Gold v. United States

PETITIONER:Gold
RESPONDENT:United States
LOCATION:Kingsley Books, Inc.

DOCKET NO.: 137
DECIDED BY: Warren Court (1956-1957)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 352 US 985 (1957)
ARGUED: Jan 22, 1957 / Jan 23, 1957
DECIDED: Jan 28, 1957

Facts of the case

Question

  • Oral Argument – January 22, 1957
  • Audio Transcription for Oral Argument – January 22, 1957 in Gold v. United States

    Audio Transcription for Oral Argument – January 23, 1957 in Gold v. United States

    Earl Warren:

    Number 137, Ben Gold, Petitioner, versus the United States of America.

    Mr. Lowther, you may proceed.

    Joseph A. Lowther:

    Mr. Chief Justice and may it please the Court.

    I should like to amplify briefly upon my answer to the Chief Justice’s question at the close of yesterday’s hearing.

    The Chief Justice asked — assume that in a — an instance, in a hypothetical instance, it was shown that intentionally and knowingly, a representative of the Federal Bureau of Investigation was sent to investigate sitting jurors but that — and that, rather, on a hearing conducted after the fact had become known, the reaction of those jurors as inquired into by the trial court was the same as the reaction of the jurors in the case before the Court, the Gold case.

    And my — and the Chief Justice’s inquiry was, “Would that necessitate a mistrial or a new trial if the mistrial had been denied?”

    And my answer was, it would have.

    As I view it, the question then evolves, why would it, in that instance, if the reaction of the jurors weren’t the same?

    And my answer to that, Mr. Chief Justice, and members of the Court, is this.

    That if it were shown in a hypothetical instance that the Government itself was guilty of misconduct which it undoubtedly would have been where it to send the FBI to investigate jurors, that incident in and of itself, apart from the reaction of the jurors, whether they were the same as in the Gold case, would be sufficient to use a phrase to shock the conscience of the trial court and call for a mistrial, not because the reaction of the jurors in the hypothetical and in the present case were the same but because the Government was guilty of misconduct.

    And I believe, Mr. Chief Justice, that that is the distinguishing feature of the case.

    Now, briefly, may I advert very briefly to one of two other points with respect to the situation that was before the Court yesterday during the Government’s argument.

    It is clear in the first place that the calling of the remaining 11 jurors including the two arguments by Judge McLaughlin singly for interrogation by him was done with full consent of the petitioner, defendant in the court below, appearing at page 1646 of the transcript of the record.

    The thing that the petitioner in the court below did not want the trial judge to inquire into when he called the remaining 11 jurors in was, they are subjective reaction to the — the contact, if they had heard of it.

    But under the Remmer decision, the Court was bound to do so because the first Remmer case said, “He must inquire into the impact of the jurors.”

    And Judge McLaughlin did that.

    There is another point that I should like to call to the Court’s attention.

    The reason that the jurors who were interrogated by the trial court exhaustively and fully and fairly were not told that the contact was not the result of anything on the part of the defendant, Gold, or on the part of government counsel in the Gold case was because when the Government counsel suggested that that be done, there was an objection on the defendant’s part.

    And that objection appears, if Your Honors please, on pages 1625, 1627 of the record as I read it.

    If Your Honors please, the last point is that the Remmer case, as both of them say that in a situation where there has been a communication with that sitting trial juror, there arises not an absolute presumption, but a rebuttable presumption that the burden rests upon the Government and rests heavily upon the Government to rebut the presumption.

    This situation before Your Honors is not the Remmer case at all.

    The vice of the Remmer case, as I view it, was that the trial judge, after the contact was brought to his attention, didn’t tell the defendant a thing about it, an ex parte almost in secret, investigated the matter.

    And the first time that defendant knew anything about it was after the Remmer trial.

    There was no hearing immediately.

    Here, there was.

    There was a full hearing, an exhaustive hearing conducted by the trial judge in which all parties were called before the Court and there was full opportunity for the defendant to ask questions if he wanted to or to pose questions to be asked if he wanted to and it — and they did that, if the Court please.

    I respectfully suggest —

    What was the tangible between the essential and the sufficient (Inaudible)?

    Joseph A. Lowther:

    Determinable, Your Honor, the episode was — the hearing was on March the 22nd, a Monday, 1954.

    And it’s my recollection, Your Honor, and I may be in error on this that the Government’s last witness was on the stand booth hence — and the case went to the jury maybe a week afterwards, somewhere in there.

    Joseph A. Lowther:

    I’m not positive on that, Your Honor.

    There was a — there was a lag of more than two or three days of that I am positive.

    I think it was more of a week.

    Felix Frankfurter:

    Mr. Lowther, I noticed on page 1631 of the record, the Court were not calling the jurors singly to interpret to the inquiry of the juror as to whether or not the fact — this is in fact been contacted by telephone or personally or in contact with the FBI agents.

    Did the call — did the presiding judge, when he did call in the jurors, carry out for the 50,000 and would ask the jurors namely whether they are — they contacted an FBI agent?

    Joseph A. Lowther:

    He asked the first three jurors Abrams, Morton and Dee Dee, Your Honor, that specific question.

    When it became apparent that there had been mentioned by them in some form or another through some of the remaining 11 jurors when the trial judge called the remaining 11 in, he did not ask them if they had contact but — if they had been contacted because it was clearly established at that time that the only three who had been contacted directly or indirectly were Abrams, Morton and Dee Dee.

    What the trial justice did was when he called —

    Felix Frankfurter:

    Is that in the (Inaudible)

    Joseph A. Lowther:

    It is, Your Honor.

    Felix Frankfurter:

    — mentioned or what (Inaudible) myself.

    Joseph A. Lowther:

    Very well, Your Honor.

    Felix Frankfurter:

    Because you have certain times after a number of serious questions.

    Joseph A. Lowther:

    Very well, Your Honor.

    In closing on the point, if it please the Court, the presumption was rebutted in this case.

    There was a full and there was a fair hearing by a learned trial judge who excused two jurors, the latter of — the second of whom had said he never heard anything about the incident (Inaudible), who exercises discretion to the utmost and who was in the position to view the jurors, view the witnesses and in the best position.

    May I suggest to the Court in the exercise of his discretion to determine whether the trial should and could go forward.

    Judge McLaughlin, in the court below after the hearing, said that the trial should go forward and it’s the government’s position that he did that in the exercise of the discretion given to him and that that discretion should be upheld in this Court.

    This is not the Remmer case.

    There was no evidence that any of the jurors were under terrific pressure as the jury foreman in Remmer testified.

    Now, with respect to the two witness perjury rule so called, it is true that the trial court refused to instruct the jury on the perjury rule, namely, that you must find the falsity supported, rather contradicted by the — testimony of two witnesses or by one plus corroborative circumstances.

    The Government says that the court was amply justified in refusing that instruction.

    For these reasons, Section 9 (h) of the — of the Labor Management Relations Act of 1947, which is the nonCommunist affidavit provision states, at the very end, that in respect to such affidavits, the provisions of Section 1001 of Title 18, United States Code, shall be applicable.

    That language was written by Congress in 1947, a little more than two years after this Court had handed down its decision in Wyler in which it reversed the trial court and said that in a perjury case, the instruction must be given.

    But I submit that this Court also mentioned in the Wyler case, “We have seen no legislation in derogation of the perjury rule even if it be archaic.”

    Two years later, with the invitation of this Court in the language of Wyler, Congress in passing Section 9 (h) of the Taft — of the Taft-Hartley Act, specifically said 1001 shall be applicable to the Taft-Hartley affidavits.

    I —

    Felix Frankfurter:

    Where is 1001 in your brief, is it printed?

    Joseph A. Lowther:

    It is, Your Honor, under the statutes involved, certainly.

    Felix Frankfurter:

    Where is that page specifically?

    Felix Frankfurter:

    Does that affiliate the requirement of the two witness rule in perjury cases?

    Joseph A. Lowther:

    You mean the — you mean, Your Honor, the wording of Section 1001 itself?

    Felix Frankfurter:

    Yes.

    Joseph A. Lowther:

    Insofar as its wording is concerned, it has nothing to say about the perjury rule.

    Felix Frankfurter:

    Then how — how could you say that that’s in response to a suggestion in Wyler that can — no legislation is abrogated?

    Joseph A. Lowther:

    For this reason, if the Court please.

    There never has been found to the Government’s counsel’s knowledge, an appellate decision in which involving a 1001 case in which the perjury rule has been held applicable and the one case which directly had the question before it in the appellate court Todorow against the United States cited in our brief, specifically rejected the application of the two-witness perjury rule in a 1001 — in a 1001 case.

    And furthermore, in the only nonCommunist affidavit case, to come before the appellate court, namely, Fisher against the United States before the Ninth Circuit — the Ninth Circuit Court of Appeals, although reversing on other grounds, rejected the proposition that the two-witness perjury instruction had to be given in a Taft-Hartley non-Communist affidavit case where Congress specifically said that 1001 was applicable.

    Felix Frankfurter:

    What’s the first case you — you have cited?

    Joseph A. Lowther:

    To — Todorow, Your Honor.

    T-O-D-O-R-O-W and this —

    Felix Frankfurter:

    I couldn’t find it in your — your brief — on your brief?

    I couldn’t find it in your list of cases.

    Joseph A. Lowther:

    Your Honor, please, I am in error.

    I am sorry.

    It is not in the list of cases.

    I can say to the Court —

    Felix Frankfurter:

    What’s the citation?

    I don’t care about your — because I know where it is.

    Joseph A. Lowther:

    May I submit the citation to Your Honor in — by way of a memorandum afterwards?

    Felix Frankfurter:

    Sure.

    Joseph A. Lowther:

    Thank you.

    In every trial court — the Todorow case, I should say incidentally is — appears in the Fisher appellate opinion in — in the Ninth Circuit.

    In every trial court involving a prosecution on the Taft-Hartley nonCommunist affidavit provisions, including Valenti in New Jersey, the Hoffman case, the Lawman case, Jenks case, Trison, Travis, Fisher, Nelson and (Inaudible), the trial courts have all refused to give the perjury instruction in the 1001 proceeding.

    Argument is made that —

    Felix Frankfurter:

    There must be any number of — there are any number, aren’t there?

    False — statutes making it an offense to make a false statement about theirs passports and so on, aren’t there that many?

    Joseph A. Lowther:

    There are, Your Honor.

    Felix Frankfurter:

    But now, this question not arisen on those other false swearing nontechnical perjury cases?

    Joseph A. Lowther:

    Not so far as the Government is able to ascertain, Your Honor.

    Joseph A. Lowther:

    In one case cited in the Government’s brief, Lange, L-A-N-G-E, against the United States, it’s my recollection that Judge — District Court Judge — sorry, Your Honor.

    I believe the Lange case is cited in the petitioner’s brief.

    District Court Judge Weinfeld in his opinion, as I read it, implicitly say that where Congress wants to make the provisions of the perjury statute, 18 United States Code 1621 applicable, they can say so and they did.

    Here, they said 1001 with the past history that the two-witness perjury rule has never been applied in 1001 cases, and it seems to the Government that that’s a clear mandate on Congress’ part that it will not burden the Government in 1001 prosecutions under the Taft-Hartley Act with the prescriptions or the added burden of the two-witness perjury rule.

    They also included however (Inaudible)

    Joseph A. Lowther:

    In an —

    And therefore, it proved (Inaudible) specification.

    That’s something that has been attributed to (Inaudible)

    Joseph A. Lowther:

    If Your Honor please, at the time that the Taft-Hartley Act was passed in 1947, the penalty under 1001 was 10 years as far as prison term was concerned.

    It later was reduced to make it equal with the perjury statute, five years of each.

    Now, the argument has been ceased upon by petitioner that it’s incongruous to have a Congress naming a statute 1001 with a greater penalty than the perjury statute had.

    The Government’s answer is that it isn’t incongruous, if the Court please, it’s equally justifiable by way of reason that Congress intended to protect interstate commerce from political strikes which was the basis of the Taft-Hartley Act by imposing a greater penalty at the time.

    I think that the penalty provision is not indicative with respect to the question of whether or not the two-witness perjury rule should have been — should be applied.

    And the —

    I didn’t mean that.

    (Inaudible) of your argument is that since these lower court cases do not apply the two-witness rule (Inaudible)

    Therefore, Congress (Inaudible) Governmental statute case, to statute which requires this two-witness rule.

    Joseph A. Lowther:

    That is correct, Your Honor.

    (Inaudible)

    Joseph A. Lowther:

    And that was the burden of my last remark, Your Honor, that it well could be that Congress didn’t want the higher penalty imposed at the time it passed the act without burdening the Government with the — with the prescriptions of the perjury rule.

    Felix Frankfurter:

    What — what is the justification in the policies of the two-witness rule in a perjury case?

    Joseph A. Lowther:

    Well —

    Felix Frankfurter:

    You may now say, to be observed because of history but what is the source of that?

    What justification has reached the —

    Joseph A. Lowther:

    I think that the — on my personal — I mean, the Government’s position, I would put it is that there is very little justification for it in reason.

    Our Court of Appeals for the District of Columbia has said that the true perjury rule is this.

    That it is not that you have to have two witnesses or one plus corroboration but that the rule is that you cannot prove perjury on the unsupported testimony of one witness.

    And our Court goes further just to say in the (Inaudible) case and in an Oregon case that in peculiar circumstances, perjury may be proved by circumstantial evidence alone.

    And it seems to me that where in a murder case or a rape case or other crimes of — of violence in — in the serious nature, you can have the — you can have a conviction on a testimony of one witness.

    It does not, with all due respects, appeal to logic to say that in perjury, you have to have two or one plus corroboration that circumstantial is not sufficient.

    Felix Frankfurter:

    The nature — the nature of the conduct is penalized or adjusted it.

    Joseph A. Lowther:

    Well, if Your Honor —

    Felix Frankfurter:

    Because a murder is one thing and terminates whether a man spoke something falsely, it’s a very different thing, so one may be more heinous than the other.

    That’s what this Court — must have been the (Inaudible) case that — but instead the fact that this rule is persistent, unquestioned — unquestionably in all the jurisdictions.

    Not that I’ve put them up just before a term but they speak some reason for it.

    A rule like that doesn’t persist merely because it has a momentum like this.

    Joseph A. Lowther:

    Well, if, Your Honor, please.

    I believe that the reasoning in the Wyler case says that in substance, that the rule has persisted its time on it and until changed by a legislation, it’s there and there it is.

    Felix Frankfurter:

    Your — your finding, a change in legislation by the fact that this has to be brought within the 10001 which is the — which is the generalized section about call (Inaudible) the Government conceded, isn’t that it?

    Joseph A. Lowther:

    I am saying as one reason, yes, Your Honor, that Congress in plain language, in the very writing of Section 9 (h) of the Taft-Hartley Act said, 1001 shall be applicable.

    Felix Frankfurter:

    But that merely drives one to finding out what 1001 requires.

    Joseph A. Lowther:

    Well, if Your Honor please, 1001 requires a —

    Felix Frankfurter:

    There’s nothing on this subject.

    Joseph A. Lowther:

    It does not with respect to the so called perjury rule.

    No, Your Honor.

    Felix Frankfurter:

    You can’t ask it.

    Joseph A. Lowther:

    No, Your Honor.

    If the Court pleases, I should like to pass to the question of the — raised by the petitioner that this case was tried in the court below on an unconstitutional interpretation of the Douds case.

    In other words, that the Government tried this case on the theory that a Communist could not resign from the Party and therefore, we violated the principle enunciated by this Court, through Mr. Chief Justice Benson when he said that the reason that the Act was not a bill of attainder was because there was no one who, by a voluntary change in his loyalties, could not truthfully sign the affidavit.

    If Your Honors please, this case was not tried on the first count, the membership count, on any theory that Gold could not resign.

    This case was tried on the theory that Gold in fact did not resign, that his resignation was a fraud and a sham and done only in order to give him a paper at least that he could use to sign the non-Communist affidavit.

    In other words —

    Earl Warren:

    Was there any testimony on that point contemporaneous with the signing that will establish your position?

    Joseph A. Lowther:

    Your Honor, the — in point of time, the closest testimony to the actual date of signing, filing August 30, was testimony with respect to the meaning of Gold’s so called resignation statement which appeared publicly which was issued on August the 27th, about two days before he actually signed and three days before his affidavit was received by the Board.

    Earl Warren:

    What was that testimony?

    Joseph A. Lowther:

    That testimony, Your Honor, was this.

    That in the resignation statement where the petitioner, Gold, among other things said, “Neither I nor the Communist Party have ever advocated the overthrow of a democratically elected government,” and where he said, “I have resigned from the party, but I do not give up my belief in true democracy.”

    That those phrases contained in the language of the Communist Party, aesopian language, which merely means double thought.

    And that in the expert’s opinion, the phrase, “democratically elected government and true democracy” mean one thing and one thing only to wit the Union of Soviet Socialist Republics and that the United States is not a democratically elected government.

    Earl Warren:

    But who gave the testimony about the aesopian language being used?

    Joseph A. Lowther:

    The government witnesses Gitlow, Lautner, Johnson.

    I believe those are the three, Your Honor.

    Earl Warren:

    When were they — when were they in the Party to acquire that information?

    Joseph A. Lowther:

    Lautner was expelled from the Party in 1950 —

    Earl Warren:

    That was three years —

    Joseph A. Lowther:

    January.

    No, it was about three months or four months before.

    January 1950, Your Honor.

    I should add, there was another witness, (Inaudible), who was in the party as late as 1953 when he testified in Seattle, who also, to my recollection, testified concerning the “aesopianism”.

    I should further say that it is clear from the testimony that Gold, when he attended the Lenin Institute in Moscow, Russia in 1930 and 1931, where he was taught among other things class warfare.

    He was also taught the use of aesopian language.

    That was testified too by the witness (Inaudible).

    And that it further appeared from the record that in 1935, Gold presided at a Communist Party meeting wherein the question of Communist getting back into the AFL arose and that it was told to Gold and told to those present that they should use every artifice and every device even the denial of membership to get back into the AFL.

    And further, in 1948, Gold attended a Communist Party meeting in which the top echelon of the Party presided in New York, in which the whole question was what to do about the Taft-Hartley affidavits.

    And it’s clear from a testimony of the witness Akert, if the Court please on that point that the discussion there again was the use of false resignation.

    It’s clear further from the witness Lautner that one of the devices used by the Party for false resignation was the use of registered letters which is precisely what the defendant Gold did when he wrote the Secretary General of the Community Party, “Dear Gust, I am hereby resigning.

    Fraternally Yours, Ben Gold.”

    In other words, if the Court please, this case was submitted not on any can’t resign theory on count number one, it was submitted to the jury and he didn’t resign, his resignation was false, and the jury was entitled to infer not only from that but from evidence as to subsequent actions of Gold when he attended the 1951 and 1952 Mayday Parades which the evidence showed where Communist control and was on the stand with Williamson, Dennis and the rest of the hierarchy of the Communist Party and spoke there and was at the parade and spoke in 1952 that if he had made a bonafide change in allegiance, in other words, that severed his membership, he never would have been allowed near Union Square in May of 1951 and 1952.

    I might further say to the Court —

    Stanley Reed:

    Well, could he — could he obtain his (Inaudible) ambitions for the Party and yet resign the so called membership.

    The — the Act as I understand it said that he — he can’t resign so long as — so long as he is a member, he can’t make his affidavit.

    Joseph A. Lowther:

    That is correct, Your Honor.

    Stanley Reed:

    Now, certain philosophic in his communism and you can perhaps have a hope that the Communist Party was subsidiary and yet not be a member.

    Joseph A. Lowther:

    That is true, Your Honor.

    The jury was instructed on that point that Gold was not being tied for his beliefs.

    It was not illegal for him to have been a member.

    But the evidence was also that the formal indicia of membership in the Communist Party to wit carrying cards, attending meetings, paying dues, is not the only time of that membership in the Party.

    It was testified too abundantly and testified too by the witness Akert with respect to signing an nonCommunist affidavit, that the whole plan then would be to have an underground connection and membership with the Party.

    In other words, that the formal indicia are not necessary for the — for the membership, where there was the false resignation.

    Felix Frankfurter:

    May I ask you —

    Stanley Reed:

    You’ve said here that the officials, in some of the statutes, be an official of the Communist Party, won’t have to be such an official as was elected in the — in the bylaws.

    He might have the power without the title.

    Joseph A. Lowther:

    Well, if the Court please, the evidence before the jury was that membership is not limited to those who carry cards and so on.

    There is membership in the Party by those who have connections covertly, whose allegiance to the Party is there, whose objection to discipline is there.

    And that is what we submit, was justifiable inference — inference for the jury in the Gold case on count one.

    I might further say that since the concurrent sentences were imposed, that there’s no need for the Court to reach count three if in fact the Court finds that count one is valid which the Government strongly urges it is and we don’t mean to say that count three isn’t either.

    I should, in closing, say that I have not reached the question of the grand and petit juries.

    It’s covered adequately in the — in the Government’s brief.

    One final word, the —

    Felix Frankfurter:

    That essential difference mean the issue on that subject in this case and what the court decided in general?

    Joseph A. Lowther:

    There is none with respect to the petit jurors.

    There was ample opportunity for showing of actual bias.

    The Dennis case, I don’t think, Your Honor, the first Dennis case, the contempt case did not reach the grand jury question.

    The Government’s position is the same as it was in (Inaudible).

    Final word with —

    Felix Frankfurter:

    What proportion of the jurors — of the petit juries consisted of government employees?

    Joseph A. Lowther:

    Five government employees and the wife of a Washington policeman.

    Felix Frankfurter:

    And what — what department were the government employees?

    Joseph A. Lowther:

    If Your Honor please, my memory does not serve me on that.

    The petitioner has suggested to this Court that the Solicitor General, if he has information that a government witness Johnson perjured himself in Gold, should come forward.

    I am authorized to state to this Court that if the Solicitor General had information in his possession that any witness in the Gold case did not testify truthfully in that case, the Solicitor General would have been before this Court.

    This is not the (Inaudible) case, nor is it the Communist Party case where the motion was made before the Board for a remand on grounds of newly-discovered evidence.

    The petitioner claims that Johnson perjured himself subsequent to trial with the Gold case in another matter.

    He has had over two years since that — that notice of that — of his allegation was made public through the column of a columnist Mr. (Inaudible).

    He has made not one move in the trial court under Rule 33 of the Federal Rules of Criminal Procedure and at (Inaudible) to press the point before the highest court in the land which is not the form for passing on motions for a new trial.

    In closing —

    Does the — could I ask you one question?

    Joseph A. Lowther:

    Yes, Your Honor.

    Does the record show why the Government, after failing to get an indictment before a New York grand jury and move the case down here?

    Joseph A. Lowther:

    Well if, Your Honor, please.

    Joseph A. Lowther:

    The record does not show that.

    (Voice Overlap) —

    Joseph A. Lowther:

    I should say to the Court that I’m not at all positive in my own mind.

    In fact, I’m probably positive the other way that the New York investigation was not — was an investigatory grand jury.

    If Your Honor appreciates what I’m saying, I — I can’t very well make a disclosure as to what happened before the grand jury, but I can say unqualifiedly that my understanding is that it was an investigatory point up there and furthermore, that the venue for the affidavit under Valenti is in the District of Columbia and not in New York, if the Court please.

    In closing —

    Felix Frankfurter:

    May I ask — before you close, may I ask?

    You referred to the perjury problem.

    The Court refused or requested to charge the two witnesses.

    Joseph A. Lowther:

    Yes, Your Honor.

    Felix Frankfurter:

    What I want to know, I ought to know but I don’t.

    Did the Court charge that there must be corroboration of the Party?

    Joseph A. Lowther:

    No, Your Honor.

    Felix Frankfurter:

    Was there request made for such a charge and denied?

    Joseph A. Lowther:

    My recollection does not serve me, Your Honor.

    Felix Frankfurter:

    Whether it all turns on — on the granting — refused to grant the two witnesses.

    Joseph A. Lowther:

    That is correct, Your Honor.

    Earl Warren:

    (Inaudible)

    Joseph Forer:

    If the Court please.

    Earl Warren:

    Mr. Forer.

    Joseph Forer:

    I believe I have two minute — minutes left and in those two minutes, I want to ask the Court this.

    Namely, that it not passed over all the issues in the case other than the FBI’s communications with the jury.

    Aside from this FBI episode, this trial was marked by numerous other unfair circumstances, those were intentional and were not unintentional.

    If this case goes back to — for a retrial, they will be repeated if this Court remains silent on them.

    We say that there should not be a repeat performance in this case on the retrial, whereby Mr. Lowther would once more intimidate a jury of government employees by introducing weeks of lured testimony on the claim that he is proving the admitted fact that Ben Gold had been, for 30 years before his resignation, a member of the Communist Party.

    And we don’t think that he should be permitted by the silence of this Court to wit induce the jury that Mr. Gold is still a member of the Communist Party because he could no more resign from the Party than a soldier from the army.

    And we don’t think that the Government should be allowed to use Manning Johnson whose credibility and veracity in the (Inaudible) case, they found themselves unable to defend and who is a self-admitted perjurer to the knowledge of the Government.

    Moreover, despite Mr. Lowther’s highly erroneous statement of the facts, on this record, there is not one shred of adequate reasonable evidence of guilt.

    And we don’t think that petitioner should go through another unfair trial without the protection of the perjury rule under misleading and vague instructions.

    We say that the right course is to direct judgment of accordance.