAS, while joining the opinion of MR. JUSTICE BLACK, also joins Part III of the majority opinion.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring in part and dissenting in part.
This prosecution, now approaching its second decade and third trial, is a natural offspring of the McCarthy era. For reasons set out in Part III of the Court's opinion I agree that it was reversible error for the trial court to deny petitioners' motion to examine the Grand
The indictment charges, as it was compelled to charge in order to show that the offense of conspiring to defraud the Government had been committed, that the petitioners' alleged fraud interfered with "lawful" and "proper" functions of government. Had the indictment failed to charge that the functions obstructed were "lawful" and "proper," it would have been fatally defective under our prior cases accepted by the Court today which state that an essential element of the crime of defrauding the Government is the obstruction of a "lawful" and "legitimate" governmental function. United States v. Johnson, 383 U.S. 169, 172; Glasser v. United States, 315 U.S. 60, 66; Hammerschmidt v. United States, 265 U.S. 182, 188; Haas v. Henkel, 216 U.S. 462, 479. Accordingly, in holding that petitioners have no right to challenge § 9 (h), the Court must conclude that even if § 9 (h) is a bill of attainder, petitioners have nevertheless conspired to interfere with some lawful and legitimate function of government. Yet the Court nowhere points out any governmental function that could have been interfered with by the false affidavits except functions performed under § 9 (h) which the Court for purposes of this argument assumes is a bill of attainder.
Our Government has not heretofore been thought of as one which sends its citizens to prison without giving them a chance to challenge validity of the laws which are the very foundation upon which criminal charges against them rest. Yet the Court refuses to allow petitioners to attack § 9 (h) on the ground that "the claimed invalidity of § 9 (h) would be no defense to the crime of conspiracy charged in this indictment . . . ." It is indeed a novel doctrine if the unconstitutionality of a law which forms the very nucleus of a criminal charge cannot be a defense to that charge. Certainly the Court does not deny that violation of the § 9 (h) requirement for non-Communist oaths is an essential if not indeed the only ingredient of the crime for which the Government seeks to place petitioners in jail. The indictment properly charged unlawful compliance with § 9 (h) as an essential element, if indeed not the whole crime laid at petitioners' door. Congress has passed no law which requires the Court to refuse to consider petitioners' challenge to the constitutionality of § 9 (h). Nor are there any prior cases of
The cases relied on by the majority cannot, in my judgment, properly be stretched to support the Court's holding that petitioners have no right to challenge § 9 (h) as a bill of attainder. In United States v. Kapp, 302 U.S. 214, relied on by the Court, the defendants conspired through use of false statements to secure benefit payments under the Agricultural Adjustment Act to which they were not entitled under the Act itself. For this they were indicted. At trial they contended that they could not be prosecuted because the Agricultural Adjustment Act had been declared unconstitutional. This Court properly rejected that defense. In that case Kapp was convicted of conspiring to get money out of the Treasury to which he had no possible right whether the statute was constitutional or unconstitutional. The alleged conspiracy was to defraud the Government of money by people who, under no circumstances, had or could have had any legitimate claim to the money. So also in Kay v. United States, 303 U.S. 1, as in Kapp, the defendants made false statements in order to get benefits from the Government which were not due them whether the Home Owners' Loan Act was constitutional or unconstitutional. In none of the other cases relied on by the Court today do we have the situation present in this case. Here, if § 9 (h) is unconstitutional petitioners' union has always been entitled to services of the Labor Board before any affidavits were filed, when they were filed, or after they were filed. By filing false affidavits petitioners got for their union no more than it was entitled to if the statute is unconstitutional. In
Let us consider for a moment other similar cases in which efforts might be made to deprive citizens of their right to challenge unconstitutional laws bearing down upon them. For example, what if a State wanted to impose racial or religious qualifications for voting in violation of the Fourteenth and Fifteenth Amendments and that State refused to register people to vote until they had filed affidavits swearing that they were not of a proscribed color or religion? If a person filed a false affidavit under such a law could it be possible that this Court would hold the person had defrauded the State out of something it was entitled to have? Take another example. Article VI of the United States Constitution provides that ". . . no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Suppose Congress should pass a law requiring candidates for public office to make affidavits that they do not belong to a particular church and a candidate falsely denies his membership in that church. Is it conceivable that this Court would permit him to be barred from his office and sent to prison on the ground that the Government had been defrauded in its "lawful" and "legitimate" functions? And who would imagine that people under indictment for defrauding the Government by making false affidavits required by these unconstitutional acts would be denied in a court of justice the right to challenge such unconstitutional laws? The Court's refusal to allow these petitioners to challenge the constitutionality of § 9 (h), on which the charge against them ultimately rests, is hardly consistent with Madison's view that "independent tribunals of justice . . . will be an impenetrable bulwark against
In 1959 Congress repealed § 9 (h) of the National Labor Relations Act and enacted § 504 of the Labor-Management Reporting and Disclosure Act. 73 Stat. 536, 29 U. S. C. § 504 (1964 ed.). Section 504 made it a crime for a member of the Communist Party to serve as an officer of a labor union. Last year this Court in United States v. Brown, 381 U.S. 437, held § 504 to be an unconstitutional bill of attainder. In doing so, the Court said, "Section 504 was designed to accomplish the same purpose as § 9 (h), but in a more direct and effective way." 381 U. S., at 439, n. 2. In this case the Government argues with understandable brevity, feebleness and unpersuasiveness that there is a crucial distinction between § 504, which it has to admit is a bill of attainder, and § 9 (h) which it contends is not. This alleged crucial distinction amounts to no more than an assertion that the punishment under § 504 is more severe than that under § 9 (h). This distinction is hard to grasp and harder to accept. Section 504 made it a crime for a Communist to hold office in a labor union. Section 9 (h) made it just as impossible for a Communist to hold union office, though it reached this result in a different way. Section 9 (h) provided that a union could not receive the services of the Labor Board if the union had any Communist officers and required all union officers to file affidavits stating they were not Communists as a condition of their unions' receiving the Board's services. The practical effect of § 9 (h) was that a union officer who was a Communist was forced either to file a false affidavit, for which he could have been prosecuted, or to
Petitioners now face their third trial and possible prison sentences just as though the Court had today upheld § 9 (h). I must say with considerable regret that future historians reporting this case may justifiably draw an inference that it is the petitioners, whatever may be their offense, and not the Government who have been defrauded. For petitioners, if convicted and sentenced again, unlike the Government, actually will have been deprived of something—their freedom. They will be in jail, having been denied by their Government the right to challenge the constitutionality of § 9 (h) which, when it is challenged, must in my judgment be held to be the constitutionally doubly prohibited freedom-destroying, legislative bill of attainder.
"(1) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization . . . during or for five years after the termination of his membership in the Communist Party . . . .
"(b) Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned for not more than one year, or both."
Among the commentators who have argued in favor of broadening criminal discovery are Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth? 1963 Wash. U. L. Q. 279; Traynor, Ground Lost and Found in Criminal Discovery, 39 N. Y. U. L. Rev. 228 (1964); Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L. J. 1149 (1960); Note, Developments in the Law—Discovery, 74 Harv. L. Rev. 940, 1051-1063 (1961). Of particular relevance to the question of grand jury secrecy are: Sherry, Grand Jury Minutes: The Unreasonable Rule of Secrecy, 48 Va. L. Rev. 668 (1962); and Calkins, Grand Jury Secrecy, 63 Mich. L. Rev. 455 (1965).