Earl Warren: You may continue your argument.
Telford Taylor: Mr. Chief Justice, when the Court rose for lunch, I was in the course of discussing this request for access to the grand jury testimony of the prosecution witnesses. And before concluding on that, I would like to give one illustration of which seems to me to bring out the practical importance of this in the standpoint of the -- of the trial. I mentioned this six conversations which are about the only contemporaneous evidence that indicates -- it could be taken indicate continued membership on the petitioner's part, and one of those conversations is described in the record, Volume 1 of the big record at page 443, where the witness Gardner who is one of the three prosecution witnesses and who had been a fellow employee of the Mine, Mill and Smelters Workers of -- this witness Gardner was in Cleveland. Travis came to Cleveland and he and Travis, the petitioner, made a trip to Canada together. And the conversation in the course of this trip is what is discussed in those two paragraphs, beginning the bottom of 443 and running over the top 444. And in that first paragraph there, it's reported that Travis has indicated that he was having trouble going back and forth across the border, because of his connection with the Communist Party and his public resignation and so forth. Then page 444 there, Gardner says that he asked Travis if the -- other unions are having the same difficulties and here is where the crucial part. He said, no, the Canadian authorities in the Maine were putting the clamps down on the left wing union such as Mine, Mill and UE. And we very briefly discussed his resignation from the party in which he pointed out that he believed that resignation, that public resignation, was a mistake because it gave the enemies of the party an opportunity to use that. And pointing out that it wasn't a true resignation from the party, but actually it was done to conform to the Taft-Harley affidavits. And they recognized, the enemies of the party recognized that this was not an actual resignation and in substance that is above what we discussed. Well, the Court will see that the wording of that is not 100% self-explanatory. He doesn't precisely admit that he was a member. He says the enemies to the party regarded it as not a true resignation. The Government, when it is describing this episode in their brief, I'm looking at page 52 of the Government's brief, summarize this episode by saying, "He”, that is Travis, “confided to Gardner that his formal resignation from the party in 1949 was not an actual resignation." Well, it may please (Inaudible) from the kind to begin with, the word, "formal" isn't used in there at all, he said his public resignation and when you change that into formal that is putting a very different twist in meaning on the -- on the thing. He said not a word about formal resignation and he did not confide that his -- that it wasn't an actual resignation. What he said was that the enemies of the party so regarded.
Speaker: (Inaudible)
Telford Taylor: The Government in their brief in describing in this episode, whereas in fact what -- when he said it was public, which is really quite different in this -- in this context. And this -- I say this chiefly to illustrate how important the words used in describing such a conversation maybe here. And why this is therefore, a particularly important instance where access to the grand jury minutes would have been valuable. Now interestingly enough, this same witness Gardner has testified about this conversation in a later proceeding before the SACB, which we quoted in our brief of page 35, and there he puts it quite differently. He says there that he was quite convinced, that is Travis, that neither the American nor the Canadian authorities believed his resignation was genuine. And as a result, he had this difficulty in getting over the boarder. Well, of course to say that the American and Canadian authorities didn't regard his resignation as genuine is really not much news. The fact that this prosecution was brought in the case that the Government didn't think his resignation was genuine and as you can see so forth that is very much less like an admission than the way he put it in this trial and very much less like it in the way the Government described it in their brief. So as I say, I brought out the details about this conversation, because it seems to me that if there ever were circumstances where access to the minutes of the grand jury would have been useful to compare what he said about this episode there to what he said before the jury. This is such an illustration. Now, I think there can be no defense of the way the trial court handled this whole matter of the request for access to these minutes. To begin with, although this Court had made it clear in Pittsburgh Plate Glass that you do not have to have a preliminary showing of inconsistency. The trial judge said that in his opinion, even a possible inconsistency was not enough that it had to be an inconsistency going to the basis of the case. Then, when the petitioner's counsel tried to particularize further the possible need for this testimony and endeavored to question the witnesses about what they had talked about before the grand jury and whether they had described these conversations, the trial judge cut him off and would not allow that line of testimony -- of questioning to be pursued, so that there he was very much hampered in efforts to show by examining the witnesses that there might be need for access to the testimony. And then finally, both the trial court and the prosecution simply took a blanket position of opposition to any and every request for any grand jury testimony, no matter how limited. As I read the Government's brief, it doesn't seem to me that they have made any very serious effort to defend these rulings in this trial. The main burden of their brief on this point is that if it should be ruled that there was an abusive discussion here and a reversal on that ground, they ask that this Court not lay down any absolute rule, any rule of absolute right to access to minutes. Well, what they call, they don't want to rule an automatic disclosure. We have not asked here for any such rule of automatic disclosure. In our brief, we have tried to analyze the factors that should come into play in handling a request for grand jury testimony, what should be considered and what shouldn't. And what the differences are between the grand jury problem and the 3500 problem, they aren't on all force in a review. But far short of any rule of automatic disclosure, it does seem to us that in circumstances such as this case presents, where the crucial evidence is discussions to which nobody but the witness and the defendant were purvey, where the wording of these -- of these descriptions of the conversations is in importance, that there is no sound reason why the minutes should not be examined. And as I said earlier, in the Second Circuit, there is a whole line of decisions that would clearly cover a situation like this. And it seems to us that the practice of the Second Circuit is sound.
John M. Harlan II: Now the Second Circuit decision would not go beyond the situation that this goes to the --
Telford Taylor: Beyond it? Perhaps, the best answer Mr. Justice Harlan will be to read one paragraph from this last decision, which is in the Hernandez case decided in August. That was a narcotics case and the witness for the Government was an agent of the Bureau of Narcotics. And described a conversation with the defendant in which the defendant had referred to another person as one of his suppliers. Alright, it's very much like this case, because it's just such a conversation. The Court says and this is a per curiam opinion, Judges Clark, Waterman and Moore. The Government's case rested largely upon new Newkirk's (ph) testimony, so that any doubts cast upon his credibility by a variance between such testimony and that given before the grand jury, undoubtedly, would have influenced the juries liberations. It was thus incumbent upon the trial court to inspect the minutes as requested by the defendant in order to ascertain whether any material inconsistencies existed.
John M. Harlan II: All of that would have automatically (Inaudible) automatically comply an exam to this new witness irrespective of (Inaudible) declare.
Telford Taylor: I don't think so. They have never said so. That the practice as a matter of fact now, has become pretty standard there, and as I indicated before the U.S. Attorney's office there now often turns over the minutes voluntarily. It seems to us that a lot of trouble in this field is caused by a sort of automatic attitude. If the -- if the Government automatically resists every request for testimony, you get these questions precipitated, when there is no -- really no good reason why the testimony shouldn't have been looked at. May I then turn to the matter -- to some of the other matters that our petitioner seeks to review. And the next few, I'm going to speak very briefly about the matter of the perjury rule. That the rule requiring either two witnesses or one witness plus corroboration on the falseness of the oath. The Government says that rule is not applicable here because this is not technically a perjury case. Now, as I indicated before, this question was up in the Gold case. It was briefed then and although I didn't hear argument, I assume it was a full argument. And I'll be frank to say that having read the briefs in that case, I do not think that we have been able to add very much to what was said on behalf of the petitioner there and I don't think the Government has been able to add much to what the Government said before. And for that reason, I would refer not to take the Court's time to go over all these considerations that must be pretty familiar by now. This point was dissented. This was a point of Judge Murrah's dissent here. In the Gold case, Judge Bazelon expressed himself to the effect that perjury rule should apply. It seems to us the Government's position is over technical, that this is, in all essential respects, like a perjury trial, and that there is no good reason why the same requirements shouldn't apply. To be on that, I would further rely on our brief on what is said there.
Felix Frankfurter: I look at your brief or the Governments either, so you'll make it beyond to the Government's brief, but I was wanting to attach great weight to what happens, that prior in these cases leading to crucial evidence, what I like to know from you is what the face of the two-witness rules as to perjury has been in non-perjury false statement cases throughout the State and other jurisdictions. As the rule of man from earth, I am speaking from old memory and I may be older, the rule was not -- was not favored throughout, as the general proposition.
Telford Taylor: Not favored. It is true --
Felix Frankfurter: It is not as an exception to the generality of principle to affect --
Telford Taylor: I think it's fair to that it is regarded as such an exception, yes Mr. Justice Frankfurter, and for that reason, I suppose it was that the Government came into this Court -- I don't know just how long ago, six or eight years ago in the Weiler (ph) case and urged all these considerations and said, we think it's time you change your minds, the rule is old and out of date. Let's have done with it. It was argued I know, by very able counsel and the Court said, no, that we will adhere to the rule. So having -- so completely, I say that issue recently, it seems to me that the Court is not likely to again pour the whole question over from the roots. Even though it --
Felix Frankfurter: (Voice Overlap) need to imply that.
Telford Taylor: Yes. Even -- therefore, it seems to us that if the rule is accepted as part of the paraphernalia with the federal judicial system, the evidentiary system that a matter ended as being overly technical to say, it doesn't apply unless it's technically perjury. That the reasons conspire here --
Felix Frankfurter: My starting point is right, it hasn't been applied except distinctively in perjury cases that it technically confines or confined to -- if you want to put an appropriate through the case --
Telford Taylor: We have put in our brief --
Felix Frankfurter: -- but it has been confined to technical perjury.
Telford Taylor: We have put on our brief everything we confined on. I don't -- I don't think that's quite accurate Mr. Justice Frankfurter. We have found some cases there where it's applied in proceedings related to bankruptcy, which are not technically perjury. We have looked high and low for cases under the false claims -- false statement statute, because of course, that's where we hope to find it, but question doesn't seem to have arisen. Now, what's actually happened to a lot of these trials, I cannot say. But the only cases that it has been thoroughly pursued by the lower courts have been on these 9 (h) cases, and there's division of opinion among the circuit judges on it. Policy considerations seem to me, have been pretty well explored. On the evidence, once again, I would like to restrict my argument to one of the -- of the evidentiary points here. We do complain quite seriously of rulings that restricted the cross-examination, but I think, everything is well covered in the brief as I can hope to do here. The thing I would like to talk about appears in our brief at page 51. It's this expert testimony that I referred to earlier in my argument. It was given by the witness Eckert and the testimony is set forth there at page 51 of our brief, where Eckert is asked based upon his experience and his membership and so forth. Whether there was a party policy on resignation from the Communist Party. He said, yes. And then was asked to state the policy. The policy of the party was that once having joined the Communist Party, you could not leave without being expelled. Now, that evidence was offered by the Government and was used by the Government before the jury to try to convince them that since there was such a party policy, that Travis' public statement of resignation could not have been bona fide. It must have been phony because it was out of accord with his party policy. May I say in a preliminary respect that the Douds case, in which these provisions were upheld, was very explicitly based on the assumption that you could avoid the requirement of this statute by resigning from the Communist Party and remaining an officer of the union. So that a rule of -- I mean, accepting this evidence for the purpose for which it was offered, would seem to make it pretty impossible to resign and comply with what said in the Douds case. It would almost mean that once in, you were in for good and there was no effective way of getting out so that you could continue your union membership. The Government does endeavor to make a more limited justification for this testimony by saying that it is relevant to the petitioner's own state of mind. That if it is a fact that he had been a Communist for several years and if it is a fact that there is such a party policy, this would indicate that his frame of mind when he resigned was not a sincere frame of mind. That he was doing a phony act. If one assumes that the testimony might bear such an inference, it nonetheless seems to me very clear that you could not use the testimony that way, unless it were shown that the petitioner knew of this policy and felt bound by it, that he subscribed to it. And with that in mind, the petitioner asked the trial judge to instruct the jury that in weighing this testimony on the -- this expert testimony on party policy, that they should disregard it unless they were satisfied that Travis knew of this policy and subscribed to it. The trial judge refused to so instruct and he made what seems to me, a bad matter worse by then affirmatively instructing the jury that they could give such weight as they saw fit to this expert testimony, without questioning them. That if Travis didn't know anything about it of course, that it shouldn't be binding on it, so that we complain of that --
Hugo L. Black: Did you say, it could be binding on him if he doesn't want it to be, even if he knew about it?
Telford Taylor: I suppose it's quite possible --
Hugo L. Black: (Voice Overlap) because of that.
Telford Taylor: It is possible that he couldn't have known about it and still not agreed with it. He could have known about it and said I'm going to defy it and resign. All these things are possible but certainly, if he didn't know anything about it at all, the fact that there was such a policy couldn't be used as showing what his state of mind about his resignation was. And all we wanted was for that be made clear for the jury. That unless it was shown that Travis had some knowledge of this supposed policy that it shouldn't be held against him. Now furthermore, our other complaint is that in fact there is absolutely no evidence that he knew about this policy. The trial court seemed to think to the fact that he had been a member of the party was sufficient proof that he knew of this policy but that, under many past rulings, is not a proper inference, the mere fact of membership would not establish that he knew of the particular policy like this. Then the Court of Appeals seemed to think that because he did know about the party's policy on compliance or noncompliance of the Taft-Hartley Law, that maybe this shows that he knew about the non-resignation policy. But there again, I don't think you can infer a knowledge of one policy from the fact that he knows another. So that we say that there was no evidence tying this suppose policy of petitioner and that even if their had been some evidence, we were entitled to a cautionary instruction here that -- to straighten the jury out on the matter. I would like to speak of one more thing before going to the motions for a new trial. We have here two problems under the Jencks statute, 18 U.S.C. 3500. There are two quite distinct problems. I think they're both quite simple and I'm at a loss to know why the trial court encountered so much difficulty in coping with them that it did. The first of these problems relates to the handling of documents which were in the possession of the prosecution. The prosecution in other words, had these FBI reports, conversations with the -- with the Government witnesses, but there was question about some of them, as to whether they were statements within the meaning of 3500 (e), maybe they weren't sufficiently verbatim, maybe they had some other effect. In any event, the prosecution had these statements and they began to embark on the policy that this Court approved in the Palermo case. That is to say, if they had doubt about particular statements, they wanted to submit it to the trial judge in camera, so that he could determine whether or not, it was a statement with the unmeaning of 3500 (e). The trial judge inexplicably, to my way of thinking, ruled that he would not rule under 3500 (e). He said his only function was in 3500 (c), that if the Government brought him a statement, he'd examine it to see if it contained irrelevant material and then he would excise the irrelevant material under the 3500 (c). But he would not make any determinations as to whether it was or was not, a statement within the meaning of 3500 (e).
William J. Brennan, Jr.: (Inaudible)
Telford Taylor: Before Palermo came down, we were informed to try to establish that. I don't -- I don't know offhand.
William J. Brennan, Jr.: (Inaudible)
Telford Taylor: In any event --
William J. Brennan, Jr.: (Inaudible)
Telford Taylor: Yes.
William J. Brennan, Jr.: (Inaudible)
Telford Taylor: That's correct. They did in the Palermo, did just that. It was tried before that, I'm told, but the Government, nonetheless, is prepared to go down this path and to submit them for in camera examination. The trial court said, no, don't do that. Don't bring in any documents unless you are prepared to assume that they are statements under 3500 (e). Then I will approve them for irrelevant portions, but I won't look at them to determine whether they fall within 3500 (e). And having said that to the Government, the Government said, alright we'll then have to reappraise our position. And so far as the record shows they thereafter brought in only those documents which they thought were clearly 3500 (e) and not those which they otherwise would have brought in for in camera inspection to determine whether or not they should be turned over. Now that's one point which relates entirely to documents that were admittedly in the prosecution's hands. Of course, we do not know whether in fact, they would have qualified under 3500 (e). Since they weren't produce at all, they are not sealed and delivered up here so that this Court can't look at them either. We do have the sealed excisions of irrelevant matter from the statements that were turned over, but we don't have the doubtful statements that might or might not have been produceable under 3500 (e), they never came. Our other point under 3500 relates to the possibility of there being other statements that the prosecution did not know about but could find out about. The prosecution witnesses had testified in other proceedings and they, under cross-examination, said, yes, before their testimony and these other proceedings they have talked to government agents, government attorneys. Also, one of them had talked to a Senate Committee investigator when he was down on some other proceeding. The request that the defense made for these statements was broad enough to comprehend and specifically was intended to comprehend any statements that might have been made in the course of these interviews with government attorneys, Senate Committee investigator. The Government took the position that 3500 does not cover Senate Committee agents. And the Government further took the position that it was not responsible to make inquiry to other government attorneys to see if they had produceable statements under 3500. It's quite clear on the record that the prosecuting attorneys said, I'm not -- I don't know what other government attorneys may have.
William J. Brennan, Jr.: (Inaudible) United States, to the district meaning --
Telford Taylor: In the case of the Senate Committee agent, it appears to have been on the idea that 3500 doesn't cover committee agents, legislative agents.
William J. Brennan, Jr.: (Inaudible) issued then by the United States.
Telford Taylor: Yes, but it has a more particular word here that I guess would be the governing word Mr. Justice Brennan and that is agent of the Government, any statement made by a government witness to an agent of the Government. More broadly, I think it was his position that all he had to do was to find out whether the witness has made statements to the FBI, to make inquiry in Washington for whatever they might have and that was the end of his responsibility in the matter. And he talked about how he couldn't be responsible for what other government attorneys might have done and he didn't see how the Court could ask a Senate Committee to turn over documents and so forth. So it seems to have been a legal objection that he made. As a result, the Court never did rule on this. They never did require the prosecution to find out whether there were any such statements in the hands of Senate Committee or other government attorneys and the prosecution was never made to explore the thing. What we see -- once again, we do not know whether there may or may not be any such statements. If they exist, they might or might not be of the kind that would be producible under paragraph (e), might or might not be verbatim or not. But at least it seems to us, inquiry should have been made to find out and the government attorney should not have taken the position that this wasn't his job. The result of this was that instead of a simple request for information to these places, defense counsel had no recourse but to try to examine at length, the witnesses in camera to see if they recalled having made any statements, what are the circumstances or their talks were, and so forth, which wasn't the satisfactory procedure because the witnesses themselves could not be sure whether or -- whether there was or wasn't any statement of their interview. There could have been a recording made that they knew nothing about. The Government would know whether they did or didn't have any statement emanating from those conversations.
William J. Brennan, Jr.: (Inaudible) this far in this procedure?
Telford Taylor: No, they're not Your Honor. They are not. They were not produced in the camera. They are not produced to defense. They are not produced at all and they're -- they're not part of the record or available here.
Felix Frankfurter: I may have -- and probably you've stated it, I missed it if you had. The applicability of the perjury rules that assuming the perjury rule governs, is there a defect in the charge --
Telford Taylor: Yes.
Felix Frankfurter: -- on the assumption that the perjury rule didn't govern?
Telford Taylor: That's correct Your Honor. If the perjury rule governed, then there should have been a charge, and the charge was submitted embodiment.
Felix Frankfurter: (Inaudible)
Telford Taylor: That's right, yes. We have one other point about the trial which I wish -- I would've otherwise liked to talk about, but I think I'm going to pass over the point relating to the instructions on membership. Let me just state briefly that the point of our complaint is that in the charge the jury on membership, the indicia of membership as set forth in the Communist Control Act of 1954 were used, were stated to the jury as basis from which membership where -- as things to be considered in determining whether or not he had remained a member. The Court at the moment has the SACB case which was argued in October, in which the constitutionality of those indicia comes up in quite a different context. That is there constitutionality or not, in terms of the Internal Security Act of 1950. Here you have the question whether those indica can validly be used as instructions to the jury in a criminal case involving the issue with membership. And we say that in the first place, we complain about the fact that instead of -- if you're going to give the indicia at all, it seems to me you should have given all of it, but you didn't. But we do complain about the indicia themselves on the ground that they are so vague and so sweeping that they cannot validly be used as the basis for a jury determination on this issue. All that is we set forth in our brief, I hope. Now, I then, deal with cases 3 and 71, the motions for a new trial. And may I say quite frankly that No. 3 is by far the more important of two, it is doubtful whether No. 71 would have been made, except for its cumulative interests coming on top of the motion in No. 3. The motion No. 3 concerns the same witness Gardner, whose conversation used from another connection. And Gardner also testified in a case in Cleveland, in a federal court in Cleveland, the West case, which is a case involving a conspiracy to make false affidavits under Taft-Harley Law. That case is pending on petition for certiorari here at the moment and not yet acted on. And in that case in Cleveland, Gardner was asked whether he had had any military service. And he replied with the flat denial that he'd been ever in the Armed Forces. The attorneys in the West case then wrote to the Government to make inquiry and the result of their inquiry, you'll -- the Court will find at page 3 of the record in No. 3. The Department of Justice wrote back saying that inquiry now disclosed that the he had served in the Armed Forces from 1922 to 1925 and the course of which he was absent on -- without leave and he was court-martialed and confined at hard labor. He then reenlisted in 1925, I beg your pardon, in January 1926 and had then deserted on May 11. And so, he had a somewhat lengthy and checked military history. The false -- the false answer on his ties into another thing which is referred to at page 4 of the record and that is the FBI report which was furnished to the defense now in this case, in the Travis case, under 3500. And the essential facts of which were at the top of page 4 there that he had no military service and that he'd been employed by the DuPont Chemical Company from 1925 to 1929. The discrepancy on that date, a check revealed that he went to work there in 1926, not 1925 and the mistake on that date of course, exactly coincides with the year 1926, when he in fact deserted from the Armed Forces. Now, admittedly, these matters are not directly on the issue of the trial. They could be described as being collateral in that sense. And the Government says that they provide no basis for a new trial for that reason. We think that the decisions in (Inaudible) and other cases have -- well, they haven't eliminated at all the question of collateral -- collateral proof. They do indicate that under some circumstances, collateral evidence which is destructive of the witness' credibility, maybe the basis for a new trial. And this again, I think must be viewed in the light of the kind of case this is, where really the only direct evidence we have to go on are these conversations to place the time in the affidavits and Gardner's version of what those were, coupled with the fact that has admitted hostility to this union of this defendant and that his credibility became a vitally important matter. Well now, this is certainly very damaging to his credibility and we think would have been a vital -- might have been a vital impact on the jury. The Government makes one other argument here in the West case itself when this test -- this information was uncovered. They made a motion for a new trial in the West case, which was denied and the denial of that motion is one of the grounds for certiorari which has been urged here. The Government says, the West case has therefore -- the judge there has waived this and found it insufficient as the judge did in our case. But the two things are not -- are not on the same bottom here, because in the West case when they held -- they'd had their hearing on a motion for a new trial, it was brought out that one of the defense attorneys in the West case had known about Gardner's military service at the time he testified. Therefore, says the trial judge, it's very unlikely that Gardner testified deliberately falsely because he knew that this defense attorney knew about it. He probably thought the question was directed only to World War II in which he didn't serve. And therefore, we don't think he deliberately falsified. Well that explanation might have been all right in the West case, but it obviously doesn't fit the fact that in this case, we also have the FBI report. He certainly wasn't called into any error on that because of presence of -- the presence of the defense attorney and the fact that the dates of employment are falsified in exactly the right way to cover up the year of his desertion, is further a very strong evidence that this was deliberate falsification. So we say for all those reasons, the motion in No. 3 was sufficient grounds for a new trial, the motion in No. 71 is based on other discrepancies in Gardner's testimony about the time of his marriage and divorce, which standing by themselves, wouldn't have supported the motion. But they do accentuate the impression that you get from the motion in No. 3 that this -- there's a man who was capable of a very deliberate and extensive falsification. Mr. Chief Justice with the Court's permission, I'll reserve the balance of my time.
Earl Warren: You may. Mr. Searls.
George B. Searls: Mr. Chief Justice and may it please the Court. Because Mr. Taylor spoke first on the venue point, I shall cover it, but briefly. If the petitioner had not mailed or caused to be mailed, the letter in Denver containing these affidavits, they wouldn't have been filed to the Board in the District of Columbia. He acted, we think, in Denver to produce a result in effect in Washington. He started a force going that ended up in Washington. Now, the Lombardo case is what the offense was the failure to file. And while petitioner's scarce at the distinction -- I think we can't overlook at the fact, there is a difference between action and inaction and between malfeasance and nonfeasance. If you're required to file something at a given place and you never do it, you don't do it on the appointed date, the courts haven't pushed any rule to the point of saying that you commit a failure in your home. That was an argument the Government made in Lombardo. But there have been a great number of cases in which false statements had been mailed from distant points to Washington and the offense has been held subject to prosecution in the district of the mailing.
John M. Harlan II: Supposing he had sworn to the statement in Colorado and then instead of putting it in the mail, he has gotten on a train and delivered it in person in Washington, could you have indicted him in Colorado?
George B. Searls: I don't think so, sir.
John M. Harlan II: You don't think so.
George B. Searls: I think it's when --
John M. Harlan II: It's the use of the mail that you --
George B. Searls: Well, no, it's not so much this use of the mail that he has put it out of his control. Now there are some cases cited in the briefs where men made a false affidavit or a false statement. In New Jersey, let's say, and then took it across the river, filed it in a government office in New York. Now, up until the time when he handed that in, he could've withheld it or he could've corrected it. And the Court held in those cases and I think correctly that the place of filing was the only possible jurisdiction. But here, neither the Lombardo case nor any other case that I know, says that false filing and non-filing are in the same category.
William J. Brennan, Jr.: (Inaudible) after the affidavit has arrived (Inudible)?
George B. Searls: I think Your Honor it would have been saved by the hand of province.
William J. Brennan, Jr.: In other words, that actual violation of the (Inaudible) element that they administer --
George B. Searls: Actual filing is evidence of what Your Honor?
William J. Brennan, Jr.: The element of the (Inaudible)
George B. Searls: That -- that is correct. But he began the course of events in Colorado.
Earl Warren: Suppose Mr. Searls you -- we take the situation that General Taylor spoke of. He says that all his affidavits were given by various officers living in different parts of the country and they were assembled at Denver. Then they were put in the mail and before they reached Washington, the union said, we would -- we don't want those filed. We want them returned to us and we're not going to ask for a certification. What -- what would be the situation there?
George B. Searls: I don't think then Your Honor there would be an offense.
Earl Warren: There would be any filing?
George B. Searls: If the notification not to take them arrived before the letter containing the affidavits.
Earl Warren: Well, how can you -- how can you say to them that this is irreparably beyond his control when he puts it in the -- in the mail. There is -- is it --
George B. Searls: Well, it's a --
Earl Warren: -- beyond his control --
George B. Searls: This is a question --
Earl Warren: -- until it is actually filed?
George B. Searls: This is a question Your Honor, of his personal control. What he did, what the officer did in this case was to prepare the affidavits or secure, I'd call it. They were apparently given to the president of the union, who mailed them. And in other words, a stipulation I believe that they were caused to be mailed or at least that was admitted. I suppose up to the time that the affidavit actually left the union officers in Denver, Mr. Travis would have had the right to recall it.
Hugo L. Black: What would you mean then? Couldn't he have done this?
George B. Searls: Would have the right to recall it. I mean to say, don't send in my affidavit.
Hugo L. Black: But I'd -- I saw it and I have acted on the assumption a number of times that I could go to the post office to get my letter back, that I didn't want it to be delivered.
George B. Searls: ell of course, the fact here is that he made no effort to get it back.
Hugo L. Black: What is that answer?
George B. Searls: The fact here is he made no effort to get it.
Hugo L. Black: Well, I'm not talking about that. I -- I thought you said it was beyond recall and I thought that was rather -- for whatever it was, it may not be what you think here, but I thought it was quite customary for some people to mail a letter and then find out that didn't want them to go or mail something else, then go down and get it.
George B. Searls: Well, of course the -- I understand there has been a practice in recent years of post office whereby you can get letters back. We have to act very quickly.
Hugo L. Black: And that's right.
George B. Searls: You have to act very quickly.
Hugo L. Black: I agree to that [Laughs].
George B. Searls: And I suppose [Laughs] --
Hugo L. Black: That's right.
George B. Searls: And I think it's quite a complicated procedure. I've never had to do it.
Felix Frankfurter: You can't get it back if it's delivered at the other end, can you?
George B. Searls: No, sir. And now, to go on -- before going on to something else, I want to (Voice Overlap).
Hugo L. Black: I take it -- I wouldn't suppose that would be possible to get it back to the post office as they've delivered it to somebody.
George B. Searls: It wouldn't be filed [Laughs]
Charles E. Whittaker: Mr. Searls, is there any legislation requiring the mailing of such affidavits?
George B. Searls: I don't think they're required to be mailed, Your Honor.
Charles E. Whittaker: They maybe carried in and then filed.
George B. Searls: Yes, I think so.
Charles E. Whittaker: Then whose agent would the mails be if they were elected to be used?
George B. Searls: I'm sorry, I didn't get --
Charles E. Whittaker: Whose agents would the mails be in a case like this?
George B. Searls: I suppose it's the agent of the mailer.
Charles E. Whittaker: The defendant?
George B. Searls: Yes.
Charles E. Whittaker: Now, as an affidavit of these towns in Denver, when he handed it over to the agent for mailing, how (Inaudible)?
George B. Searls: Well, I think it's a case within the language of the statute. He began the offense.
Charles E. Whittaker: An offense?
George B. Searls: By causing it to be mailed.
Charles E. Whittaker: Now, what was the offense there?
George B. Searls: The offense making or using a document containing a false statement.
Charles E. Whittaker: The statute says, the offense shall be the -- well, it requires that the affidavit shall be on file with the Board.
George B. Searls: Well, Your Honor I think, we have to take into account, we have two statutes here leaving out of -- account from a -- the continuing offense statute. 1529, doesn't require any affidavit to be filed anywhere. It says the Board shall not take certain proceedings unless an affidavit is on file with the Board. Then the section ends up with the words, "The provisions of Section 35 (a), that's now 1001 of the criminal code, shall be applicable in respect to such affidavits." Now, that is the statute which I referred when I said it penalized the making or using of a document containing a false statement. And I think when it seems to us -- when Mr. Travis caused to be mailed a false affidavit, if false it was, that he was then putting the affidavit to the use for which it was designed. There was no --
Hugo L. Black: He was getting ready to file it?
George B. Searls: Yes, Your Honor.
William J. Brennan, Jr.: Mr. Searls, what's the significance of this (Inaudible), what's the significance of the (Inaudible), it's left beyond the court to submit these letters (Inaudible)?
George B. Searls: Well, his action -- his action has ended. I mean, I have in mind of course that the mails might be viewed as his agent and in that sense, he was continuing to act. But the -- as far as Travis was concerned, the thing was over and done with, when the affidavit was mailed.
William J. Brennan, Jr.: Well, then I suppose the bearing on the question that Mr. Justice Harlan asked, he's just -- supposing (Inaudible)
George B. Searls: Yes.
William J. Brennan, Jr.: (Inaudible) he had given it to union president (Inaudible). Well, there's some fragment (Inaudible)
George B. Searls: I don't think that would be quite as strong as the mail because of the possibility of recovery would be greater.
William J. Brennan, Jr.: But them you do exercise the possibility of recall as an element then whether it was sent to namely --
George B. Searls: I think I -- I think that is one element, Your Honor.
William J. Brennan, Jr.: Now, that (Inaudible) namely that one man who is caused it to mail, recovers from post office before delivery a letter (Inaudible), I take it that (Inaudible) Washington Post Office, when it arrives at Washington before delivery to the Board.
George B. Searls: I'll assume that's so, Your Honor. I don't -- I'm not sufficiently familiar with the procedure. I would have -- I would have supposed that you had to make a ratification at the post office where you mailed it. But at any rate, if he --
William J. Brennan, Jr.: Well, you'd assume that, if you assume that might be the cause for a delivery --
George B. Searls: Yes.
William J. Brennan, Jr.: -- from Washington Post Office, then certainly (Inaudible) Washington would be no basis for (Inaudible) in Colorado.
George B. Searls: I think there would be Your Honor, since he had made no effort to recall it.
Felix Frankfurter: If -- if the affidavit -- if the affidavit doesn't reach its destination, there is no offense. And therefore, it's idle to call as to where this prosecution should be brought, there's no offense.
George B. Searls: That's --
Felix Frankfurter: If the affidavit is filed, then the problem arises whether the fact that it had -- I'm not now speaking legally, but I'm speaking physically. Something that had a beginning or -- and an end in the outlived world, wether that comes within the statute which allows prosecution to be brought at either place. All the -- all the hypothetical cases where the stuff hasn't arrived, doesn't get you anywhere because there's no offense.
George B. Searls: I agree -- I think that's a correct statement.
William J. Brennan, Jr.: (Inaudible) trying to find out the significance of your argument of the approaching to (Inaudible) and certainly (Inaudible) the meaning of that then there is that (Inaudible)
George B. Searls: Well, I think you also have taken to account perhaps, Your Honor that when we mail a letter, we figure that's done. That's the ordinary reaction. We don't consider the possibility that we could rush around to the post office and get a stop order or whatever they call it. As far as we're concerned, the act is complete. And I think that is the situation here. Now, there's been some mention made in some of the other cases under this statute. Well --
Earl Warren: Before you get to those cases, could I give you one more hypothetical and this is a case where -- where it does get to Washington. But suppose this petitioner instead of living in Denver, Colorado lived in Washington, DC and he sent his affidavit back to Denver and it was sent from Denver by the union to Washington where it was filed, would you prosecute him back in Denver?
George B. Searls: I don't know, Your Honor.
Earl Warren: You don't know?
George B. Searls: Well, I think we could, but I wouldn't regard it as a strong case because if you send it to the union, while you -- it's instruction, now you take this and mail to Washington. You're making the union your agent to that extent.
Earl Warren: But wouldn't it be doing that whether he lived in Denver or whether he lived in Washington, DC?
George B. Searls: Yes, sir.
Earl Warren: So what's the difference between the two cases from a standpoint of venue under the statute?
George B. Searls: I don't know if there is any Your Honor, but --
Earl Warren: Then why were you saying --
George B. Searls: -- except in the case you put, I'm sure he would've been indicted after all in Washington.
Earl Warren: Now, you say, you're sure he would, but I say, could you indict him, don't we have to know whether a man under those circumstances, could be indicted, as this man was, at the place where -- where it was deposited in the mail? I thought it was your theory that when he put it in the mail, the crime -- there was a beginning of the crime there.
George B. Searls: Your Honor, as far as whether --
Earl Warren: Why wouldn't it -- why wouldn't it be --
George B. Searls: -- whether it's put in the mail addressed to the place where it is intended to be filed.
Earl Warren: Yes, whether it would be there just -- it would be done, just in exactly the same situation in either case.
George B. Searls: No.
Earl Warren: Except one fellow lived in Denver and the other one lived in Washington, DC. How do you differentiate those two cases?
George B. Searls: I don't know that I do, Your Honor. I think it -- as I said that in the case you put, an indictment could be laid in Denver.
Earl Warren: You say it could?
George B. Searls: I think so, Your Honor.
Earl Warren: Well, I understood you to say that (Voice Overlap)
George B. Searls: First, I change my answer, Your Honor.
Earl Warren: Oh, I see. I see.
Hugo L. Black: I understand that your argument is that if a man gets ready to commit a crime in Colorado, then it's committed here, that's a continuing crime and that you can try it at either place?
George B. Searls: Well, I don't like the term continuing crime --
Hugo L. Black: Well, whatever it is.
George B. Searls: It's begun in Denver --
Hugo L. Black: To get ready --
George B. Searls: -- begun in Denver and completed in Washington.
Hugo L. Black: I read this morning about a decision of the district where a man got ready up in Philadelphia and bought himself a gun, got on the train and came Denver here and killed his wife. It's cited down here. Do you think that that was a right place for trial?
George B. Searls: I think so in that case, Your Honor.
Hugo L. Black: Well, he got ready to commit the crime, before he came here.
George B. Searls: Well, that's a difference with the cases though I suppose between preparation and beginning.
Hugo L. Black: That's -- you said a while ago in an answer to my question that this man get ready to commit the crime up there then filing which is a crime. And therefore --
George B. Searls: Well, I thinking he has to -- not only get ready, he has to do an act.
Hugo L. Black: But this man did an act, he bought himself a pistol up in Philadelphia, for the expressed purpose of shooting his wife, it's according to the paper. At least I've seen so is the case.
George B. Searls: Oh, I think Your Honor in that case, that would be the only case he could be tried would be -- he didn't begin to commit -- shoot his wife in Philadelphia.
Hugo L. Black: No, well, he -- he didn't begin it. This man didn't begin to file this there. He gave it to the --
George B. Searls: Well, as far as trial --
Hugo L. Black: He wrote it out.
George B. Searls: -- is concerned I think the filing began or the beginning of the filing was when the letter was put in the post office.
John M. Harlan II: Well, isn't it equally begun when he swears to the statement in Colorado?
George B. Searls: I'm sorry, Your Honor.
John M. Harlan II: Why is it not equally begun, in your theory, when he swears to the statement in Colorado?
George B. Searls: Because Your Honor -- I don't know, Your Honor, but I suppose the difference is this that until he relinquishes the affidavit --
John M. Harlan II: That the statute covers both making and using?
George B. Searls: Making and using. Yes, Your Honor, but my impression is that the cases, not in this Court, but I don't know if this Court was ever presented on the question, have interpreted making in the sense of presenting or something in sense of sort of presenting of making false testimony in the sense, you don't do it until you give it. But I say that he made it and used it in Denver at least to the extent of beginning of filing which was a violation of 1001, not a violation of 159 (h), except insofar as to two statutes are read into each other.
Charles E. Whittaker: If I gather your argument, you make your point then of (Inaudible) similar to a negotiable instrument or a deed that one might prefer as long as he holds it in his hands had part admitted, not his act. But when he delivers it to put in the record or transfer it, then that's a beginning of a crime that's involved, it's the beginning of a crime. Is that your position?
George B. Searls: I'm not sure that I got the first part of the question, Your Honor.
Charles E. Whittaker: Well, I will -- I want you to (Inaudible) lightening your position to that of delivery of an instrument.
George B. Searls: Well, I --
Charles E. Whittaker: (Voice Overlap)
George B. Searls: -- I suppose it prospers your resemblance to the -- some resemblance to the point in the law of contracts, I understand the majority rule there is an acceptance -- effective when mailed.
Charles E. Whittaker: And that to mail it was -- was it the -- was the --was the delivery or for the purpose --
George B. Searls: The mailing was a necessary part of the delivery. There's nothing in either statute that uses the word "delivery". I would like to point out on that point most of the prosecutions, as far as I know, have concerned -- well that, I think the exception of Ben Gold case, officers of local unions, under the Board's regulation, those unions are to filed in a regional office of the Board where the union is located. And I think that is probably the explanation why most of those prosecutions have been doubted around in different districts.
Earl Warren: As I -- I understood General Taylor to say that all except two of these prosecutions had been commenced here in Washington.
George B. Searls: All but two of the -- oh no, Your Honor. I --
Earl Warren: I -- I may have misunderstood it in my --
George B. Searls: I -- I didn't understand him to say that.
Earl Warren: All but this and one more, I understood him to say.
George B. Searls: No, theres been a -- perhaps, he was limiting at the cases of national officers.
Earl Warren: Yes, that's right.
George B. Searls: Well in that case that maybe true. I don't know, but I'm saying that a lot of the cases under the statute are indictments of local officers --
Earl Warren: Oh, yes.
George B. Searls: -- where the filing is not to be in Washington, but in the regional office which maybe in Philadelphia or Cleveland, any one or the other regional offices.
Earl Warren: Well, how does that strengthen your position?
George B. Searls: Well, no. I --
Earl Warren: In -- in most or once -- if the national (Voice Overlap)
George B. Searls: It doesn't strengthen the position at all, Your Honor. It only explains why these cases have been doubted around the country.
Earl Warren: Well, he as I understood was not complaining because they were doubted around the country as you say.
George B. Searls: I don't think Your Honor.
Earl Warren: He -- he said that those -- the national officers that were prosecuted under this Act with the exception of this in one other case, were all prosecuted here in Washington.
George B. Searls: I don't think, Your Honor. There have been many cases of indictment of national officers. The Gold case I think was one and this was one. The Valenti case, which was also mentioned, I think, was the case of a local officer which wouldn't have been brought here anyway. Offhand, I can't claim to be familiar with all these cases. I do not know of any prosecution except this, the Gold case of a national officer.
Felix Frankfurter: You mean, not -- you can't of any case that were litigated, but are you saying there were no prosecutions brought at all in the district or anywhere else?
George B. Searls: No, Your Honor. I'm saying there -- the two prosecutions of national officers.
Felix Frankfurter: Yes.
George B. Searls: One brought here and one brought in Denver.
Felix Frankfurter: But they weren't brought, not that the question was litigate at the national office. You say that's the total record of prosecutions begun. Is that what you say?
George B. Searls: Of national officers I think, Your Honor.
Felix Frankfurter: That's what I'm talking about.
George B. Searls: Yes.
Felix Frankfurter: Because the other one presents a different problem.
George B. Searls: Well now, with the Court's permission, I would like to go on to develop the evidence somewhat. We think that the evidence has to be looked at as a whole, to see the way the parts tie in with one another. That it is not reasonable as the petitioner's brief does to take each isolated utterance and try to explain it away in the terms of what it might have meant. It might mean one thing. If there was no background, it might mean quite another thing against the certain background. Now, for example, I would like to start with this talk that Gardner testified to that he had with petitioner in the fall of 1951. Now that was on the return from a trip to Canada. Travis came and I think John Clark, the president of the union, came to Buffalo. Gardner went over there from Buffalo and drove them in his car across the Canadian border. Then later, I don't know where Clark went, Travis and Gardner drove back alone. And it was then that the conversation took place. Now at that time, Gardner was a member, an active member, of the Communist Party. And it was in that context that the conversation occurred, which Travis told Gardner that he started out by calling him, "You come with excellent recommendations from the Communist Party in Cleveland." I don't know why the Communist Party in Cleveland would recommend one of their members to a non-member in another city, but that is one little brick, I think, in the structure. Then, there was the testimony that Gardner -- that Travis said that he realized that his public resignation had been a mistake because some enemies, he gave the enemies of the Party, in outcome, they are pointing out that it wasn't real. We think the jury could infer from that that Travis meant two things. One, that his resignation was not really bona fide; and two, that Travis was a member of the Communist Party; he was talking as one Communist to another in the fall of 1951. Now, the jury could relate that back to Eckert's testimony that in 1948, at a meeting in his home which was then in Chicago.
Earl Warren: That was before the affidavit?
George B. Searls: That was before the affidavit, Your Honor. Before the resignation, too.
Earl Warren: Yes, yes that's --
George B. Searls: Travis asked a Communist official, Green, who was present at the meeting, whether the policy of Lenin to the effect that it was important, all important for the Communist to remain in the trade union and to use every trick or artifice to accomplish that and whether that applied to the situation and they were talking about the Taft-Hartley affidavits.
Hugo L. Black: What page is that Mr. Searls? If you have it before you, can you give me this? If you haven't, that's alright.
George B. Searls: Well, it's referred to on our brief on pages 15 and 16, Your Honor. And according to the testimony at that conversation, Green said, "Well, if you resign, the officers can join something like a social" and he meant, union officers, “social -- Thursday afternoon social club”, which wouldn't necessarily be the same thing as the Communist Party. The jury could also tie up both of those items or the other item, a testimony by Mason in 1949 that he talked with Travis and that Travis told him, showed him his resignation statement. This was before this -- I mean statement that was published. This was before it was published, and said it has been cleared with Ben Gold and with the party people in New York. In other words that it was being published with the approval of the Communist Party. That also had some bearing, we think, on the fact to that up to 1948 according to Eckert's testimony, the Communist Party had a no resignation policy.
Hugo L. Black: What difference does that make so far as he was concerned?
George B. Searls: I only think --
Hugo L. Black: He could resign if he wants to, couldn't he?
George B. Searls: It makes a difference if we can show reason for inferring that he knew of it. And also, Your Honor, I point out that in 1948 and 1949, between 1948 and 1949, the Communist Party changed its policy on the Taft-Hartley affidavits.
Hugo L. Black: So that's a different thing, what happened (Voice Overlap)
George B. Searls: Yes, but I mean, they apparently were compelled under the pressure of the Act to modify their noncompliance standard -- stand, which they took in 1948. And then by 1949, according to what Mason, I mean, Travis told Mason, their policy was to have union officers submit -- file the affidavits. Now that --
Hugo L. Black: What I don't understand is the expert testimony in that connection or the purpose of expert testimony to show that the (Voice Overlap)
George B. Searls: I don't think, Your Honor has --
Hugo L. Black: It had a policy that members couldn't resign. It couldn't bind them, could it?
George B. Searls: No, of course not for purposes of the law Your Honor, for purposes of the statute like this. It could, however, have this bearing that it would show the degree of attention that Travis paid to the Party orders and the Party policies. That he thought that in 1949, when he claimed he was resigning, he had to get the agreement of the Party to it. I take it the no resignation policy didn't exclude the possibility that the Party might agree to let somebody resign.
Hugo L. Black: Well, it didn't have to agree, that's what I don't understand.
George B. Searls: Well, I'm -- that --
Hugo L. Black: Unless you are saying, as you have the evidence that there was some kind of a policy under which this man agreed with them and showed some way that he agreed with them that he wouldn't resign, when he did, although it was a fake.
George B. Searls: I don't think, Your Honor, that the --
Hugo L. Black: I don't understand how you can prove that by the fact that the Party had a policy that didn't want its members to resign?
George B. Searls: Well, I think the very -- only bearing in has upon is whether when he agreed with the Party on a resignation whether -- well it has some slight bearing on the question whether it's a bona fide resignation or whether the Party had agreed to it for purposes of his own -- of its own, which might well mean that it was not --
Hugo L. Black: I can understand the relevance he lived and would pretend to show them, but I don't understand that producing of an expert to show that the confidant -- the Party didn't let its members -- didn't want its members to resign and said they couldn't – it couldn't keep them permanent if they wanted to, could it?
George B. Searls: No, Your Honor, but they could -- I suppose their only -- you're looking at it from the, we're looking at it from the wrong end of the telescope. I mean, the Party says, you can't resign if it does. That means that if you submit a resignation and they don't accept it, they're going to consider -- consider you a member but that doesn't -- going to mean you're going to be a member for purposes of a false affidavit under the Taft-Hartley Act or for other legal purposes.
Hugo L. Black: It doesn't mean you'll be member at all, does it, if you resign, without regard to what we --
George B. Searls: No, Your Honor. I would -- I would say, it does not mean he is a member at all.
John M. Harlan II: I understood from what you said that you agree with the General Taylor that this evidence was pf no significance, unless the knowledge of this policy -- this alleged policy --
George B. Searls: I don't --
John M. Harlan II: -- brought home to the defendant.
George B. Searls: I don't think, even if he knew it whether have much significance, Your Honor, for the reason that --
John M. Harlan II: You don't think that this evidence --
George B. Searls: There's evidence that the Party policy in other respects, I'm speaking of the Taft-Hartley affidavits, they changed very significantly between 1948 and whenever they did change it in 1949 and it would seem to me logical that at that time they would also, if they had had a no resignation policy, make a change in that too, because whether a resignation of a union officer was going to be bona fide or not from the Party point of view, they'd have to modify this so-called policy, if they were going to agree to it.
Earl Warren: I wonder when Congress passed that law requiring those affidavits to be filed that -- did it contemplate that no man who had ever been a Communist could file such an affidavit or did it contemplate that by resigning, he could -- he could file the affidavit?
George B. Searls: I think it was -- I think it's pretty clear that it was contemplated that by resigning, he could file, providing it was the real and bona fide resignation.
Earl Warren: Well then I see, if the jury believed that he could not, under any circumstances resign, then it wouldn't -- it would believe that he had no right, having once been a Congress -- a Communist to do so, you think?
George B. Searls: I don't think, Your Honor, in view of the instructions of the court that the jury could have reached that conclusion, because they were very plainly instructed that membership, in the sense on which it was relevant to the indictment, was a matter of mutual consent.
Earl Warren: Well, but if the Communist Party would not let him get away, then how could it be a mutual consent?
George B. Searls: Well, I can give the same answer I gave Mr. Justice Black. He would not be a member although the Communist Party would -- might consider him one. They might carry him on their role still as a member, but he would not be member if he resigned in good faith, and --
Earl Warren: -- then whether, whether they have this policy or not --
George B. Searls: Well, that's right.
Earl Warren: -- it makes no difference.
George B. Searls: But I don't think, under the instruction of the Court that evidence prejudice -- had any real chance of prejudice in the defendant. Now, I like to go to one more thing and that is, the jury could also take into account, the conduct of the defendant -- of the petitioner before 1949 and during the period 1952 and 1953, in which -- during which times, he was acting as an active member of the Party and as one of the leaders of the Party in the union. Now, in March 1952, he had a conversation with Mason, I think, in which about some proposal which the Communist in Russia had made or the Russian delegation to some convention in Europe, that a third federation of labor be set up in the United States. The term was used the expelled unions by which I take it to mean, the unions like Mine Mill, which ultimately was cast out of the CIO, and I gathered there were probably some others. Travis was the man selected apparently by the Party to pass -- discuss that matter with the members or the leaders of the union and to report back to the French Communist who was delegated to receive the news. Then in 1953, Travis was apparently important and active in both the Party and the union, because according to Mason's testimony, Travis had to say as to what went on the agenda at the annual staff conference of the union. And it was at that time that Travis made the statement in regard to apply to something Mason said that "when they get us Communist, they will be after people like you." Later in 1953, Gardner who was still a member of the Party was transferred by Mine Mill from Cleveland to Idaho. He was instructed on his way west to stopover at Denver to be briefed by Travis. And Travis told him that there was a serious factional dispute in the Party going on in the District in Idaho to which he was going. And until that dispute was resolved, he was to refrain from any active party activities in the district to which he was going. Now, that suggest that at that time, Travis was not only a member of the party, but was at a position of authority in it so that the man who didn't -- who was an employee of a union, could be instructed to stop over and see him and get his instructions from him. Now, then in 1953 later, Mason complained to Travis about the tactics of Travis and what Mason called, his party watchdogs, in regard to a -- some collective bargaining that was going on in Montana. And he said that he spoke to -- he told Travis that, "I am speaking to you as the leader of the Party in the union." Again, later on they had another conference and Mason says that he discussed with Travis, Travis' party activities, as leader of the Party forces, meaning in the union. And that during that discussion, Travis said "Well you and Joe, Mason's brother, had your chance, you were invited to join the Party. Had you done so, you would be sitting high in the council of this organization with us." Now, we submit that on that evidence, taking it all together, the jury could find, there was a continuous course of Party activity of such a nature as to justify the inference that Travis, in the one narrow period, which hasn't been covered by evidence, 1950 and the part of 1951, that Travis was a member throughout there. He only claimed he resigned in 1949. He never made any claim that he resigned at any other date. And we think that the evidence brackets the affidavit dates, December 1951 and December 1952, so that the jury could properly find that he was a member of the Party on the date when he signed. Your Honor, I urge with the permission of the Court, I should like to leave to our brief the argument on what is claimed to be errors in the admission or exclusion of evidence. Mr. Taylor paid very brief attention to it. And I think our position is adequately set out there --
John M. Harlan II: (Inaudible)
George B. Searls: -- and I want to come to another factor of the case which I regard as more important matters, the question of the production of the grand jury members. Our position is that whether it's for purposes of production direct to the defense or for purposes of in camera inspection, the trial court has discretion in handling a motion for either or both of those forms of relief. And I think to judge whether the trial court here abused its discretion, we have to read the record carefully because well I would almost say, there are as many pages of argument and colloquy in chambers on this subject and related subjects as there are of testimony in court in the record. It was explored extensively and you can't rest on any one statement, either by the trial court or by a counsel for the defense or by the United States attorney. Position shifted a little bit as the trial went on. Now, we say that the trial judge did not abuse his discretion and we have several reasons. The first reason is that plaintiff's motions for production, except in possibly one or possibly two instances, were too broad. Plaintiff's briefs, despite speaks in terms of a request for the minutes of the grand jury testimony, which is the way in which one would speak or write of a request for the minutes of the jury which returned the indictment, which is on trial.
Earl Warren: What would you say this minute, instead of these minutes?
George B. Searls: No, Your Honor. What he started off by saying was he wanted transcript with respect to Eckert, of his testimony before any grand juries and he named a number of cases in which Eckert had testified and he wanted transcript before any of those juries, only two of which were in the District of Colorado. That ties up with what Your Honor just said about these grand juries, that's on page 424 of the record.
Earl Warren: I see.
George B. Searls: At that time, I think counsel had not modified his previous motion. So he was still asking for the testimony of all the grand juries before which, it could be found out, that Eckert had testified. Now, later on, he did modify his request. He came down, this is on page 425 of the record, to a request for the transcript of Eckert's testimony before three grand juries. Before the grand jury that indicted Travis in 1954, before the grand jury which indicted Travis and 13 other people for another -- and another -- for another offense in 1956, and for the Travis' testimony before the grand jury in the Gold case which was here in the District of Columbia. Now, as to Mason, the motion was for any grand jury testimony this witness has given and is -- I am not entirely sure, but I think, it was at that time that counsel for the defendant said, the United States attorney has told me he's testified before a number of them. I think that was in connection with Mason. Now as to Gardner, there was also originally, a motion for a test -- production of testimony before any grand juries. There's also one time where the counsel attempted to question Gardner about his testimony or whether he had testified in the 1956 grand jury hearing as to each of the 19 -- of the 14 defendants, named in the 1956 indictment. He finally came down, however, as with respect to Gardner to a request to examine his 1956 grand jury testimony as to two episodes of Canadian trip, which I have mentioned and the talk with Travis in Denver when Gardner was on his way to Idaho. Now, the court -- there's been some discussion argument in the briefs as to whether the court sustained improperly questions as to examination before grand jury. I think in a great many instances that was sustained, where it was a testimony before another grand jury than the one which returned this indictment in 1954. I might also point out that it is clear that what the defense was looking for was not the ordinary case of the -- as I advised, we expect of moving to see the grand jury minutes in the grand jury which indicted the defendant. But in most of his request, were addressed to all, as many as grand juries as he could think of. Now, I think that all the instances cited in plaintiff's brief on page 32, of -- objections being sustained to questions asked witnesses as to testifying before grand jury. I think, all the items listed on in that refer to the 1956 grand jury, which had indicted Travis for another crime and indicted 13 other defendants. Now that case, at that time, was still pending, according to a statement in the record here, in the District Court of Colorado on a motion to dismiss the indictment. It hasn't apparently even reached the trial stage. Now, I understand that it is implicit in this Court's decision in Palermo possibly, in some other decisions that to get grand jury minutes or even perhaps to have the judge look at them in camera, the defendant has to show a need. Now, perhaps the reason defendant's counsel was asked more questions, that it seems to me, about the 1956 grand jury and about the 1954 grand jury was that he has in his hands transcripts of the testimony of Eckert and Mason at the first trial of the petitioner which took place in 1955 and which -- of which he may have very little use in any attempt to show inconsistencies. Now, as to Eckert, he had also transcripts of some six other proceedings or hearings in which Eckert had testified. They're listed in the brief. And as to Mason he had an addition to the 1955 transcript, transcript of his testimony in an NLRB hearing. Now, we usually need something that we don't have. And in this case, he did have transcripts of the testimony at the first trial of Eckert and Mason. Gardner did not testify at the first trial or in the 1954 grand jury. And the only inconsistencies that he showed were of this nature. He'd asked Eckert, “You testified in the Gold case in the District of Columbia, did you not?” “Yes.” “Did you tell about this 1948 meeting where the Communist policy on not signing Taft-Hartley affidavits was set?” “In your transcript -- in the transcript of the testimony -- your testimony in the Gold case, you did not mention that James Durkin was at that meeting, did you?” “No, I didn't.” “Why didn't you?” “Well, I just didn't happen to think of him at that time.” Now, he -- there are a large number of such so-called inconsistencies; none of them, however, relate to Travis. There was no pointing out that did he had ever testified in any other hearing or proceeding that Travis was not at a meeting to which he was -- he testified in this trial. There was no testimony that he ever omitted Travis' name. Most of these meetings were of a sizable number of people and in a number of cases, Eckert said something like there were a large number of people there and a number of people that, then he listed name and that's all I can remember. In no instance I think, was he -- where the cross-examiner able to show that he had -- Eckert had previously said that Durkin, for example, was not at a particular meeting when he -- and said later on that he was. It was just a matter of omission or is not of a matter of contradiction. As I have just been pointing out full cross-examination of the plaintiff's -- of the plaintiff's witnesses. The defense had a large amount of material even without any grand jury minutes. Now, there was -- Mr. Taylor made a remark about the trial court said that you have to show some rather definite -- I'm quoting, "certain likelihood of material contradiction to get the grand jury minutes." And that that is not in accordance of what this Court said in Palermo. He did not mention, however, that at the trial, the defense counsel said, "I agree with the Court." Also, defense counsel suggested that the burden on the Court of examining all these minutes would be too great. And we think that the district judge was not unreasonable in refusing to examine the testimony of these witnesses in maybe six or eight other grand jury hearings. When the defense had a large number of transcripts available to it and when there was no showing of real need, we think it's a matter of discretion and the trial court had a difficult time with all of motions that were filed. As the case in the Second Circuit, as we read and they do not hold, there is no discretion. I mean in -- even while they're going to look at it or not. In the Zborowski case, the Court examined the record and the evidence in detail. They discovered reasons why the trial court should have examined the record and it found them. In the McKeever (ph) case, it said there had to be some reason for supposing that there is inconsistency between the trial testimony and the grand jury testimony. In fact, I'm not at all sure what the Second Circuit rule is because I think you will find that the trial judge, who was reversing the Hernandez case to which Mr. Taylor referred, was the circuit judge who wrote the opinions in the Zborowski and McKeever case, so that apparently, the rule is not too clear even there.
Felix Frankfurter: The trial judge, in this case, did he profess the exercise of his question or did he find there is no basis calling upon -- called upon him to exercise the discretion, which was it?
George B. Searls: I would say it was the first Your Honor, but I can't refer you to page --
Felix Frankfurter: The he exercised the discretion?
George B. Searls: In fact I think that falls from the opportunities that were given to counsel to cross-examine about -- in whether they -- whether the witness had testified for a grand jury or not.
Felix Frankfurter: But -- but he exercised his discretion without looking at the grand jury minute, did he not?
George B. Searls: I think he could, Your Honor and I think --
Felix Frankfurter: No, no. In fact he -- he didn't look at it. He didn't say, let me have the minute now and take a look at him and see if there's any basis for the motion.
George B. Searls: No, sir.
Felix Frankfurter: But on the basis of the arguments of counsel and the testimony to which he had listed you say, he found no papers for calling for the minute. What was that on the ground that no basis for contradiction has been laid or --
George B. Searls: No, I think he took into account all these factors that I've mentioned, Your Honor. Of course, when we got there and must remember that there are three minutes -- I mean, three witnesses in three different sets of grand jury minutes that were being called for, and what I have said my not necessarily come out with the same corroboration in each instance. Now, a related part of the argument is that whether the trial judge committed error in its rulings on Section 3500 of Title 18. Now, I say that's related, because you will find through the record that the cross-examination of witnesses on whether they had testified before grand juries or not, it's intermixed with the examination of witnesses as to whether they had given statements to agents of the Government. There's one instance -- I think it's page 6 -- I think it's referred to in the defendant's brief in one -- no, if I may -- may go back for a minute to the grand jury, defendant's brief, I think, cites the record of 686, 687 for the authority that the trial judge improperly sustained objections to examination of witnesses about grand jury testimony. If you turn over to the next page, on page 688, you find the witness was permitted to be asked and answered a question as to whether he testified before the 1954 grand jury or the 1958 -- 1956 grand jury. Now on 3500, there has been some criticism of the trial court on the ground that by telling the Government that he was going to take whatever they turned over as being admitted to be a statement. That he discouraged the Government possibly from producing at least for examination, other documents that they might have produced. Well, its urge for production in all instances wherein the language of the statute, they say, "You produce documents required -- statements comes in 3500." And the remark about you're having admitted to these statements, was when the United States attorney after having submitted a large number of documents in chambers one day later, was trying to back out of it and say, "I think we have given you some things that aren't really statements within the statute." And apparently they have, but the trial judge said, "No, you've handed them over and I haven't looked at them, the next item, and I'm not going back over that again." Now, furthermore, the trial judge permitted extensive cross-examination of witnesses as to whether you had given -- whether they had given statements, whether notes were taken, whether transcripts were made to various government attorneys, to the NLRB, to the McCarran Committee and the Court denied the motions for additional production, not because he thought that, although he may have, that a Senate committee couldn't be forced to hand over any statement. Or not because, he thought the attorney for the Government in say the Jencks case in Texas couldn't be forced to hand over a statement, but he denied the motion for the simple reason that he just felt they are not made out a factual case of any additional statements having been made. And the United States attorney stated categorically on more than one occasion and he produced everything he had and everything he knew about it. Mr. Taylor did not mention in his argument the Court portion of the argument in the brief on the use of uncorroborated admissions. I'd like to add to what we've said in the brief, this case I reread recently, the case of Bram against the United States in 168 U.S. A decision by I think was then Justice White. In which he goes into the reasons for the rule, and he pointed out that Bram, at that time of the statement which he gave was -- which was used against him, was in a position where he was naturally anxious, he was naturally afraid. He was anxious to win favor. He was then in a position where he might think to own up would be a material help to him. As Justice Fuller put in one place, he was not a free agent. Now in these cases, all these statements that witnesses testified to that Gardner made, Gardner was certainly -- I mean, Travis made. Travis was certainly a free agent. He was an official in the union. He was travelling around. He was giving orders. He had no reason to be afraid of these people to whom he was talking. He wasn't trying to curry favor with them. We think that just as was the -- to it in this rule, so-called perjury rule, that the trial court ruled correctly in this case. Now, I would like to take up very briefly the motions for a new trial, there were two. Neither was based -- both related to Gardner, neither was based on anything Gardner said in the Travis case. Both relating to matters he had said in the West trial which is going on in Cleveland, normal simultaneously with the Travis trial in Denver. Defendant's reply brief makes a some -- the false testimony which it supposed to have given in Denver, consisted in the main of two statements. One, he was asked on cross-examination, “You were never in the armed forces were you?” And he said, “No, sir.” And the cross-examiner dropped it and went on to another subject. It is true as it turned out later on after both trials that Gardner had been unknown to anybody in the U.S. Attorney's office or in the department that was working on either of these cases. He had been in the army for a period between 1922 and 1926 and had deserted in 1926. Now, in the West case, the trial judge held a three and a half day hearing. Gardner went back on the stand, various attorneys testified, FBI agents testified. And the trial judge wrote a somewhat lengthy opinion which is in 170 Federal Supplement, in which he found first Gardner had not committed perjury. In second place, that he thought that the question about his military service on the stand, related to World War II and that he had reason to think so. And he concluded that Gardner had not been convicted on -- that the defendants in that case had not been convicted on false testimony. Now, the petitioner brings up the fact that in an FBI report in 1955 after Gardner had, I think, been expelled from the Communist Party, the occurrence is this, this is a sort of biographical statement. It's not written by Gardner, it's into sort of tabular form. It's on file in this Court in the cases brought by West and Haupt which are, I think, No. 93 and -- No. 73 and No. 74 miscellaneous. This term, as to -- it says, under military service, there's the word, "None." Now we don't know what questions the agent asked Gardner. We don't know what answers Gardner gave. This is a report.
Potter Stewart: What kind of a report?
George B. Searls: FBI report sir --
Potter Stewart: Just a --
George B. Searls: -- of an investigation.
Potter Stewart: I see.
George B. Searls: I gather, this was the initial report on Gardner and I suppose when they contact the witness for the first time, they got a good deal of biographical data. It's in -- begins at page 1270 of the second volume of the joint appendix in the Haupt case which is I think on file in this case. Furthermore, not only did the defendant have this -- that report, a copy of that report at the trial of this case, but a copy was also put in at the hearing on a motion for new trial in the West case. And when the judge found that Gardner had not testified falsely, he took into consideration that he must have taken into consideration the FBI report as well as the other evidence. Now, the second matter is that Gardner told different stories about his marital history. What turns out at the different stories -- the differences were related to two things, one, the date of his divorce from his first wife; and second, the date of his marriage to the second wife. Now, he wasn't asked to produce any copy of a decree. In fact, I think he testified in the West case, he wasn't sure he had one, although he was sure he'd been divorced. And while there's a statement in the record -- this is in No. 3, the record in No. 3 by a United States attorney somewhere, there was a decree in 1946. I don't think -- it doesn't appear what kind of a decree it was or whether it was a final decree or an interrogatory decree or what. Now, the other thing that Gardner is supposed to have misrepresented is the date of his second marriage.W ell, that was a common law marriage? I don't know of what the effective date of a common law marriage. Gardner didn't know. He and his wife talked it over and finally came up with the notion, they'd been married in November 1945, but I don't suppose the man really knows to this day whether he was actually married on that date or not, unless his engaged expert opinion. It also seems to us that both these things are so inconsequential. So, not -- I'm not putting it on grounds so much that they're irrelevant to the issue of the case, but even -- that the jury even if it had known of them, even if they'd been brought out at the trial, it wouldn't have taken any different result. Are we going to disbelieve a man because he deserted from the army in 1926, disbelieve him on the stand in 1958? Are we going to disbelieve him because he hasn't been able to get straight dates of his marital history under the circumstances I have described? I don't think that it would affect the jury one way or another. And certainly, the trial judge who -- decided at the trial, was in a better to judge than I am here. It just doesn't seem to us that that kind of evidence could make the showing that is necessary to grant a motion for a new trial. I might also point out that during the trial, counsel had in his possession a transcript, a daily transcript of Gardner's testimony in the West case in which some of these inconsistencies as to his marital history appear, but he didn't knew that. It was not -- it also appears that counsel had, at that time, a copy of the FBI report I've mentioned, because it's referred to in the record in No. 3 as defendant's Exhibit J for identification. So I take it that it was not introduced in evidence, but it was present. That is all Your Honor, unless the Court has some further questions.
Earl Warren: Thank you. Thank you, Mr. Searls. General Taylor.
Telford Taylor: I thought it might be helpful for me to try to clear the matter of where these prosecutions have been brought before as a matter of practice, which I think both the Chief Justice and Mr. Justice Harlan asked about. Mr. Chief Justice, I did not mean to say and I don't think I said that all but two of these cases have been brought in Washington. What I think, I said and meant to say was that all but two of these cases have been brought where the affidavit was filed, not where it was made.
Earl Warren: I -- I misunderstood you, that's all.
Telford Taylor: Now, that of course means in the case of the national officers would be Washington, but in the case of the local officers, it would be different. If a national officer lives in Washington, obviously mailing and filing are in the same district. Similarly, if he lives in the same place where the regional office is, a local officer will have no venue problem. Both will be in the same district, but the two examples I gave were one from each. The Ben Gold case was a case to a national officer and was brought here in Washington. The Jencks case, I averted to, which was a local officer case, but the West is wide and the distances between the place of mailing and the place of filing was all the way from New Mexico to El Paso. The prosecution was in El Paso, where the regional office was located and where the affidavit was filed. The affidavit was in fact mailed from New Mexico, silver mine or somewhere like that, where he had his union headquarters just as here. Now, my statement was right I think that putting all of these together, that the only other case where the prosecution has been brought at the place of mailing is the Valenti case where the Third Circuit came with the other conclusion. There is one other case that is -- that is rather more complicated. There had been three national officer cases, this one, the Ben Gold case and the Bryson case. The Bryson case was marine cooks and stewards and was a union officer -- national union officer who lived on the west coast. He was first indicted on the west coast where the affidavit was mailed, but as soon as he challenged venue in the west coast, the Government withdrew the indictment representing to the court that there was doubt about there being venue in California and therefore, they would withdraw the indictment in California and bring the case here in the district, and they did that. And Bryson was then indicted here in the district where his affidavit was filed, he being a national officer. Bryson then said, "It's a hardship for me to be tried in Washington. Please send the case back to California." And Judge Morris sitting here in the District Court did. So he was tried in California on a Washington indictment. When he got back to California again, the District Court there said, well, we don't think we have venue and we don't think the case should be sent back out here, but he has waived his objection to this by asking for it to come. So that was the long history on the -- on the Bryson thing.
Felix Frankfurter: Well, then it's the lock that we have on the -- had only three indictments of national officers.
Telford Taylor: That's correct. As far as I know, they've been three of national officers.
Felix Frankfurter: So that it could have been drawn any kind of inference or practice so far as that is relevant.
Telford Taylor: Yes, because the local cases, if you have a difference between place of mailing and place of filing present, the same problem, as in the case Jencks.
Felix Frankfurter: How many of those have there been?
Telford Taylor: Pardon me.
Felix Frankfurter: How many of those there have been?
Telford Taylor: There has been Sells, Fisher, Hoffman, Killian, Jencks, Valenti, I'm sorry, I haven't made a complete list, but there have been quite a number.
Potter Stewart: Well, how many of it kind that you mentioned where the -- the place of residence or the place of mailing, the place filing were in different traditional district?
Telford Taylor: It was different in Valenti and it was different in Jencks. Now, I would have to check. Oh, I beg your pardon. I'm reminded, the Killian case also which is now pending here on petition, is similar and that there he was tried in Chicago, where filed and not in Milwaukee where he lived, different district there too. Perhaps, these others presented no problem because the office may have been in the same district.
Potter Stewart: (Inaudible)
Felix Frankfurter: This isn't a case where for (Inaudible) a lengthy period --
Telford Taylor: Oh, it isn't a long sustained practice like that Mr. Justice Frankfurter, but it is nonetheless, a fact that the only other case where they have gone on the filing basis is Valenti, as far as I know.
Felix Frankfurter: And -- and well that might be as was the suggestion that I made to you as an old prosecutor (Inaudible)
Telford Taylor: There is no doubt.
Felix Frankfurter: (Voice Overlap) the indictment presented to a more convenient place in favor of the defendant.
Telford Taylor: There is not doubt that the defendant may try to play between jurisdictions just as the Government may and take advantage of both is a devise in counsel did there. However, the views of the California courts in this thing were that there was no venue out there and the only reason they would entertain it when it came back, was on the theory that he waived it.
Felix Frankfurter: Waiver and stopple of an easy resort to lack of analysis.
Telford Taylor: There is no question however that he had lack -- that he had endeavored to get back out there, so that it -- it does seem to me it can be -- so that he had waived it. If the Court will indulge me another minute or two, I can, I believe, complete on this and I wanted to say another word about the grand jury thing chiefly because of the references to different grand juries here. For the most part, the request for grand jury minutes related to the minutes of the grand jury that indicted Travis in this case. But there was one other grand jury importantly involved and one other peripherally involved. The witness Gardner, one of these three, had not testified in the first trial or before the grand jury that indicted Travis in this case. He had testified in the same court before the grand jury that indicted Travis and 13 others for conspiracy to file false affidavits. And so in the case of Gardner, these requests ran to that jury which was in the same court, in the same district and same defendant involved and not the one that indicted him in this case. Now, we point -- we discussed this circumstance in the brief and point out that this might have been a reason for examining the testimony in camera, to see if it related to matters involved in the other case and not in this case and exclude irrelevancies. But there the court expressly said that he was not denying the motion for grand jury minutes because it was other juries, that wasn't the point with him at all. Mr. Justice Frankfurter, he said, the best place to look for his reason --
Felix Frankfurter: Where --
Telford Taylor: -- Your Honor, is and as to the your question, was this around page 492 and 494 of the record, where you will see that he says in substance that responses to request for grand jury testimony have rarely been granted. He seemed to me to exhibit the feeling that as a matter of law, this wasn't the right thing to do and that he never had any feeling that he really got to balance the equities and see whether it be a good or bad idea.
Felix Frankfurter: But he -- he didn't do -- what Judge Learned Hand as you well know, did until he retired, never allow.
Telford Taylor: Never what?
Felix Frankfurter: He never allowed inspection of the grand jury. During your days --
Telford Taylor: Oh this --
Felix Frankfurter: What?
Telford Taylor: -- this judge didn't to it ever either, as far as I know.
Felix Frankfurter: But I don't -- but he didn't profess the -- Judge Hand made no boast about it, as you well know.
Telford Taylor: Yes. Well, Judge now obviously took a very dim view of the whole idea of ever looking at grand jury minutes, and therefore, I think his discretion, if exercised at all, was restrained by the notion that this wasn't really a sound idea. Thank you, Mr. Chief Justice.