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May 2, 1953


The opinion of the court was delivered by: YOUNGDAHL

Defendant filed ten motions. *fn1" Exhaustive written briefs were served and filed in connection therewith. On March 31 and April 1, 1953, oral arguments were heard on the motions for change of venue, for continuance and to dismiss the indictment and the various counts thereof. Arguments on the other motions were deferred pending determination of the motions herewith presented.

 For an understanding of the charges against defendant and how they arose some background is necessary. Defendant, by many people, has been considered an expert in Far Eastern Affairs and a student of the problems of that part of the world. By others, he has been considered a Communist or fellow traveler. From 1934 to 1941, defendant was editor of the magazine, 'Pacific Affairs'. *fn2" For a time he was associated with the Office of War Information and the Pauley Reparations Commission. *fn3"

 Charges against defendant were first investigated by a Subcommittee of the Senate known as the Tydings Committee. This Committee concluded there was no foundation to the charges against him. *fn4" Subsequently, in November, 1950, the Senate Judiciary Committee by Senate Resolution 366 (81st Congress, 2nd Session), was itself, or by means of a subcommittee, authorized to make an investigation and study of the Internal Security Act of 1950, 50 U.S.C.A. § 781 et seq., 'the administration, operation and enforcement of other laws relating to espionage, sabotage and the protection of internal security of the United States' and 'effects of subversive activities in the United States.'

 Upon being summoned by the Committee to appear before it in executive session, defendant was questioned concerning his past life and, more particularly, his association with the Institute of Pacific Relations and as editor of its magazine, 'Pacific Affairs'. *fn5" In July, 1951, the Committee conducted open hearings and questioned other witnesses. These hearings terminated in February, 1952. On February 26, 1952, defendant was permitted to testify before the Committee and made his statement a part of the record. *fn6" In the course of making his statement, defendant was questioned further. This portion of the hearings lasted thirteen days. It is apparent from the record of the hearings and the indictment that the Committee was interested, from its study of the records of the Institute of Pacific Relations, in finding out the extent to which the Institute of Pacific Relations may have been infiltrated or controlled by Communists or those connected with the Communist movement and what influence the Institute of Pacific Relations may have had on the foreign policy of the United States of America. In his testimony, defendant denied being a Communist, a member of the Communist Party, a Soviet spy or a fellow traveler. *fn7"

 Apparently the Committee could discover no evidence from its investigation or the testimony of the various witnesses that defendant lied in denying that he was a Communist, a member of the Communist Party, a Soviet spy or a fellow traveler. This case therefore is unlike U. S. v. Remington, 2 Cir., 191 F.2d 246, where defendant was charged with perjury in denying that he was a member of the Communist Party, and U. S. v. Hiss, 2 Cir., 185 F.2d 822, where defendant was charged with lying in denying that he turned over to certain people important security documents.

 In the indictment under consideration defendant is not charged with lying in denying that he was a Communist or a member of the Communist Party. The indictment here charges defendant with committing perjury as to his sympathies with Communism or Communist interests (count one); whether he had been told or knew certain persons were Communists (counts two and three); whether he had published certain articles in 'Pacific Affairs' by Communists (count four); whether he had a luncheon engagement with Soviet Ambassador Oumansky in July, 1941 after the Hitler invasion (count five); that he did not at the request of Lauchlin Currie take care of his mail at the White House (count six); and whether he had made prearrangements with the Communist Party to get into Yenan (count seven).

 It appears from the record and the hearings of the Committee that the charges reflected in the seven counts in the indictment related to a period of fifteen to twenty years before the hearings. With this factual background we will proceed to a consideration of the several motions presented to the Court.


 Change of Venue.

 Although defendant requested the privilege of making the motions for a change of venue and continuance at a later date, the court ordered that the motions be argued at the hearing of the motions attacking the indictment. However, the motion to inspect the grand jury minutes, and the motions for production of documents and discovery were deferred to a date to be subsequently set by the Court should a hearing of these motions be deemed necessary by defendant.

 A sufficient showing has not been made to justify a change of venue. Title 18, U.S.C.A., Federal Rules of Criminal Procedure, Rule 21(a) provides that a change of venue shall be granted:

 '* * * if the court is satisfied that there exists in the district or division where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that district or division.'

 Charges against this defendant have received nation-wide publicity. Much has been written about this case pro and con since its inception. There is no indication or proof that defendant cannot have as fair and impartial trial here as in any other Federal Judicial District. This Court is not satisfied that 'there exists in this district so great a prejudice against the defendant that he cannot obtain a fair and impartial trial.' The motion for a change of venue is therefore denied. Dennis v. U.S., 84 App.D.C. 31, 171 F.2d 986; U.S. v. Eisler, D.C., 75 F.Supp. 634.


 Motion for Continuance.

 Therefore, although there is no justification for a continuance on the theory of the Delaney case, the Court feels that a reasonable continuance should be granted because of the amount of work that will be required in preparation for this case both by defendant and the Government. In fact, the Government made no objection to a continuance to early fall.

 A number of additional motions are still to be argued and disposed of. The Court will require that all remaining motions be argued prior to June 1st and the case will be set down for trial on October 6, 1953. It is the Court's conclusion that the case should be tried at that time and that no further continuance should be granted.


 Motion to Dismiss Indictment.

 The first ground upon which defendant relies to sustain his position as to the invalidity of the indictment is that it does not allege the name of the person who administered the oath to defendant. Defendant concedes that this is a technical point and voices the hope that the indictment be stricken down on the merits rather than on this technicality. *fn9" Since the argument on the motions, defendant's position on this point has been fortified by the recent decision of the Fifth Circuit, U.S. v. Debrow, 5 Cir., 203 F.2d 699, where the Court in a two to one decision struck down an indictment which failed to set forth the name of the Senator who administered the oath to certain defendants charged with perjury before a Committee of the Senate.

 However, the purpose of the new Federal Rules of Criminal Procedure was 'to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.' *fn12" Furthermore Rule 52(a) provides that 'Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.' Though this Court is not bound by the decision of the Fifth Circuit, *fn13" it nevertheless has carefully studied this opinion because of the deference that should be accorded a decision of any Court of Appeals. However, it seems to this Court that the dissent of Judge Rives has much more persuasive quality than the majority opinion. As Judge Rives points out the 'holding is extremely technical and is contrary to the letter and spirit of the pertinent Federal Rules of Criminal Procedure.' The dissenting Judge further aptly states that if this holding is to obtain 'we are still enmeshed in the technicalities of common law pleading, and the new rules have failed of their purpose.'

 On April 29, 1953, in U.S. v. Young, 113 F.Supp. 20, United States District Court for the District of Columbia, Judge McGuire of our Court had occasion to decide this precise point. Judge McGuire in an excellently written opinion refused to follow the majority in the Debrow case, and for substantially the same reasons stated herein, held that an indictment was not fatally defective which did not set forth the name of the Senator who administered the oath.

 The indictment here alleges the defendant was duly sworn before a competent tribunal in a matter in which an oath was authorized. Whether defendant was sworn or not and by whom is a matter of proof that may be readily determined at the proper time. It is held therefore the indictment in this case is not invalid because of the failure to allege the name of the Senator administering the oath.

 Defendant also contends that the indictment is invalid in its entirety because the questions and answers upon which the charges are based are immaterial as a matter of law. Defendant vigorously argues that all the charges relate to ancient history and cannot possibly have any relevancy to the authorization under which the Committee was making its investigation. In support of its position defendant relies strongly upon Bowers v. U.S., D.C.Cir., 202 F.2d 447.

 Aside from the reasons of invalidity as to certain counts as hereinafter expressed, there is serious doubt in the Court's mind whether any count in this indictment can finally pass the test of materiality. But the Court does not agree with the interpretation placed upon the Bowers case by defendant that it is necessary to plead in the indictment the particulars of materiality. The question of materiality like the question of pertinency is a question of law for the Court to decide when the Government's evidence is in or at the conclusion of all the testimony. Such is the holding in the Bowers case. *fn14"

 As the Court of Appeals there stated:

 Also squarely in point is the Meyers case in this jurisdiction. *fn15" The Court there said:

 'Under the old system of criminal pleading it was customary to set forth in detail in a perjury indictment how and why the particular question addressed to the witness was material. * * * Assuming, without deciding, that at common law such allegations were essential, the view of this Court is that such averments are no longer required under the new Federal Rules of Criminal Procedure. All that is indispensable now is a plain, concise and definite written statement of the essential facts that constitute the offense charged. There is an allegation in the indictment that the testimony sought to be elicited from the defendant was material to the inquiry. Whether it was is a matter of proof, and, of course, at the trial it will be necessary for the Government to establish the materiality of the subject matter. It is the view of this Court that under the new rules, a general allegation of materiality is sufficient in an indictment for perjury or subornation of perjury.' 75 F.Supp. at page 488.

 The Court holds therefore that the issue of materiality is sufficiently set forth in the indictment.

 Because the Court has concluded that it is not now in a position to dismiss the entire indictment, the motion to dismiss the indictment in its entirety must be overruled. However, in the Court's opinion certain counts in the indictment are fatally defective and the several counts will now be considered separately. In order to determine the validity of the several counts it is necessary at the outset to consider the scope and character of the Resolution of the Congress authorizing the investigation out of which the perjury charges arose. The pertinent part of the resolution reads:

 'Resolved, That the Committee on the Judiciary, or any duly authorized subcommittee thereof, is authorized and directed to make a complete and continuing study and investigation of (1) the administration, operation and enforcement of the Internal Security Act of 1950; (2) the administration, operation, and enforcement of other laws relating to espionage, sabotage, and the protection of the internal security of the United States; and (3) the extent, nature, and effects of subversive activities in the United States, its Territories and possessions, including, but not limited to, espionage, sabotage, and infiltration by persons who are or may be under the domination of the foreign government or organizations controlling the world Communist movement or any other movement seeking to overthrow the Government of the United States by force and violence.'

 The Supreme Court of the United States has recently recognized 'the penetrating and persuasive scope of the investigative power of Congress.' In the Rumely case *fn16" Justice Frankfurter quoted Woodrow Wilson to illustrate 'The reach that may be claimed for that power' as follows:

 However, the Court points out that there are limitations to that power imposed by the Constitution such as, for example, in the First Amendment. *fn17" Similarly the Court of Appeals in the Bowers case recognizes the broad powers of Congress. It properly points out that 'the questioning of witnesses customarily, and probably necessarily, takes a wide range. Committees may and do obtain vague information and receive hearsay evidence from which they form well-grounded suspicions that evils exist at which legislation should be aimed. That is to say, committees' conclusions that corrective legislation should be enacted need not be reached on the basis of relevant and pertinent evidence only.' (202 F.Supp. 448.) It is significant that the Court goes on to point out that 'The precision of court procedure is not required. It may often be proper, justifiable and ultimately helpful in the accomplishment of its investigative purposes for a Congressional committee to address to witnesses questions which it cannot demonstrate to be pertinent. But in branding a refusal to answer as a misdemeanor, Congress was careful to provide that the question must be 'pertinent to the question under inquiry." So in a perjury case arising out of a Congressional investigation, which concededly may be broad in its scope as far as determining the necessity for corrective legislation is concerned, the element of materiality must be present or the charges fall.

 Count One

 Having in mind the necessity of weighing the balance between the broad power of Congress to investigate and the protections afforded individuals by the Bill of Rights, as pointed out in Douds, and applying the rule to the indictment here, the Court is convinced that the first count is fatally defective. Under this count the defendant is charged with lying in denying that he had never been a sympathizer or promoter of Communism or Communist interests. It is based on a statement made by defendant to the Committee. *fn18"

 First, this count is violative of the Sixth Amendment which protects the accused in the right to be informed of the nature and cause of the accusation against him. *fn19" The test has been laid down in Sutton v. U.S., 5 Cir., 157 F.2d 661, where the Court held that the meaning of the Sixth Amendment was that the defendant:

 '* * * be so fully and clearly informed of the charge against him as not only to enable him to prepare his defense and not be taken by surprise at the trial, but also that the information as to the alleged offense shall be so definite and certain that he may be protected by a plea of former jeopardy against another prosecution for the same offense.' 157 F.2d at page 663.

 Moreover this count does not meet the requirements of Rule 7(c) of the Federal Rules of Criminal Procedure which requires that the indictment 'shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.' *fn20"

 Defendant in the first count is charged with lying in denying that he was a sympathizer or promoter of Communist interests. It seems to the Court that this charge is so nebulous and indefinite that a jury would have to indulge in speculation in order to arrive at a verdict. Sympathies and beliefs and what they mean to different individuals involve concepts that are highly nebulous and speculative at best. I presume a person could sympathize with a belief and yet still not believe. To probe the mind in a situation like this would give rise to nothing more than sheer speculation on the part of the prober. It is fundamental that a jury should not be asked to determine an issue which can be decided only on conjecture. It is clear to the Court therefore that the first count fails to meet the test of definiteness required by the Sixth Amendment and Rule 7(c) of the Federal Rules of Criminal Procedure.

 But there is another reason why count one is fatally defective. It is in conflict with the First Amendment. *fn21" It restricts the freedom of belief and expression which the Court in the Rumely case clearly points out is a limitation upon Congressional inquiry. In support of this count the Government cites the Barsky and Lawson cases in our Court of Appeals. *fn22"

 In Barsky the appellant was indicted and convicted for willful failure to produce records (of the joint Anti-Fascist Refugee Committee relating to the receipt and disbursement of funds and correspondence with persons in foreign countries) before the House Committee on Un-American Activities. House of Representatives Resolution No. 5, 79th Congress, authorized the Committee to investigate the:

 '* * * diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution.'

 The appellant contended the questions asked in response to the subpoena and the answers might reveal that he was a believer in Communism or a member of the Communist Party. The Court of Appeals held that the Committee was authorized to make the investigation, that the ...

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