Petitioner challenges his 1955 conviction under 18 U.S.C. § 1001
for falsely and fraudulently denying affiliation with the Communist
Party in an affidavit he filed with the National Labor Relations
Board (NLRB), pursuant to § 9(h) of the National Labor Relations
Act. Section 9(h), later repealed, provided that a union could not
draw upon the jurisdiction of the NLRB unless each union officer
filed with the NLRB an affidavit stating "that he is not a member
of the Communist Party or affiliated with such party. . . ." The
District Court set aside the conviction. It distinguished
Dennis v. United States, 384 U. S. 855;
decided that § 9(h), which had been upheld in
American
Communications Assn. v. Douds, 339 U.
S. 382, could no longer be thought constitutionally
valid, particularly in light of
United States v. Brown,
381 U. S. 437, and
concluded that the Government had no right to ask the questions
which petitioner answered falsely in his affidavit. The Court of
Appeals reversed, since it found "no significant differences"
between this case and
Dennis, supra, and therefore thought
it unnecessary to consider the constitutionality of § 9(h).
Held:
1. The constitutionality of § 9(h) is legally irrelevant to the
validity of petitioner's conviction under 18 U.S.C. § 1001, which
punishes the making of fraudulent statements to the Government,
Dennis, supra, because none of the elements of proof for
petitioner's conviction under § 1001 has been shown to depend on
the validity of § 9(h). Pp.
396 U. S.
68-72.
(a) The statutory term "affiliated," which petitioner claims is
vague and overbroad and which he suggests he misunderstood, was
narrowly defined by the trial court in an instruction later
explicitly approved by this Court, and the jury's verdict reflects
a determination that petitioner's false statement was knowingly and
deliberately made. Pp.
396 U. S.
69-70.
(b) Petitioner's false statement was made in a "matter within
the jurisdiction" of the NLRB, as the NLRB received the affidavit
pursuant to explicit statutory authority, which, only a short time
before, had been upheld as constitutional in
Douds, supra.
Pp.
396 U. S.
70-71.
Page 396 U. S. 65
2.
Dennis, supra, negates any general principle that a
citizen has a privilege to answer fraudulently a question that the
Government should not have asked. P.
396 U. S.
72.
3. This case is not distinguishable from
Dennis, supra,
which is followed here. Pp.
396 U. S.
72-73.
403 F.2d 340, affirmed.
MR. JUSTICE HARLAN delivered the opinion of the Court.
Petitioner asks this Court to set aside his 1955 jury conviction
under 18 U.S.C. § 1001 [
Footnote
1] for having falsely and fraudulently denied affiliation with
the Communist Party in an affidavit he had filed with the National
Labor Relations Board pursuant to § 9(h) of the National Labor
Relations Act, as amended by the Taft-Hartley Act. [
Footnote 2] This collateral proceeding
was
Page 396 U. S. 66
brought in the District Court for the Northern District of
California in 1967, some 10 years after his original conviction was
upheld over a variety of challenges on direct review. [
Footnote 3] The District Court
distinguished
Dennis v. United States, 384 U.
S. 855 (1966), and decided that § 9(h), which had been
upheld in
American Communications Assn. v. Douds,
339 U. S. 382
(1950), could no longer be thought constitutionally valid,
particularly in light of
United States v. Brown,
381 U. S. 437
(1965). Having concluded that the Government had no right to ask
the questions which petitioner answered falsely in his affidavit,
the District Court ruled that petitioner's conviction under § 1001
should be "without effect." It therefore set aside petitioner's
conviction and discharged his parole (unreported opinion).
[
Footnote 4]
On the Government's appeal, the Ninth Circuit reversed because
it found "no significant differences" between this case and
Dennis, and it therefore thought it unnecessary to
consider the constitutionality of § 9(h). 403 F.2d 340 (1968). We
granted certiorari, 393 U.S. 1079 (1969), and we now affirm.
Page 396 U. S. 67
I
Petitioner bottoms his claim to relief on asserted
constitutional deficiencies of § 9(h) of the National Labor
Relations Act, enacted by Congress in 1947 out of concern that
Communist Party influence on union officers created the risk of
"political strikes,"
see American Communications Assn. v.
Douds, 339 U.S. at
339 U. S.
387-389. Under § 9(h), a union could participate in
representation proceedings conducted by the NLRB or utilize the
Board's machinery to protest employer unfair labor practices only
if each of the union's officers had filed a "non-Communist"
affidavit.
See n 2,
supra. Petitioner filed such an affidavit in 1951, and his
subsequent conviction under § 1001 was based on a jury's
determination that petitioner had knowingly and willfully lied in
his affidavit by denying affiliation with the Communist Party.
[
Footnote 5] About one year
before petitioner filed the false affidavit, this Court had upheld
§ 9(h) after considering a variety of asserted constitutional
deficiencies,
American Communications Assn. v. Douds,
supra. However, in 1959, Congress replaced § 9(h) with a
provision that simply made it a crime for one who was or had
recently been a Communist Party member to be a union officer,
[
Footnote 6] and this successor
statute was subsequently held unconstitutional as a bill of
attainder,
United States v. Brown, supra. Relying
primarily on
Brown, petitioner argues that § 9(h) was also
a bill of attainder, prohibited by Art. I, § 9, cl. 3, of the
Constitution. Petitioner also argues that the statute abridged
First Amendment rights of speech, assembly, and association, and
was so vague as
Page 396 U. S. 68
to offend the Due Process Clause of the Fifth Amendment. We do
not decide whether § 9(h) -- now repealed for over 10 years --
would today pass constitutional muster, and whether
Douds
would be reaffirmed. Guided by
Dennis v. United States,
supra, we hold that the question of whether § 9(h) was
constitutional or not is legally irrelevant to the validity of
petitioner's conviction under § 1001, the general criminal
provision punishing the making of fraudulent statements to the
Government.
II
In
Dennis v. United States, 384 U.
S. 855 (1966), the petitioners had been convicted of a
conspiracy to obtain fraudulently the services of the National
Labor Relations Board by filing false affidavits in purported
satisfaction of the requirements of § 9(h). Those petitioners, like
the petitioner here, asked the Court to reverse
Douds and
hold § 9(h) invalid. Deciding that "the claimed invalidity of §
9(h) would be no defense to the crime of conspiracy charged in
[the] indictment," the Court refused in
Dennis to
"reconsider
Douds." 384 U.S. at
384 U. S. 867.
The Court, drawing on
United States v. Kapp, 302 U.
S. 214 (1937), and
Kay v. United States,
303 U. S. 1 (1938) ,
stated:
"The governing principle is that a claim of unconstitutionality
will not be heard to excuse a voluntary, deliberate and calculated
course of fraud and deceit. One who elects such a course as a means
of self-help may not escape the consequences by urging that his
conduct be excused because the statute which he sought to evade is
unconstitutional. This is a prosecution directed at petitioners'
fraud. It is not an action to enforce the statute claimed to be
unconstitutional."
384 U.S. at
384 U. S.
867.
We find the principle of
Dennis no less applicable in
the case before us. First, none of the elements of proof
Page 396 U. S. 69
necessary for petitioner's conviction under § 1001 has been
shown to depend on the validity of § 9(h). Petitioner suggests in
this collateral proceeding that, when he filed his affidavit, he
misunderstood the meaning of the statutory term "affiliated," a
word which he claims is unconstitutionally vague and overbroad. But
the trial court narrowly defined the term in an instruction
[
Footnote 7] later explicitly
approved by this Court in
Killian v. United States,
368 U. S. 231,
368 U. S.
254-258 (1961). Moreover, the jury's verdict reflects a
determination that petitioner's false statement was knowingly and
willfully made. This negates any claim that petitioner did not know
the falsity of his statement at the time it was made, or that it
was the product of an accident, honest inadvertence,
Page 396 U. S. 70
or duress. Insofar as petitioner in this collateral proceeding
attempts to suggest the contrary, [
Footnote 8] he is simply trying to impeach the jury's
verdict, upheld after careful review on direct appeal.
As another element of the offense, § 1001 requires that the
false statement be made "in any matter within the jurisdiction of
any department or agency of the United States." Petitioner argues
that, if § 9(h) was unconstitutional, then the affidavit
requirement was not within the "jurisdiction" of the Board, and
therefore the false statement was not punishable under § 1001.
Because there is a valid legislative interest in protecting the
integrity of official inquiries,
see United States v.
Bramblett, 348 U. S. 503
(1955);
United States v. Gilliland, 312 U. S.
86,
312 U. S. 93
(1941), [
Footnote 9] we think
the term "jurisdiction" should not be given a narrow or technical
meaning for purposes of § 1001,
Ogden v. United States,
303 F.2d
Page 396 U. S. 71
724, 742-743 (C.A. 9th Cir.1962);
United States v.
Adler, 380 F.2d 917, 921-22 (C.A.2d Cir.1967). A statutory
basis for an agency's request for information provides jurisdiction
enough to punish fraudulent statements under § 1001. [
Footnote 10]
In this case, the Board received petitioner's affidavit pursuant
to explicit statutory authority which, only a short time before,
had been upheld as constitutional in
Douds. Given that,
under § 9(h), the Board's "power to act on union charges [was]
conditioned on filing of the necessary affidavits,"
Leedom v.
International Union of Mine Workers, 352 U.
S. 145,
352 U. S.
148-149 (1956), the Board certainly had the apparent
authority, granted by statute, necessary for purposes of § 1001.
Thus, we hold that, irrespective of whether
Douds would be
reaffirmed today, petitioner made a false statement in a "matter
within the jurisdiction" of the Board. [
Footnote 11]
Page 396 U. S. 72
Notwithstanding the fact that the Government has proved the
elements necessary for a conviction under § 1001, the petitioner
would have us say that the invalidity of § 9(h) would provide a
defense to his conviction. But, after
Dennis, it cannot be
thought that, as a general principle of our law, a citizen has a
privilege to answer fraudulently a question that the Government
should not have asked. Our legal system provides methods for
challenging the Government's right to ask questions [
Footnote 12] -- lying is not one of them. A
citizen may decline to answer the question, or answer it honestly,
but he cannot with impunity knowingly and willfully answer with a
falsehood.
III
Petitioner argues, and the District Court also found, that
Dennis is distinguishable, and that its teachings
therefore have no relevance in this instance. The first distinction
offered is that
Dennis involved a conviction for
conspiracy, whereas this petitioner was prosecuted under § 1001 for
individually making a false statement. [
Footnote 13] We see nothing in that fact that makes
Dennis less applicable in this instance. The cases are
indeed very similar, in that both involve the use of false
affidavits
"to circumvent the law and not to challenge it --
Page 396 U. S. 73
a purported compliance with [§ 9(h) was] designed to avoid the
courts, not to invoke their jurisdiction."
384 U.S. at
384 U. S.
865.
Petitioner also attempts to distinguish
Dennis on the
ground that the behavior involved in the present case was less
culpable than that found punishable in
Dennis, and that
this petitioner, unlike the petitioners in
Dennis, did not
"flout" the law, for he had "every right to believe" that he had
not perjured himself. If, apart from attempting to impeach the
jury's verdict,
see n
8,
supra, petitioner is suggesting that the principles of
Dennis depend on an assessment of moral culpability beyond
the jury's determination of guilt, he simply misconceives the basis
of
Dennis. Dennis can hardly be read as
instructing courts to impose an extra punishment on a defendant
found to have been dishonest by refusing to consider a
constitutional argument that is legally relevant to his defense.
Dennis refused to reconsider
Douds because of the
legal conclusion that the constitutionality of § 9(h) was not
relevant to the validity of the conspiracy prosecution.
Petitioner finally contends that the Court should not follow
Dennis, because "its strictures . . . have no relevance at
all to post-conviction proceedings." Of course, federal courts have
jurisdiction to consider constitutional claims on collateral
review, but a substantive defense that is not legally relevant on
direct review becomes no more relevant because asserted on
collateral review.
The judgment of the Court of Appeals is
Affirmed.
[
Footnote 1]
Title 18 U.S.C. § 1001 provides:
"Whoever, in any matter within the jurisdiction of any
department or agency of the United States knowingly and willfully
falsifies, conceals or covers up by any trick, scheme, or device a
material fact, or makes any false, fictitious or fraudulent
statements or representations, or makes or uses any false writing
or document knowing the same to contain any false, fictitious or
fraudulent statement or entry, shall be fined not more than $10,000
or imprisoned not more than five years, or both."
[
Footnote 2]
Until repealed in 1959, § 9(h) of the National Labor Relations
Act, 61 Stat. 146, provided that no labor organization could draw
upon the jurisdiction of the National Labor Relations Board unless
each officer of such organization had filed with the Board an
affidavit stating
"that he is not a member of the Communist Party or affiliated
with such party, and that he does not believe in, and is not a
member of or supports any organization that believes in or teaches,
the overthrow of the United States Government by force or by any
illegal or unconstitutional methods. The provisions of [§§ 286,
287, 1001, 1022, and 1023 of Title 18] shall be applicable in
respect to such affidavits."
[
Footnote 3]
See Bryson v. United States, 238 F.2d 657 (C.A. 9th
Cir.1956),
rehearing denied, 243 F.2d 837,
cert.
denied, 355 U.S. 817 (1957). After direct review, but before
initiating this proceeding, petitioner's application for reduction
of sentence was rejected,
Bryson v. United States, 265
F.2d 9 (C.A. 9th Cir.),
cert. denied, 360 U.S. 919
(1959)
[
Footnote 4]
After his conviction, petitioner had been sentenced to five
years' imprisonment and a $10,000 fine. He had served almost two
years of his sentence before being paroled in December, 1959.
Because only $2,000 of his fine had been paid, however, petitioner
had not yet been discharged from his parole status when he
commenced the present proceedings in 1967.
[
Footnote 5]
The jury acquitted petitioner of the separate charge that he had
fraudulently denied that he was a "member" of the Communist
Party.
[
Footnote 6]
Section 504, Labor-Management Reporting and Disclosure Act of
1959, 73 Stat. 536, 29 U.S.C. § 504.
[
Footnote 7]
The instructions of the court on affiliation were:
"The verb 'affiliated,' as used in the Second Count of the
indictment, means a relationship short of and less than membership
in the Communist Party, but more than that of mere sympathy for the
aims and objectives of the Communist Party."
"A person may be found to be 'affiliated' with an organization,
even though not a member, when there is shown to be a close working
alliance or association between him and the organization, together
with a mutual understanding or recognition that the organization
can rely and depend upon him to cooperate with it, and to work for
its benefit, for an indefinite future period upon a fairly
permanent basis."
"Briefly stated, affiliation, as charged in the Second Count of
the indictment, means a relationship which is equivalent or equal
to that of membership in all but name."
"I tried to think of some analogy which would make that possibly
clearer to you, and the best one I can think of -- we have all in
our experience probably heard of a man and woman who live together
but are not married. They are husband and wife in everything but
name only. You have probably heard that expression. A person, to be
affiliated with the Communist Party within the meaning of that term
as used in the Second Count of the indictment, must be a member in
every sense and stand in the relationship of a member in every
sense but that of the mere technicality of being a member, -- in
everything but name."
Bryson v. United States, 238 F.2d at 664 n. 8.
[
Footnote 8]
Petitioner claims that he did not know that his relationship
with the Communist Party amounted to affiliation, and that he
signed the affidavit submitted to the Board after counsel had
advised him that he was not at the time "affiliated." This is
apparently the same claim he made in an affidavit prepared in
connection with his motion to reduce his sentence. At his trial,
however, petitioner did not take the stand, and his unproved
allegations are not even found in the record upon which the jury
found him guilty.
[
Footnote 9]
In concluding that the Board had no jurisdiction for purposes of
§ 1001, the District Court reasoned that, if § 9(h) were
unconstitutional, the Board was not performing one of its
"authorized functions," a phrase taken from
United States v.
Gilliland, 312 U.S. at
312 U. S. 93. By
taking
Gilliland's unelaborated reference to "authorized
functions" out of context, the District Court gave that phrase a
meaning both unsupported by the holding and inconsistent with the
spirit of that decision. The holding of
Gilliland that
there need be no "pecuniary . . . loss to the government" in order
to punish fraudulent behavior was based on the Court's concern that
the statute be given a broad reading in order to protect the
Government "from the perversion which might result from the
deceptive practices described,"
ibid.
[
Footnote 10]
We do not read previous decisions of this Court, in contexts
other than prosecutions under § 1001,
e.g., Williamson v.
United States, 207 U. S. 425,
207 U. S.
453-462 (1908);
United States v. George,
228 U. S. 14
(1913);
Viereck v. United States, 318 U.
S. 236 (1943);
Christofel v. United States,
338 U. S. 84
(1949), as inconsistent with this conclusion. Petitioner has cited
no cases of this Court, and we know of none, in which there existed
statutory authority to require a statement, but the Court
nevertheless held that a prosecution for a false answer could not
be maintained because the statute was later determined invalid.
Friedman v. United States, 374 F.2d 363 (C.A. 8th
Cir.1967), cited by the dissent, held that a false and fraudulent
statement willfully and knowingly given to the FBI in order "to
initiate a federal prosecution under the Civil Rights Laws" was not
"in any matter within the jurisdiction of any department or agency"
for purposes of § 1001, because the FBI
"had no power to adjudicate rights, establish binding
regulations, compel the action, or finally dispose of the problem
giving rise to the inquiry."
Id. at 365, 368. We have no occasion in the present
context either to approve or disapprove
Friedman's
holding.
[
Footnote 11]
We have no need to decide in this case whether jurisdiction
would exist under § 1001 if, at the time the request for
information was made, a court had already authoritatively
determined that the statutory basis was invalid.
Cf. United
States v. Kapp, supra.
[
Footnote 12]
For two examples of how the constitutional validity of § 9(h)
could be raised,
see American Communications Assn. v.
Douds, 339 U.S. at
339 U. S.
385-387.
[
Footnote 13]
In support of the contention that
Dennis was meant to
apply only to conspiracy charges, and not simply to § 1001
violations, both the District Court and petitioner here quote the
language in
Dennis to the effect that: "It is the entire
conspiracy, and not merely the filing of false affidavits, which is
the gravamen of the charge." 384 U.S. at
384 U. S. 860.
That language, however, was addressed to the threshold question
that the Court faced in
Dennis, namely, whether the facts
alleged in the indictment were sufficient to warrant a conspiracy
charge, which requires elements additional to those necessary for a
violation of § 1001.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
dissenting.
This conviction was founded on an indictment which in the words
of 18 U.S.C. § 1001 makes it a crime to file "any false, fictitious
or fraudulent statements or
Page 396 U. S. 74
representations" in any matter "within the jurisdiction" of the
National Labor Relations Board. Former § 9(h) of the Labor
Management Relations Act, 1947, 29 U.S.C. § 159(h) (1958 ed.),
barred a union from using the services of the Board unless and
until each of the union's officers had filed his affidavit that he
was neither a member of nor affiliated with the Communist Party.
The basic question in this proceeding under 28 U.S.C. § 2255 is
whether, constitutionally speaking, it was "within the
jurisdiction" of the Board to require the filing of those
affidavits.
Obviously the power of Congress to authorize prosecution for
crimes of this character must rest on an interference with or
obstruction of some "lawful" function of the agency in question.
See United States v. Johnson, 383 U.
S. 169,
383 U. S. 172.
Apart from constitutional problems, the question of what is "within
the jurisdiction" of an agency should be construed in a
restrictive, not an expansive, way. The Court of Appeals for the
Eighth Circuit so held in
Friedman v. United States, 374
F.2d 363, when it ruled that telling a falsehood to the FBI in its
role as "investigator" was not "within the jurisdiction" of that
agency in the sense of § 1001. If it were, then telling lies to
agencies would carry heavier penalties than committing perjury in
court. 374 F.2d at 367.
The words "within the jurisdiction" must be read not only with
the common sense approach of
Friedman, but also in light
of our constitutional regime. One of many mandates imposed on
Congress by the Constitution is the prohibition against bills of
attainder. Art. I, § 9.
It was said in
American Communications Assn. v. Douds,
339 U. S. 382,
that § 9(h) was not a bill of attainder. The opinion was by Mr.
Chief Justice Vinson, and it was called an "opinion of the Court."
It was, however, a six-man Court, and the ruling on the bill of
Page 396 U. S. 75
attainder point was in Part VII of the opinion. Mr. Justice
Frankfurter concurred in the opinion "except as to Part VII."
Id. at
339 U. S. 415.
Mr. Justice Jackson concurred in part and dissented in part.
Id. at
339 U. S. 422.
Section 9(h) was vulnerable, in his view, because it proscribed
opinion or belief which had not manifested itself "in any overt
act."
Id. at
339 U. S. 436.
He said:
"Attempts of the courts to fathom modern political meditations
of an accused would be as futile and mischievous as the efforts in
the infamous heresy trials of old to fathom religious beliefs."
Id. at
339 U. S.
437.
"[E]fforts to weed erroneous beliefs from the minds of men have
always been supported by the argument which the Court invokes
today, that beliefs are springs to action, that evil thoughts tend
to become forbidden deeds. Probably so. But if power to forbid acts
includes power to forbid contemplating them, then the power of
government over beliefs is as unlimited as its power over conduct,
and the way is open to force disclosure of attitudes on all manner
of social, economic, moral and political issues."
Id. at
339 U. S.
438.
From this opinion, I conclude that Mr. Justice Jackson did not
reach the bill of attainder point in Mr. Chief Justice Vinson's
opinion. And MR. JUSTICE BLACK dissented.
Id. at
339 U. S.
445.
So I conclude that no more than three members of the Court
(Vinson, C.J., and Reed and Burton, JJ.) ever held that § 9(h) was
constitutional against the challenge that it was a bill of
attainder.
In
United States v. Brown, 381 U.
S. 437, we held that the successor of § 9(h), § 504 of
the Labor-Management Reporting and Disclosure Act of 1959, 29
U.S.C. § 504, was a bill of attainder. It made it a crime for a
member of the Communist Party to serve as an officer or employee
(except in clerical or custodial positions)
Page 396 U. S. 76
of a labor union. The Vinson opinion in
Douds upheld §
9(h) on the basis that it was "intended to prevent future action,
rather than to punish pas action." 339 U.S. at
339 U. S. 414.
In
Brown, it was likewise argued that the statute there
involved was "preventive, rather than retributive, in purpose." 381
U.S. at
381 U. S. 457.
That view was rejected. The question, we said, was whether § 504
inflicted "punishment," which, we pointed out, "serves several
purposes: retributive, rehabilitative, deterrent -- and
preventive."
Id. at
381 U. S. 458.
The dissenters -- Mr. Justice Clark, MR. JUSTICE HARLAN, MR.
JUSTICE STEWART, and MR. JUSTICE WHITE -- concluded that
Douds was "obviously overruled."
Id. at
381 U. S.
464-465. Whatever may be said technically about any
remaining vitality of the
Douds case, it obviously belongs
to a discredited regime, though, like
Plessy v. Ferguson,
163 U. S. 537, it
has never been officially overruled.
The rule invoked by the Court to deny petitioner the opportunity
to challenge that bill of attainder in this proceeding is, as
stated by MR. JUSTICE BLACK in his separate opinion in
Dennis
v. United States, 384 U. S. 855,
384 U. S. 878,
"a new court-made doctrine." As he pointed out in that opinion, the
prior decisions of this Court relied on to deny the defense of
unconstitutionality of a federal law were instances of false claims
for benefits to which the complainant had "no possible right,
whether the statute was constitutional or unconstitutional."
Ibid.
In this case, however, Congress installed an unconstitutional
barrier to receipt of the benefits administered by the Labor Board.
Since § 9(h), in light of
Brown, was plainly
unconstitutional, petitioner's union was entitled to those services
without the filing of any affidavit. Therefore, unlike prior cases,
the United States had been deprived of nothing and defrauded of
nothing by the filing of any affidavit or other form of claim.
I would reverse the judgment below.