Abe Fortas

“ It is the entire conspiracy, and not merely the filing of false affidavits, which is the gravamen of the charge. This conspiratorial program included, as prime factors, not only those who themselves filed the false statements, but others who were equally interested in the conspiratorial purpose and who were directly and culpably involved in the alleged scheme. The Government sought to fasten culpability upon all of the conspirators. The indictment properly charges a conspiracy, and with the required specificity alleges the culpable role of each of the petitioners. ”

“ While this practice may be useful in enabling the trial court to rule on a defense motion for production to it of grand jury testimony-and we do not disapprove it for that purpose-it by no means disposes of the matter. Trial judges ought not to be burdened with the task or the responsibility of examining sometimes voluminous grand jury testimony in order to ascertain inconsistencies with trial testimony. ”

“ Since the omission to require production of Mason's grand jury testimony with a view to impeachment can no longer be remedied, his trial testimony, under our holding herein, is no longer available to the Government in the event petitioners are retried.↑ Because there had been no request for in camera judicial inspection of the grand jury minutes, the Court in Pittsburgh Plate Glass did not pass upon the adequacy of that technique for protecting a defendant's interests. ”

“ Bridges is not in point. The decision there did not turn upon construction of § 371. The question before the Court was whether a prosecution, otherwise time-barred, could be revived by reference to the Wartime Suspension of Limitations Act, 18 U.S.C. § 3287 (1964 ed.) . The Suspension Act applies to 'any offense * * * involving fraud or attempted fraud against the United States or any agency thereof * * *.' The indictment in Bridges charged both the filing of false statements and a conspiracy to defraud, in order to obtain a certificate of naturalization. ”

“ United States, supra, the Court sustained a trial court's refusal to order disclosure of a witness' grand jury testimony where the defense made no showing of need, but insisted upon production of the minutes as a matter of right, and where there was 'overwhelming' proof of the offense charged without reference to the witness' trial testimony. ”

“ Each is alleged to have filed false non-Communist affidavits. Petitioners Sanderson and Skinner were, at relevant times, union members but not officers. They are charged with participation in the conspiracy. All were alleged to be 'members of and affiliated with the Communist Party.'
The indictment was returned in 1956. At the first trial, petitioners and others were convicted. On appeal, the Court of Appeals for the Tenth Circuit sustained the validity of the indictment, but reversed the judgments on the ground that prejudicial hearsay evidence had been admitted in evidence. ”

“ Where the question of guilt or innocence may turn on exactly what was said, the defense is clearly entitled to all relevant aid which is reasonably available to ascertain the precise substance of the statements. ”

“ This is a prosecution directed at petitioners' fraud. It is not an action to enforce the statute claimed to be unconstitutional.
It is argued in dissent, see pp. 876-880, post, that we cannot avoid passing upon petitioners' constitutional claim because it bears upon whether they may be charged with defrauding the Government of a 'lawful function.' At the time of some of the allegedly fraudulent acts of the conspirators, this Court's decision in Douds had been handed down. ”

“ Petitioners argue, however, that their conduct cannot be considered as fraudulent for purposes of § 371 because the Labor Board is required to certify the compliance of any union whose officers have filed non-Communist affidavits-without regard to the veracity thereof. ”

“ Cf. Glasser v. United States, 315 U.S. 60, 66-67, 62 S.Ct. 457, 463-464, 86 L.Ed. 680; United States v. Manton, 107 F.2d 834, 839 (C.A.2d Cir. 1939) cert. denied, 309 U.S. 664, 60 S.Ct. 590, 84 L.Ed. 1012. ”