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April 19, 1956

Aldo Lorenzo ICARDI

The opinion of the court was delivered by: KEECH

This court now has for determination whether the Government has proved that the questions which the indictment charges the defendant Icardi answered falsely were asked by 'a competent tribunal' and whether his answers related to a 'material matter.' These two facts are essential elements of the offense with which the defendant is here charged. Hence, although matters of law for determination by the court, they must be proved by the Government like any other essential element of the crime; and the court must grant defendant's motion to dismiss unless it finds the Government has proved them beyond a reasonable doubt.

At the outset, the court is faced with two basic principles of law: the presumption of the validity of governmental proceedings, and the presumption that the accused is innocent. Since the second presumption outweighs the first, the presumption of validity must be supported by proof of the validity of the legislative proceedings and materiality of the specific answers which defendant is alleged to have falsely given. Sinclair v. United States, 279 U.S. 263, 296, 49 S. Ct. 268, 73 L. Ed. 692.

 Considering in turn the questions of competency of the tribunal and materiality of the questions asked and answers thereto, what is the government's proof on each issue?

 Under H.Res. 5, 83rd Congress, Rule XI, Sec. 3, the Committee on Armed Services was given jurisdiction of '(a) The common defense generally,' and '(b) The Department of Defense generally, including the Departments of the Army, Navy, and Air Force generally,' as well as other matters not here pertinent. Under this broad authority, as supplemented by H.Res. 125, 83rd Congress, the Committee on Armed Services or a subcommittee thereof could legitimately investigate whether existing law adequately covered crimes against persons or property committed overseas by members of our armed forces, and whether the Defense Department was being efficiently administered, and to that end to compel testimony under oath.

 The fact that legislation touching on the general subject had already been enacted would not estop further investigation as to its adequacy or investigation as to the efficiency of the administration of the military establishment.

 Any conclusion which the committee or a subcommittee might reach on these questions would necessarily be founded upon an investigation of the facts of specific cases. The Chairman of the Armed Services Committee therefore had authority to appoint a special subcommittee to investigate a particular alleged offense, a segment of the whole picture, as an initial step toward reaching a valid legislative judgment.

 The special subcommittee described in the indictment was appointed during the 83rd Congress by the Chairman of the Armed Services Committee by letter of March 11, 1953, addressed to Congressmen Cole and Kilday (Govt. Exhibit 9), the pertinent portions of which read:

 '* * * I constitute you a Subcommittee to investigate the circumstances surrounding the disappearance and death of Maj. William V. Hollahan, (sic) while a member of the Armed Forces on assignment to the Office of Strategic Services in the Italian Campaign of 1944 * * *. You are authorized to take such further action in the matter as, in your opinion, the facts and legislative interest may require; and, if you shall be so advised, to render such report on your further investigation and studies as will, in your opinion, be useful and informative to the Congress.'

 This subcommittee, as shown by the letter and testimony before the court, was appointed to continue the work of and 82nd Congress subcommittee appointed for the same purpose, of which Congressmen Cole and Kilday had been members. The predecessor committee had conducted hearings on December 19, 1951, and January 9 and 10, 1952, at which, according to the transcript of proceedings, the oral testimony received was that of Michael Stern, an employee of Fawcett Publications and foreign correspondent of True magazine, and Henry L. Manfredi, a Treasury Department employee formerly connected with the Army as a Chief Agent of the Criminal Investigation Division. The subcommittee had also received statements of certain persons in Italy and of another member of Major Holohan's OSS team, Carl LoDolce, Which fixed responsibility for Major Holohan's death on Icardi and upon which the hearsay testimony of Stern and Manfredi was apparently based in large part. As to the three alleged eye-witnesses to what occurred at the Villa Castelnuovo on the night of December 6, 1944, each of them could have had good reason to cast responsibility for a brutal murder on some one other than himself, and the Italian affidavits were all obtained in a political climate such as the United States has never known. The committee also had other information from the files of the OSS and CID, including Icardi's own statements during the investigation by military authorities of Major Holohan's disappearance, as well as Icardi's statements before the Pennsylvania Board of Law Examiners, on the radio, and before other organizations with respect to the charges against him.

 No further hearings were held by the subcommittee between January 10, 1952, and March 26, 1953. Congressman Cole testified before this court that the delay was because the committee was awaiting the outcome of other proceedings, namely, proceedings looking toward prosecution in Italy of Icardi and LoDolce.

 On March 19, 1953, the subcommittee addressed a letter to Icardi reading in part:

 'The subcommittee desire to have from you any evidence -- competent, relevant, or material -- relating to this subject (the circumstances surrounding the death, on or about December 6, 1944, of Maj. William V. Holohan, AUS) which you may have and may desire to offer. Your evidence * * * will be received by the subcommittee on Thursday, March 26, 1953, at 2 o'clock in the afternoon, in the Armed Services Committee room, No. 313, Old House Office Building, Washington, D.C.

 'If you do not appear, the subcommittee must assume that it is in possession of all evidence required to form its opinion and report, for the information of the Congress.'

 On March 26, 1953, Icardi appeared pursuant to the letter. Before Icardi was questioned, the chairman of the subcommittee warned him that anything he said might be used against him in a 'future proceeding or tribunal.' The subcommittee counsel informed Icardi that the subcommittee was in ...

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