Travis v. United States

PETITIONER:Travis
RESPONDENT:United States
LOCATION:Annette Islands, Alaska

DOCKET NO.: 10
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 364 US 631 (1961)
ARGUED: Dec 13, 1960
DECIDED: Jan 16, 1961

Facts of the case

Question

  • Oral Argument – December 13, 1960 (Part 2)
  • Audio Transcription for Oral Argument – December 13, 1960 (Part 2) in Travis v. United States

    Audio Transcription for Oral Argument – December 13, 1960 (Part 1) in Travis v. United States

    Earl Warren:

    Number 3, number 10, and number 71, Maurice E. Travis, Petitioner versus United States.

    General Taylor.

    Telford Taylor:

    Mr. Chief Justice, members of the Court.

    This case comes here on certiorari to the Tenth Circuit and it involves an appeal from a conviction for filing false affidavits under the Taft–Hartley Law, false non-Communist affidavits.

    Section 9 (h) of the Taft–Hartley Law, since repealed is the statute proscribing that such affidavit shall be filed by the officers of unions which wished to utilize the provisions of the Taft–Hartley Law.

    The statutes under which he petitioner was tried and convicted are the same as those that were involved in two cases that had been here three or four years ago, the Jencks case and the Ben Gold case.

    Although the questions that are involved in this case are on the whole different from the ones involved there.

    There are in fact one or two questions that overlap — that were in Gold and will recur in this case.

    Now, I should explain at the outset that this case has three numbers but it’s all one case.

    The appeal from the conviction, which is the main part of the case, is number 10 and the record in number 10 is contained in these two some of the ponderous volumes.

    After the petitioner was convicted, there were two separate motions made for a new trial based on newly discovered evidence.

    And those motions were separately denied by the trial court and separately affirmed by the Court of Appeals and separately petitioned for here and that is why they bear different numbers.

    Numbers 3 and 71 are the certiorari — the writs running to the Court of Appeals decisions denying those motions for a new trial.

    But the main part of the case and the main problems are those associated with the — the appeal from the conviction itself which is in number 10 with a two volume records.

    Felix Frankfurter:

    Just as a matter of curiosity, Mr. Taylor, is it customary in cases in which — for appellate procedure of Second Circuit to break up —

    Telford Taylor:

    Tenth Circuit.

    Felix Frankfurter:

    — every new case?

    I beg your pardon, the Tenth Circuit.

    Telford Taylor:

    To break up that way?

    Felix Frankfurter:

    Yes.

    Telford Taylor:

    Well, there was a question in 10 here.

    Actually, the first motion for a new trial was decided by the Court of Appeals before it affirmed the appeal from the conviction itself.

    The — it took them longer to decide the appeal and therefore, they denied the first motion for a new trial.

    Felix Frankfurter:

    Did they all went up together?

    Telford Taylor:

    No, they didn’t all go up together.

    The — the motion for the first new — first motion for new trial went up and is acted —

    Felix Frankfurter:

    Before the day —

    Telford Taylor:

    No, it didn’t.

    John M. Harlan II:

    Is it up there before?

    Telford Taylor:

    It was acted on before yes.

    Felix Frankfurter:

    Yes.

    Telford Taylor:

    I must ask the counsel.

    They got up there after the main case, Mr. Justice Frankfurter, but it’s decided sooner.

    That’s again why the first motion has an earlier number than the main appeal, why it’s got number 3 and the main appeal number 10.

    Now, the petitioner was in fact tried twice.

    His conviction after the first — his conviction after the first trial was reversed by the Court of Appeals for the Tenth Circuit on grounds that are no longer relevant here.

    And it had to do with certain evidentiary rules in the trial and those questions are no longer in the case.

    The appeal from the second conviction was affirmed by the Court of Appeals with Judge Murrah dissenting.

    And the questions that are presented by our petition with one exception are all questions relating to events at the trial.

    The various matters pertaining to the trial proceedings, that one exception being the question of venue which I will be dealing with first after a little more about the case itself.

    I will have occasion later on to refer to the certain portions of the evidence with some particularity but I think at the outset, a very brief statement of what this case is about will be — will be enough.

    The details of the evidence were of course quite different but in the large, the case is not unlike the Ben Gold case.

    It’s not unlike it in this sense that the petitioner here, like Gold, was an open and avowed member of the Communist Party and openly avowed his membership prior to the passage of the Taft–Hartley Law.

    And again, like Gold, the Taft–Hartley launched at the fact and couple years thereafter, the petitioner issued a public statement in which he said that he was resigning, that he had resigned from the Communist Party for the specific purpose of enabling him to maintain his status as a union officer so that he could then file an non-Communist affidavit and his union would have compliance state as under National Labor Relations Board.

    And after having made that public statement that he was resigning from the Communist Party, he did sign non-Communist affidavits.

    They were filed to the National Labor Relations Board and the compliance status was obtained.

    And therefore, the ultimate question for the jury here was whether despite that statement of public — that public statement of resignation, the petitioner had maintained a clandestine relation or connection with Communist Party amounting to membership or affiliation.

    I should say too that the petitioner here had been an employee of this union, the International Union of Mine, Mill and Smelter Workers for a number of years and he became secretary of treasurer in 1948 and that was the office he occupied at the time he signed these affidavits though he no longer does.

    The headquarters of this union which is the principal union dealing with nonferrous metals, headquarters is in Denver and the petitioner’s statement of resignation from the Communist Party, which is in exhibit in the record here, I’ll refer to it later on, was issued in August, 1949 about two years after the Taft–Hartley Law took effect.

    As I’ve already mentioned that the provision of the Taft–Hartley law requires these affidavits, and it’s set forth in the appendix to our brief.

    What the affidavit must cover is a specific denial of Communist Party membership, a denial of affiliation, and a further denial that the — that the defiant is not a member of and he does not support any organization that believes and/or teaches the overthrow of Governments.

    The two affidavits on which the indictment is based here were filed respectively in December, 1951 and December, 1952.

    And these affidavits were executed by the defiant in Denver.

    They were then combined with the other — the affidavits of the other union officers and were sent under cover of a letter from the union presidents to the National Labor Relations Board in Washington where they were received and filed in the offices here, a word about the indictment which recurs on the first four pages of the big record.

    The Court will see that it originally contains six counts.

    The first three counts were based on the 1951 affidavit.

    The second three counts were based on the 1952 affidavit.

    The first count charged a false statement as to the membership.

    The second count, a false statement as to the affiliation and the third count charged that he in fact kind of supported an organization that talk about overthrow.

    And counts four and five and six were the same, except they related to the second affidavit in 1952.

    Telford Taylor:

    Now, we only have left in the case count one, two, four and five because one — one, two — yes, that’s right.

    Because counts three and six which are the support counts were dismissed by the Government before a trial and so they played no part in the proceedings.

    The petitioner was nonetheless convicted on these four counts that remained.

    The two counts on membership and affiliation relating to the 1951 affidavit and the two on membership and affiliation relating to the 1952 affidavit, and he got four years on each count but the membership and affiliation, counts one and two on the 1951 affidavit ran concurrently and the two counts on the 1952 affidavit where it began after that, so he’s got eight years to serve in all in the sentences on the counts and then he was also fined on the membership counts but not on the affiliation counts.

    Now, as I have said all but one of the issues pertaining to proceedings in the trial court.

    Let me just mention in advance or we’re coming back to them, two of these issues that are maybe especially important.

    One of them is the question of access to grand jury minutes and the questions there grow out of questions dealt within the Pittsburgh Plate Glass case.

    And another question is whether the special rules on pardon of proof in perjury cases should be applied — should or should not be applied here, the so called “two witness rule.”

    This has not been a technical perjury case but nonetheless involving a false statement.

    The issue was whether those rules peculiar to perjury should be applied here.

    That question was before the Court when the Gold case came up and was briefed and fully argued when the Gold case was here, although the Court didn’t pass on it because they sent it back, here they reversed that case on other grounds.

    Now, these two points relating to the grand jury minutes and perjury rule are the two matters on which Judge Murrah dissented below.

    There are several other questions pertaining to the trial, couple of them growing out of the Jencks statute and then there are of course these questions, count with the — the question of the denial of the motion for a new trial in cases 3 and 71.

    I’ll be coming back to those but I want to deal first with the question of venue and I want to deal with it first of course because if we are right in our position that there was no jurisdiction in Colorado and the proper — the only proper venue is here in Washington, then of course, the indictment has to be dismissed and all these other questions pertaining to the trial will fall away because that will — that would require a dismissal of the entire indictment.

    Now, our challenge to the venue is based on the fact that the petitioner was tried not in the District of Columbia where these affidavits were filed as they had to be, but in Denver, where the union had its headquarters and from where these affidavits were mailed.

    And other things should be explained at this point and that is that under the Board’s regulations, officers of local unions are required to file their affidavits at the regional offices of the National Labor Relations Board, the nearby regional offices or wherever the nearest one may be, whereas officers of national unions or as they’re more often called international unions.

    They are required to file affidavits at the main offices of the Labor Board here in Washington.

    Now, in Government’s general practice, in bringing proceedings against people who’re accused for falling — filing false affidavits, has been to bring the indictment where the affidavit was filed, not from where it was mailed.

    The Gold case itself came up from the District of Columbia here where the affidavit was filed, though Gold had made and mailed the affidavit from New York.

    The Jencks case, Jencks was tried in the Western District of Texas where the regional office of the Board is at El Paso and not in New Mexico where he had been an officer of the local union and where he had made and from where the affidavit had been mailed.

    And the same is true of all the other cases except one and this one that the — that the indictment has been brought at the place of the filing, not at the place of mailing.

    In the present case, the Government has sought to establish venue in Denver on the basis of the mailing.

    The petitioner, then the defendant, made timely challenge to venue, there’s no question about that, on this very ground.

    The District Court upheld venue in Colorado and the Court of Appeals affirmed that.

    Now, that decision on the venue is on the appeal from the first conviction, not the second.

    And therefore, you won’t find any mention of venue in the Court of Appeals opinion from which we are now coming.

    And for some reason, that first opinion of the Court of Appeals is not in the records but it is in the appendix to our petition for certiorari and of course it is reported in the federal court.

    And the decision below sustaining the venue in Colorado is one of two Court of Appeals decisions dealing with this.

    The other case is the — one other case where the defendant was indicted at the place of mailing and that is the Valenti case, which went to the Third Circuit.

    And the Court appeals for the Third Circuit in the Valenti case held that there was venue only at the place of filing and therefore, sent the case back to be dismissed on the ground that the venue was improper.

    Telford Taylor:

    I should add that Judge Hastie, in the Valenti case, wrote a concurrent opinion.

    He concurred because the proof of mailing was insufficient, but he expressed views in his concurrent opinion which are more like the views expressed in this case below, whereas Judges Biggs and Maris held that venue would lie only where the affidavit is filed.

    Now, our position is that the Valenti case was rightly decided and the decision below is wrong and that there’s venue only here in Washington.

    And I think in addressing myself to this issue, it would be helpful if I state first that part of the analysis on which there is no dispute between the petitioner and the Government, and then come to the point at which we part ways.

    And may I now therefore invite the Court’s attention to the statutes that are directly involved here which are in the appendix to our brief, pages 1 (a) and 2 (a).

    The third paragraph of that appendix sets forth 9 (h), and the Court will see that the statute specifically says that the union can’t use the facilities of the Board unless there is an affidavit on file, unless there is on file with the Board, an affidavit.

    That’s in the third line on the top of page 2 (a).

    So the requirement is expressly placed on the filing then.

    Now then, the penalty is contained in the last sentence further down there.

    The provisions of Section 35 (a) of the Criminal Code shall be applicable in respect to such affidavits, meaning clearly affidavits which are on file with the Board.

    Now, 35 (a) of the Criminal Code has been since broken down into a number of different Code provisions but the one that’s involved here is set forth on page 1 (a) just back of the page, 18 U.S. Code 101, that’s the well known false statements statute which makes it an offense to make or use a false statement in a matter within the jurisdiction of any government agency.

    John M. Harlan II:

    Has 9 (h), Mr. Taylor, ever had its own criminal provision?

    Telford Taylor:

    Not that I know of.

    The — the sentence with 35 (a) and to the best of knowledge came in to deal with the time.

    John M. Harlan II:

    (Inaudible)

    Telford Taylor:

    35 (a) is no longer the governing statutory reference as the Code explains.

    Now, there’s no doubt that there is no matter within the jurisdiction of the — of the Board until the affidavit gets there and there’s no doubt that what — that what is made an offense here is the — is the filing.

    The Government doesn’t dispute any of that.

    It’s also plain enough that Congress was not concerned about union officers generally speaking made any falls at affidavits.

    The only thing they are concerned about was —

    Felix Frankfurter:

    Was this Act —

    Telford Taylor:

    — if it was used as a representation for the Board and filed there in order to get compliance status.

    The essence the crime here is the filing and there’s no crime unless it is filed, and I don’t understand whether the Government disputes any of that.

    It’s equally plain that the one and only place that this affidavit could properly be filed was Washington.

    The Boards’ regulations which the Government’s brief refers to and the instructions on the back of the affidavits themselves, say to the place to file these affidavits is the affidavit compliance branch Washington D.C.

    You could not get compliance — you have to file this affidavit in Washington if you’re a national officer as the petitioner was.

    And finally, there’s no dispute that there is venue to prosecute this offence here in Washington.

    The Government couldn’t dispute that because as I say in every other case except this and one other, they have prosecuted the defendants at the place of filing and anyhow they don’t dispute it.

    So, this is not a problem of venue in Washington or in Colorado.

    There is no question that there is venue in Washington.

    Telford Taylor:

    And the only issue is whether this is a case of multiple venue and that the petitioner can be tried in Colorado as well as in Washington.

    And that is now the point at which the Government and the petitioner diverge.

    The Government sets that there is additional venue in Colorado under the statute that the Court will find set out on the very last page of our brief, appendix page 6 (a).

    That is 18 U.S. Code 3237, the commonly referred to as the continuing offence statute.

    The first paragraph of that is the – it has been on the books a long, long time and that is the governing paragraph here from the Government’s view point.

    It specifies, the Court will see, that any offence which has begun in one district can complete it in another or committed in more than one maybe in part and persecuted it in any district in which such offense was begun or completed.

    Just for clarity, let me say that the second paragraph has no bearing here.

    That second paragraph has been added later and that is restricted in this application to offenses in which the use of the mails or challenge an interstate commerce as the essence of the offence.

    That was passed after this Court’s decision in the Johnson case, but it has no bearing here.

    The question which the Government’s position raises is whether this offense was begun in Colorado within the meaning of that first paragraph.

    We say that that this offense was a single offense of filing.

    That it wasn’t, in a legal sense, begun anywhere else, and that under the Sixth Amendment of the Constitution, there is no constitutional basis for jurisdiction in Colorado.

    And as authority for our position, what we rely on primarily is the long established rule which this Court laid down in the Lombardo case, in 241 U.S.

    That where the offense relates to the filing the thing as it does here and where it is proscribed by law where the document shall be filed that there is venue only at the place of filing.

    We think that rule squarely governs here.

    I will make some couple of comments in conclusion as to the policy considerations at work here.

    We don’t think that — we think the policy considerations back at this rule are sound and the Court should adhere to it and apply them here, and I will come back to those policy grounds in a few moments.

    I’d like to say a word first about 3237, 18 U.S. Code 3237 that’s contained in the offense statute.

    It has been on the book since 1867 and it came into the statutes at large along with the well known statute that punishes conspiracy to commit an offense against the Unites States or to defraud United States.

    They were born in a single paragraph together in the statute in 1867.

    Therefore, there have been a great many decisions construing this statute.

    We have dealt with those decisions in our brief at some length.

    We’ve also set forth what little can be established from the legislative history which is not enormously helpful either way on this.

    And that is all in our brief, the legislative history, and the case history of this statute and I don’t see any reason to take the Court’s time by tracing all that through.

    But two things do emerge from the study of the background of 3237.

    One is that it clearly was not intended to as indeed it could not limit a defendant’s constitutional right to be tried in the district where he committed his offense.

    And the second is that this statute, except of that second paragraph, which relates to that narrow oppressive offenses, this statute does not specifically make any particular federal offense a continuing offense or say that any particular offense has a beginning nor a middle or an end.

    On those matters, we have to look to the statutes, the criminal statutes themselves to see what is the Act that is proscribed and then to the indictment to see what of the proscribed acts are charged.

    It is only by that method that one can ascertain whether an offense is a continuing one and therefore has a beginning which would — or in ending a completion which separately would provide a basis for venue.

    One other general consideration, if the Court please, and that is that in determining the bearing of the Sixth Amendment involving the guarantee of a right to trial in the district where you committed the offense.

    Telford Taylor:

    It’s important I think to bear in mind that that Sixth Amendment is in no sense a restriction on the power of Congress to punish criminal acts and that is not our point here.

    We have no doubt that Congress could have said that it shall be an offense to put a false affidavit in the mail or put a false affidavit and challenge an interstate commerce, or if you put a false out to make a false affidavit intending to file it before the Labor Board.

    But the point is, it hasn’t set any of those things.

    It has put the criminal impact on the filing.

    There are a number of other statutes where Congress has made a lot of different steps in a chain criminal.

    For instance, the statutes’ relation to income tax returns, make the preparation criminal as well as the filing.

    In our brief at page 15, we’ve referred to a number of statutes like this.

    There are statutes that make it criminal to post a ransom letter or to deposit lottery material in the mail or to transmit false pension papers.

    When you have a statute like that, you don’t have any constitutional problem because there, the Congress has put the criminal impact on the Act.

    It’s the Act which has been done where the indictment is brought.

    But here, the criminal impact has been put on the — on the file, and we do get a constitutional problem and a problem under this section of the statute.

    When Congress has punished one Act and the Government seeks to establish venue on the basis of a different Act committed either before or after and in some different place.

    Quite a few such cases have been here.

    The Cores case was here not long ago involving alien seamen who land unlawfully and remained in the country.

    Thus, the remain constitute a continuing offence.

    Earlier, there was the case the dentures that had not passed — had not been approved by the state to which they are being shipped, it was that offence committed in two places.

    There are many such cases, but we don’t have to really bother with those in this one because Congress has put the criminal sanction on the filing, the place of the filing is proscribed by law, and under those circumstances, the rule is well established and we think the Lombardo case governs.

    Now, the Lombardo case —

    John M. Harlan II:

    I think the Lombardo case specifically made that filing a criminal act, did it not?

    Telford Taylor:

    The Lombardo case made either a failure to file or a false filing —

    John M. Harlan II:

    Or a false filing.

    Telford Taylor:

    — criminal if you harbor an alien prostitute and did not file within 30 days after the (Inaudible) began.

    John M. Harlan II:

    But is it quite — is it quite accurate to say that the gist of this offense is the filing?

    Telford Taylor:

    It seems to me, Justice Harlan that that is the only thing that Congress had any interest in here.

    The only effect in statutory terms that this affidavit has is that when the Labor Board has got affidavits in its files from all the officers of the union.

    At that point, they — they give you what they call a certification of compliant status.

    The record complains, the letter going back saying, “Your affidavits are here and now there is compliance.”

    Congress had absolutely no interest in whether a false affidavit was made or mailed or anything on any umber of subjects except if it was filed with the Board and thereby became the basis for compliance.

    That is the sole scope of the statutory policy, and therefore, I would say yes that the only thing Congress was concerned with here was the filing.

    Just as in Lombardo, the impact was put entirely on the filing.

    Telford Taylor:

    And in that case, the Government endeavored to make exactly the same arguments that are being made here.

    They said there was a beginning at the place where the alien — where the alien prostitute was harbored.

    William O. Douglas:

    As I remember that was a favorite spot.

    Telford Taylor:

    That is correct.

    And the Government and the court below had endeavored to draw a distinction between a failure to file and a false filing.

    We can’t see any basis in the distinction on that ground.

    The Government reasons it out this way as I understand it that if you — that once you have put your false affidavit in the mails, it’s irrevocably out of your control and therefore, that’s the place where the act is done.

    But I would suppose that a failure to file within the time limit is really even more irrevocable than putting something in the mail.

    As a matter of fact, here that first affidavit took nearly eight days to get to Washington.

    It would have been possible for the union to telegraph or phone and say “We’re withdrawing our request for compliant status, send us our affidavits back and disregard this application.”

    And at any event, as far as the policy and reason for this rule, Justice Douglas, to draw a distinction based on whether it’s misfeasance or nonfeasance, doesn’t seem to me to have meaning in terms of the policies that are at work here which I would like to come to — come to now.

    Let me say before I do that that rule in the Lombardo case and there’s general rule that where the offense is the filing and where the filing placed proscribed by law that there’s venue only there.

    That has been followed as far as I know consistently since and before Lombardo.

    There is no lack of authority for that general principle.

    The cases cited by the Government are cases where there was no place of filing fixed by law or as I indicated the moment ago, where the statute did specifically punish the earlier act like the posting (Inaudible) letter or the transmitting of pension papers which we don’t have here.

    Is there any reason to change the rule?

    The Government in its brief says something about residents and endeavors the ground on argument on the stack that the petitioner here, lived in Denver so that in the point of fact, he was being tried closer to home there than he would’ve been here.

    Well, that argument has an initial appeal but if anything is well settled under the Sixth Amendment, it is that the Sixth Amendment policy relates to the locus of the offense and not to the residence of the defendant.

    Felix Frankfurter:

    No, but if you consider the policy of the Sixth Amendment, the tenderness towards the defendant and the benefit to him has not been led to cause to compliment, I — I put to you that the Johnson case, in expounding the policy of the Sixth Amendment as a basis of construing the situation like this one whereas Congress didn’t make clear or is not inconsiderably influenced by those merciful considerations on behalf of the defendant.

    Telford Taylor:

    There is language in the Johnson opinion which refers to being taken away from home and facilities for defense.

    I had always read that passage as I thought I must in the light of other decisions of the Court which you said time and time again that the policy here is a policy to try where the offense is committed in the vicinage of the offense if —

    Felix Frankfurter:

    The two are not inconsistent, Mr. Taylor.

    Telford Taylor:

    The two are not inconsistent.

    Felix Frankfurter:

    The two — the two considerations are not inconsistent.

    Telford Taylor:

    But the Court has said specifically that the residence does not play a part in the policy of the Sixth Amendment in House against Finkle years ago, and it’s been repeated in many other cases.

    There, it — however, if were to look residence, let me point this out too.

    Felix Frankfurter:

    That would have been a single — I mean House against Finkle was the conspiracy in great other facts.

    Telford Taylor:

    It did however say quite, the plea there was made that he was being taken away for residence.

    Felix Frankfurter:

    — all I’m suggesting is that the Sixth Amendment wasn’t concerned with the abstract problems of locating the offense.

    It was concerned with protection of a defendant or the accused.

    Telford Taylor:

    By locating him for trial where he committed the offence and not somewhere else.

    Felix Frankfurter:

    Right.

    Telford Taylor:

    It seems to me the way they were seeking to protect him was —

    Felix Frankfurter:

    Possibly —

    Telford Taylor:

    — by giving him a right to trial where it was committed.

    Felix Frankfurter:

    Of course, it — that it isn’t rationally arguable that the offense even in part was committed in more than one locus, there’s no problem.

    The problem arises because typically here, as here in the Johnson case, you had an initiation.

    I’m not — not talking about technical issues.

    Telford Taylor:

    I understand.

    Felix Frankfurter:

    You had a stretch of events.

    Telford Taylor:

    In the case of this petitioner, that would have worked out if we came to the other conclusion to try him at his residence.

    But may I point out, Mr. Justice Frankfurter that what was done here was the affidavits of all the union officers were assembled in Denver and mailed to Washington.

    Now, as the records shows, other union officers lived all over the country so this — if you apply this principle based on mailing, you might in the case of this petitioner, happened in his residence.

    But in the case of most of the other people that filed, you wouldn’t have at all.

    They would have been living in Cleveland or Connecticut, made their affidavit, mailed it to Denver then it would’ve been mailed in from there.

    So, we’re going to make a triple venue and have them where they live and where the union mails it in and in Washington.

    Felix Frankfurter:

    Well —

    Telford Taylor:

    I’m supposing not —

    Felix Frankfurter:

    — living as such where that — the residence of the defendant as such —

    Telford Taylor:

    He has nothing to make.

    Felix Frankfurter:

    — is irrelevant.

    Telford Taylor:

    That is my point.

    Felix Frankfurter:

    The evidence as such but the relation of some share in the outward event which constitutes, which has some part in the ultimate crime, some part.

    I mean, if it isn’t filed in the District of Columbia and reached in the District Columbia then certainly, speaking as a matter of phenomenon, a natural phenomenon that something takes place outside of the District.

    Telford Taylor:

    We have all the policy considerations at work here that seem to me to bear upon the problem you raised.

    And that is that if we do begin to establish additional venues based on beginnings and initiations of offenses where the statutory impact is something else.

    The — the certainty in the field of venue is going to be very much reduced.

    Now, the Government of course likes multiple venue.

    The Government uses multiple venue theories to espouse inconsistent positions on this.

    We referred in our brief to the Kashin (ph) case, recently decided in the Second Circuit.

    Telford Taylor:

    The decision there itself is not strictly relevant but there, the offense was false prospectuses under the Securities Act which we’re going to — to which the congressional impact attaches if the mails or interstate commerce are used.

    There was no question down there that the whole — that the prospectuses were all prepared and utilized widely in Louisiana, I think it was.

    But there was the — the first mailing was in New York and the Government said no offense until it hits the channels of interstate commerce in New York.

    So, the Government, if you give them wide option then multiple venue can pick around at this thing.

    It seems to me that the real policy here —

    Felix Frankfurter:

    If you get us the —

    Telford Taylor:

    — is in favor of certainty.

    Felix Frankfurter:

    May I suggest, you cannot escape that in a number of offenses.

    You cannot escape that in conspiracy charges.

    You cannot escape it in violations under the Interstate Commerce Act.

    And there, I suggest that — I quite agree with you, the Government likes to pick the — and sometimes not so to me —

    Telford Taylor:

    No.

    Felix Frankfurter:

    — a very desirable reason, picketing one venue rather another.

    There are always the additional considerations or namely, that there is a discretionary problem on the trial judge where the defendant operates to serve as the defendant was so involved to transport to another place.

    Telford Taylor:

    The cases you mentioned, Justice Frankfurter conspiracy and continuing offense in interstate congress are the very ones for which 3237 was devised.

    It was born, as I said, with the conspiracy statute.

    It has been applied most frequently in cases where the use of the mails or of interstate commerce was the essence of the offense.

    And you — as you rightly say, those are cases where we cannot avoid the problem.

    But we can avoid it in cases where the offense is fixed and the Court in the Lombardo case says, “We will fix it,” where the filing occurs and if it’s required to there and nowhere else.

    And that has been pretty well followed and this problem had been laid to rest in the lower federal courts —

    Felix Frankfurter:

    Now, remember that Mr. Justice Homes —

    Telford Taylor:

    — until this one.

    Felix Frankfurter:

    — he said it in the conspiracy cases.

    It would be — he thought it was so unfair.

    In other words, he fastened on fairness or unfairness of the defendant.

    Telford Taylor:

    There, you had a particular problem involving whether a conspiracy is complete before the overt acts come and the difference of opinion in the Court which lies and revolving around that.

    There again, 3237 was meant for conspiracy cases.

    It wasn’t meant for this kind of case to submit and that the established rule that we find in Lombardo seems to me gives us certainty.

    It has been the question that’s pretty well trashed out and if you’ll now overturn that principle here, it seems to me, the result will not be good from the standpoint of general administration.

    Hugo L. Black:

    Do you say, any federal statute which would’ve been violated had this man simply filed — made this affidavit, swore to it, kept it in Denver.

    Telford Taylor:

    No, no.

    Not — no, Mr. Justice Black, not at all, not at all.

    Now, I have taken perhaps more time than I meant on venue and I would like to proceed to the problems waiting for trial.

    And at this point, I think I should recur briefly to the evidence, just to give the Court a very brief picture of what the evidence here was like bearing in mind that there was no problem about his having been a Communist.

    This was admitted and that there is no doubt that he made a public statement of resignation.

    The test — the evidence against him are consisted four main parts.

    There was a lot of testimony about what he had done before his resignation as a Communist.

    This really wasn’t germane in our view because there was no dispute about his prior status of a Communist.

    Then there was expert testimony of an interesting and unusual kind.

    There was expert testimony that the Communist Party has a policy that no one can resign from it, they can only be expelled.

    That testimony was admitted over sharp objection and is one of the things that I will be coming to in my trial points.

    There was also the resignation statement itself which indicated that the petitioner continue to have a sympathetic belief in communism as a doctrine, although he didn’t say quite specifically that he was resigning from the Party.

    All of that that I have referred to so far was evidence about things that happened two years or more before his first affidavit was filed.

    And the only evidence which is a total contemporaneous with the affidavits themselves is the evidence of approximately six conversations that Travis is supposed to have had with two of the Government’s three witnesses.

    There were just three prosecution witnesses and two of them testified chiefly about these conversations that took place in 1951, 1952 and 1953 which the Government regards as in the nature of admissions of continued membership.

    Those, therefore, are of crucial importance, those — that testimony about those conversations.

    And it is in the light of that kind of a record that we have to approach these questions waiting to trial.

    The first one of which I want to take up being the matter of the grand jury minutes because the defendant here did request access to the grand jury testimony of these three prosecution witnesses.

    And there was particular need for it here because of the fact that the crucial and only contemporaneous testimony against him related to these conversations that he’d had with the two witnesses at which other people — wherein no other people were present.

    So these were uncorroborated conversations.

    Now, this case is different in two very essential respects from Pittsburgh Plate Glass.

    Firstly, in that case as the Court’s opinion pointed out, the defendant was asserting what he — what the Court referred to as an absolute right to the testimony under the Jencks decision.

    Here, we have no such assertion of absolute right.

    The petitioner appealed to the trial court’s discretion.

    There are long colloquies in the record in which petitioner’s counsel is pointing out, the crucial nature of these conversations.

    They need to check the grand jury testimony to see if they were described in the same manner before the grand jury as he had in Court.

    And the matter was thrashed over very fully with all kinds of appeals to the trial court’s discretion.

    The second difference is that the petitioner here did what he did not do in the Pittsburgh Plate Glass.

    That is that after he had been refused when he requested access to the minutes.

    He then said, “Alright, if you won’t give them to me, will the trial court please take them and see if they contain anything which should be turned over to me for impeachment purposes.”

    Telford Taylor:

    In other words, the request was made and that question as Mr. Justice Clark always say in the Pittsburg Plate Glass cases, it’s here now.

    There is no doubt that in the second circuit, petitioner’s request for grand jury minutes would have been honored almost automatically.

    Indeed it is probable that it would have never arisen because in the Southern District of New York, the Government counsel no longer seem to have an automatic opposition, turning testimony over.

    At — at the time of Pittsburg Plate Glass, there had been one Second Circuit decision to spangle that case referred to in there.

    Since that time, there’s been a whole series of Second Circuit decisions in which where you have a witness whose testimony about the thing in light of conversation is important and where the particular words he uses are important.

    And where the defendant says that, “We would like the minutes examined to see whether this thing was described in the same way to the grand jury,” the testimony is made available.

    It was first produced in Camera and then made available to the defense.

    The most recent such decision is not yet reported, the Hernandez case, decided on December — in August of this year.

    And that case cites all the previous Second Circuit decisions.

    Now, may I just stress again that there was a special need for this testimony here.

    The — the contemporaneous evidence was all these uncorroborated conversations and the wording was important, the credibility of the witness was important.

    If the witness wasn’t making it up out of ballpark, he still might be embroidering or varying these conversations in a way that made it look more as if the petitioner had retained his clandestine membership.

    The defense first made rather general request for grand jury testimony and then when these were denied, they were limited down, limited down, limited down, and then upward request for just two of these conversations.

    So, the requests were made with particularity.

    Nonetheless, they were denied.

    I would like to — the next to point I am going to embark and will take so long, Mr. Chief Justice, shall I go ahead?

    Earl Warren:

    We’ve arrived at recess time.