# Killian v. United States/Dissent Brennan

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United States Supreme Court
368 U.S. 231
Killian v. United States
Argued: Oct. 10, 1961. --- Decided: Dec 11, 1961
Mr. Justice BRENNAN, dissenting.
I dissent because I think the instructions to the jury on the crucial definitions of membership and affiliation were fatally defective in light of our decision 12 years ago in American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 677, 94 L.Ed. 925. The trial judge refused to give the following instruction requested by the petitioner:
'The communist party, like other voluntary organizations, sets forth conditions which a person must accept in order to become and remain a member. The burden is on the prosecution to prove beyond a reasonable doubt what the conditions for such membership were on the date in question, whether found in its constitution or elsewhere, and that the defendant accepted these conditions.'
In my view such an instruction was required under our decision in Douds and it was error to refuse it.
Douds sustained § 9(h) against constitutional challenge. Its constitutionality was sustained not, as here, within the limited framework of a perjury prosecution but rather in the large-against the broadside challenges arising from denials of recourse to the processes of the National Labor Relations Board to unions whose officers refused to execute the required affidavits. In that context an interpretation of 'member' clearly emerges from the Douds decision. Yet in this case, which squarely presents an issue as to the correctness of an instruction on the meaning of 'member' as used in § 9(h), the majority makes not a single reference to that interpretation, which is at war with the majority's holding here.
Only six members of the Court participated in Douds. Chief Justice Vinson wrote an opinion for himself and Justices Reed and Burton. Mr. Justice Frankfurter wrote a separate opinion but, as regards the issue immediately to be discussed, Chief Justice Vinson also spoke for him.
The opinion of Chief Justice Vinson is partially a bifurcated one, distinguishing the clause forswearing membership in or affiliation with the Communist Party, which this case implicates, from the 'belief' clause under which the Government does not here charge the petitioner with false swearing.
As to the 'membership' portion of the oath, the opinion of the Chief Justice held for the majority of the participating Justices that Congress could validly impute to the Communist Party an institutional predilection for political strikes, and could reasonably act on the assumption that members of the Party or its affiliates would partake of that predisposition. As the Chief Justice's opinion saw it, the crucial issue as to this part of the oath was whether, granting the permissibility of the assumptions, s 9(h) incorporated an allowable mode of regulation in view of its undoubted inhibiting effect upon participation in legitimate Party activities within the ambit of the First Amendment. The opinion held for constitutionality, concluding that the public interest in preventing political strikes justified the tangential interference with legitimate activity. No definitional problem respecting 'member' or 'affiliate' was considered in this context.
Coming to the 'belief' clause, however, the Chief Justice found it necessary to construe that portion of the oath as referring to belief in violent overthrow 'as an objective, not merely a prophecy.' His view was that the clause, assisted by this gloss, presented no different problem from that already discussed in connection with membership, with one exception which is crucial for our purposes. The special problem which the Chief Justice perceived was one of proof:
'Insofar as a distinction between beliefs and political affiliations is based upon absence of any 'overt act' in the former case, it is relevant, if at all, in connection with problems of proof. In proving that one swore falsely that he is not a Communist, the act of joining the Party is crucial. Proof that one lied in swearing that he does not believe in overthrow of the Government by force, on the other hand, must consist in proof of his mental state. To that extent they differ.
'To state the difference, however, is but to recognize that while objective facts may be proved directly, the state of a man's mind must be inferred from the things he says or does. Of course we agree that the courts cannot 'ascertain the thought that has had no outward manifestation.' But courts and juries every day pass upon knowledge, belief and intent the state of men's minds-having before them no more than evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred. * * * 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.'
It was, of course, obvious to the Court in Douds that the belief portion of the oath referred to a subjective phenomenon-the affiant's internal attachment to the goal of violent overthrow which would have to be provable wholly through his statements and writings-'the outward manifestations of state of mind.' But it is equally obvious that the Douds Court had no notion that membership could be taken as signifying a subjective relationship of mutuality, provable by actions not particularly bespeaking an externally manifested tie. For it is clear beyond cavil that, to the Court in Douds, a conviction under the membership clause required evidence from which could be inferred the existence, beyond a reasonable doubt, of an 'objective fact'-'the act of joining the Party.' That this is so only becomes more apparent from examination of the separate opinions of Justices Frankfurter and Jackson. It is evident that the five Justices who sustained the membership clause considered membership to involve an externally manifested act or acts of association and admission, understood as such by the Party and by the member. This is the 'Douds sense' of membership to which I subsequently refer.
Accordingly, since the Court today authorizes an instruction which permits a jury to convict of false swearing as to membership, conceived as a purely subjective phenomenon, without the jury's having had to conclude that membership in the Douds sense existed, it goes beyond Douds and repudiates a critical assumption of that decision.
The district judge's instruction concerning membership is most effectively dealt with by considering, first, his definition of 'membership,' and, second, his enumeration of facts by which membership so defined could be proven.
The entire definition of membership was this:
'Membership in the Communist Party, the same as membership in any other organization, constitutes the state of being one of those persons who belong to or comprise the Communist Party. It connotes a status of mutuality between the individual and the organization. That is to say, there must be present the desire on the part of the individual to belong to the Communist Party and a recognition by that Party that it considers him as a member.'
All must agree that it is in the third sentence alone that the definition resides; for the first sentence is mere tautology, while the second is far too vague to be of any help whatever. The most striking thing about the third sentence is that, although it is ambiguous, standing alone it might possibly be thought consistent with Douds. 'Recognition' by the Party that it 'considers' one to be a member might suggest the objective manifestation of acceptance-the externalized establishment of the tie-which Douds conceived to be necessary to the relationship. The additional element of 'desire on the part of the individual to belong' would simply except from 'membership' a formal association entered into unwittingly or on account of duress. But, if the definition of membership in question does omit the Douds element of objective, outward alliance-as I believe it does, in light of the instructions which followed-then its application in this case raises a grave question of fair warning.
Douds was decided on May 8, 1950. Two and one-half years later, on December 11, 1952, Killian swore that he was not a member of the Communist Party. Why he should have supposed that he was disavowing anything except objectively manifested Douds-sense membership-the most natural meaning to impute to the oath, and the one explicitly assumed by the Court in upholding the constitutionality of its exaction-I cannot imagine. To convict him of perjury now, on the assumption that membership may exist without externalized application to and acceptance into the organization, is to trap petitioner in the backlash of an unpredicatable shift in construction.
For the reasons above stated, I conclude that the district judge's definition of 'membership' could have been correct only if it meant, and reasonably must have been taken to mean, that some objective act of joining and acceptance is a requisite element. The judge did not rest with his definition of membership, but went on to instruct the jury what evidence it could consider in determining the membership issue. I do not reach the question whether the evidence in this case was sufficient to convict under a proper instruction. It is not necessary to hold that direct proof of the act of joining is required, in order to conclude that, because so many of the matters enumerated by the judge are devoid of any rational tendency to show membership in the Douds sense, the conviction must be reversed. The effect of this part of the instruction was either to authorize the jury to consider evidence not relevant to membership as properly defined, or to lead it into thinking that it might convict although it never found membership in the Douds sense.
Among the indicia of membership which the jury was authorized to consider were the following:
(a) Whether the petitioner 'paid dues or made any financial contributions to the Communist Party or collected any funds on its behalf.'
(b) Whether the petitioner 'attended Communist Party meetings, classes, conferences, or any other type of Communist Party gathering.'
(c) Whether petitioner 'has been accepted to his knowledge as an officer or member of the Communist Party, or as one to be called upon for services by other officers or members of the Communist Party.'
(d) Whether petitioner 'has conferred with officers or other members behalf of any plan or enterprise of inhalf of any plan or enterprise of the Communist Party.'
(e) Whether petitioner 'has advised, counseled, or in any other way imparted information, suggestions, or recommendations, to officers or members of the Communist Party, or to anyone else, in behalf of the Communist Party.'
(f) Whether petitioner 'has spoken or in any other way communicated orders, directives or plans of the Communist Party.' (Emphasis added.)
Surely the enumerated italicized indicia are too free-wheeling and open-ended to be permissible descriptions of factual phenomena from which the existence of membership in anything resembling the Douds sense might be inferred. And the error was compounded; for the jury were instructed that they might consider whether the petitioner 'has indicated by word, action, conduct, writing, or in any other way, a willingness to carry out in any manner and to any degree the plans, objectives or designs of the Communist Party'; or whether he 'has in any other way participated in the activities, planning or actions of the Communist Party.' Surely it cannot be said that such indicia are probative of membership in any sense of that term which could justify a legislative assumption that membership, so defined, imported a dangerous possibility of resort to political strikes the very premise of constitutionality in Douds.
To sum up: Either the enumerated factual matters recommended to the jury's consideration by the instruction were in significant measure irrelevant, or they betokened a definition of membership which so radically departs from our own previous understanding that (a) the constitutionality of § 9(h) should be reconsidered in its light and (b) it is grossly unfair to convict Killian of perjury on the basis of this new definition which he cannot be held to have foreseen, swearing, as he did, but two and one-half years after the Douds decision was announced. The District Court should have drafted an instruction which would have required the jury-in order to return a conviction-to have concluded that Killian was a member in the Douds sense. This it clearly failed to do. I therefore think that the conviction on Count I must be reversed.
I think that the same fatal defects inhere in the instruction on 'affiliation.' My Brother Frankfurter in Douds expressed the view that to avoid questions of unconstitutionality, affiliation should be construed in § 9(h) as limited to proof of actual membership 'in an organization that is in fact a controlled cover for (the Communist) * * * Party,' and all who joined the Chief Justice's opinion manifested their understanding that this was what affiliation meant. No instruction in this form was given. However, unlike the case as to 'membership,' no instruction embodying the Douds definition of 'affiliation' was requested nor did petitioner's counsel in objecting to the instruction rely on the Douds interpretation. I, therefore, can see no basis for a reversal of the conviction under Count II. Fed.Rules Crim.Proc. 30, 18 U.S.C.A.
Since my views have not prevailed as regards the instructions and the instructions actually given have been sustained, I must say a word as to the Court's disposition of the Jencks issue. I agree with the disposition which remands the cause to the District Court for a hearing confined to the issues raised by the Solicitor General's representations. See Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428. I also agree that if the trial court finds that the information contained on the two Ondrejka receipts had already been given to petitioner in other statements of Ondrejka earlier turned over to petitioner, the District Court could find that the error in failing to produce those two receipts was harmless. Rosenberg v. United States, 360 U.S. 367, 377, 79 S.Ct. 1231, 1237, 3 L.Ed.2d 1304, footnote (dissenting opinion). But if the information on the receipts has not been given to petitioner in other statements of Ondrejka, I think the district judge must order a new trial for the reasons stated in my dissent in Rosenberg v. United States, 360 U.S. 367, 373, 79 S.Ct. 1231, 1235.

## Notes

* ↑ This is the third paragraph of Defendant's Proposed Instruction No. 16-17, found at pp. 606-608 of the trial transcript on file with the Clerk.
* ↑ I.e., 'that he is not a member of the Communist Party or affiliated with such party.'
* ↑ I.e., 'that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods.'
* ↑ 339 U.S. at 407, 70 S.Ct. at 688.
* ↑ Id., at 410-411, 70 S.Ct. at 690. (Emphasis added.)
* ↑ My Brother Frankfurter joined in the opinion of the Chief Justice as it related to the membership portion of the oath. He agreed that the membership clause was constitutional, and that the belief clause would have been constitutional had it been susceptible of the gloss endowed by the Chief Justice. His understanding of the meanings to be attributed to 'member' and 'affiliate' clearly emerges from the following, read in light of his holding that the membership clause is constitutional:
* ↑ To Mr. Justice Jackson, writing separately, the belief portion of the oath appeared unconstitutional. He agreed that the membership clause could withstand attack, but only because of certain peculiar characteristics he discerned in the Communist Party and in the condition of membership in it. Underlying his holding was the proposition that the Communist Party was a foreign-controlled organization dedicated to the seizure of power by force; but the final, and crucial, link in the chain of reasoning was his characterization of membership in the party:
* ↑ Since Douds can be authority for the constitutionality of the membership clause of § 9(h) only with respect to the Court's clear understanding there of the meaning of 'member,' today's approval of a substantially altered definition appears to make necessary a new piece of constitutional adjudication. To put it another way, there is implicit in the majority's opinion-though unspoken-a holding that § 9(h) is constitutional with the definition of membership which omits the Douds requirement. Because I think that the trial judge's erroneous instruction itself required reversal, I express no view on this constitutional question. Nor is this a matter without real significance. The Douds Court found 'delicate and difficult,' 339 U.S. at 400, 70 S.Ct. at 684, the problem whether membership in the narrow sense there used sufficiently justified an inference of the likelihood of political strikes to warrant the resulting inhibition of protected activity. To substitute for the narrow definition of membership a concept the existence of which is provable by the acts enumerated by the district judge, see infra, 368 U.S., pp. 274-275, 82 S.Ct., pp. 325-326, quite clearly creates the need for a fresh exercise of judgment.
* ↑ For this reason, I do not understand that the brief suggestion of three members of the Court in Jencks, 353 U.S. at 679, 77 S.Ct. at 1019, that membership be defined in language similar to that of the third sentence, lends any support to today's new holding that membership may be conceived for our purposes as a strictly subjective phenomenon.
* ↑ Compare Rowoldt v. Perfetto, 355 U.S. 115, 78 S.Ct. 180, 2 L.Ed.2d 140.
* ↑ The effect of the enumerated indicia surely was not sufficiently dispelled by the halting admonition that 'individual and unrelated isolated acts of the defendant showing cooperation with the Communist Party or isolated statements of the defendant showing sympathy with the Communist Party are not in themselves conclusive evidence of membership * * *.' Transcript, 705. (Emphasis added.)
* ↑ 339 U.S. at 421, 70 S.Ct. at 695.
* ↑ Id., at 406, 70 S.Ct. at 688.
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