The opinion of the court was delivered by: KEECH
Under an indictment returned in this jurisdiction on January 17, 1947, the defendant is charged in eleven counts with violations of 18 U.S.C.A. § 80.
It appears from the record now before the Court that defendant was employed on and after March 7, 1942, on a temporary and conditional basis, subject to character and fitness investigation, by the Office of Coordinator of Information and its successor, Office of Strategic Services, and on September 20, 1945, was transferred to the Department of State.
In the first nine counts of the indictment it is charged that on separate occasions, to two different investigative authorities, defendant 'did wilfully, unlawfully and feloniously make a false and fraudulent statement and representation' to the effect that he was not a member of the Communist Party; that he had never attended any of its meetings, never contributed any services to the Communist Party, never participated in any of its activities, never made any speeches against conscription; and that he had never used or been known by the name of Tony Whales or any similar name.
The last two counts of the indictment cover similar offenses except that the false and fraudulent statements are alleged to have been made on June 1, 1946, when defendant was being interrogated by a State Department officer.
Briefly summarized, the points advanced in support of the motion are as follows:
(1) The agencies referred to in the several counts of the indictment (Federal Bureau of Investigation as to Counts I to IV, inclusive; Civil Service Commission as to Counts V to IX, inclusive; and the Department of State as to Counts X and XI) were without power or authority to make the inquiries as to which defendant is alleged to have made false statements.
(2) The questions propounded to the defendant were unauthorized, illegal, concerned his private, personal, political activities, and were without the jurisdiction of the agencies involved.
(3) The questions propounded to the defendant were not pertinent to the character and fitness investigation of the defendant as an employee of the United States Government.
(4) The questions asked of the defendant were not material or relevant to the character and fitness investigation.
(5) The alleged false statements did not serve to conceal any illegal or prohibited acts.
(6) The indictment fails to allege any specific intent on the part of defendant to defraud the government.
(7) The language of the statute (18 U.S.C.A. § 80), insofar as applicable to defendant under the circumstances, is so vague and indefinite as to be repugnant to the Fifth Amendment to the Constitution.
(8) The indictment violates the Fifth and Sixth Amendments to the Constitution as it fails to inform defendant of the nature and cause of the accusation.
(9) The indictment fails to state facts sufficient to constitute a crime.
(10) to (16), inclusive: The indictment violates the Fifth Amendment to the Constitution since it charges the same ...