1. Where the charge of the trial court in a criminal prosecution
for violation of the Act of June 8, 1938, as amended by the Act of
August 7, 1939, authorized the jury to return a verdict of guilty
if it found that the defendant had willfully failed to disclose
activities which were wholly on his own behalf, the conviction can
be sustained only if the failure to disclose such activities was a
criminal offense, even though the evidence might warrant a finding
that all of the defendant's activities were in fact in behalf of
foreign principals. P.
318 U. S.
240.
2. The Act of June 8, 1938, as amended by the Act of August 7,
1939,
held not to require, or authorize the Secretary of
State to require, registrants to make any statement of their
activities other than those in which they have engaged "as agent"
of a foreign principal. P.
318 U. S. 243.
3. The unambiguous words of a criminal statute are not to be
altered by judicial construction so as to punish one not otherwise
within its reach, however deserving of punishment his conduct may
seem. P.
318 U. S.
243.
4. The application of the amendatory Act of April 29, 1942, to
impose upon the defendant in this case a duty which the words of
the prior Act plainly exclude cannot be justified by denominating
the amendatory legislation as clarifying or declaratory. P.
318 U. S.
247.
5. The defendant's right to a fair trial in this case was
prejudiced by the conduct of the prosecutor, who, in his closing
remarks to the jury, indulged in an appeal wholly irrelevant to any
facts or issues in the case, and the only purpose and effect of
which could have been to arouse passion and prejudice. Such remarks
should have been stopped by the trial judge
sua sponte. P.
318 U. S.
247.
6. It is as much the duty of the prosecutor to refrain from
improper methods calculated to produce a wrongful conviction as it
is to use every legitimate means to bring about a just one. P.
318 U. S.
248.
130 F.2d 945 reversed.
Page 318 U. S. 237
Certiorari, 317 U.S. 618, to review the affirmance of a
conviction for violation of a federal Act requiring the
registration of certain agents of foreign principals.
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
Petitioner was convicted on three counts of an indictment, each
charging him with the willful omission to state a material fact
required to be stated in a supplemental registration statement
filed by him with the Secretary of State, in violation of the penal
provisions of the Act of June 8, 1938, 52 Stat. 631, as amended by
the Act of August 7, 1939, 53 Stat. 1244, requiring the
registration of certain agents of foreign principals. The question
decisive of petitioner's challenge to the validity of his
conviction is whether the statute or any authorized regulation of
the Secretary required the statement which petitioner omitted to
make.
Section 2 of the Act of 1938, as amended, provides that every
person acting as "agent of a foreign principal," either as public
relations counsel, publicity agent or representative, with
exceptions not now relevant, must file with the Secretary of State
a registration statement, on a form prescribed by the Secretary,
containing certain specified items of information. These include a
copy of the registrant's contract with his principal, or a
statement of its terms and conditions if oral, the compensation to
be paid under the contract, and the names of all who have
contributed or promised to contribute to the compensation.
Page 318 U. S. 238
Beyond the terms and conditions of the registrant's contracts
with foreign principals, the statute made no requirement that the
original registration statement contain any information as to the
registrant's services or activities, either in performance of his
contract of employment or otherwise.
By § 3, every registrant is required to file at the end of each
six months' period, following his original registration, a
supplemental statement
"on a form prescribed by the Secretary, which shall set forth
with respect to such preceding six months' period -- (a) Such facts
as may be necessary to make the information required under section
2 hereof accurate and current with respect to such period,"
and
"(c) A statement containing such details required under this Act
as the Secretary shall fix, of the activities of such person as
agent of a foreign principal during such six months' period."
And, by § 6, "[t]he Secretary is authorized and directed to
prescribe such rules, regulations, and forms as may be necessary to
carry out this Act." Section 5 imposes penal sanctions upon
"any person who willfully fails to file any statement required
to be filed under this Act, or in complying with the provisions of
this Act, makes a false statement of a material fact, or willfully
omits to state any material fact required to be stated
therein."
In purported conformity to the statute, the Secretary, on
September 15, 1939, promulgated regulations and prescribed a form
of "Supplemental Registration Statement." Chapter IV, regulation
12, of the regulations provided:
"Agents of foreign principals who engage, whether or not on
behalf of their foreign principal, in activities not included among
the exceptions set forth in the act and regulations shall be
considered subject to the requirement of registration."
The prescribed form of Supplemental Registration Statement
directed the registrant to make a statement giving certain items of
information, No. 11 of
Page 318 U. S. 239
which was "Comprehensive statement of nature of business of
registrant."
The three counts of the indictment on which petitioner was
convicted charged that, in three successive supplemental
registration statements filed by him on April 23, 1940, October 25,
1940, and April 25, 1941, as the agent of German principals, he had
knowingly and willfully failed to disclose, in response to item 11,
which called for a "Comprehensive statement of nature of business
of registrant," numerous activities in which he had engaged during
the period covered by the supplemental registration statement. On
the trial, it appeared that petitioner, on September 26, 1939, had
registered as agent and United States correspondent for the
Munchner Neueste Nachrichten, a Munich newspaper, and had later
lodged with the State Department a copy of his contract, dated
September 27, 1939, as agent and editorial writer for the German
Library of Information, an agency of the German government, to do
editorial work in connection with "Facts in Review," a publication
of the Library. On March 17, 1941, petitioner registered his
contract, with a person associated with the Munich newspaper, to
act as agent for the publication in the United States of a book
"The One Hundred Families Who Rule Great Britain."
There was also evidence from which the jury could have found
that, during the eighteen months' period covered by petitioner's
three supplemental registration statements, and from August 3,
1940, he had controlled and financed Flanders Hall, a corporation
which published numerous books and pamphlets from manuscripts
furnished by petitioner; that it had also published other books
furnished by petitioner which purported to be English translations
of French or Dutch publications, or to have been compiled from
English sources, but which were in fact translations of German
books published by the
Page 318 U. S. 240
Deutsche Informationesstelle of Berlin. All were highly critical
of British foreign and colonial policy. During this period,
petitioner actively participated in the formation of the "Make
Europe Pay War Debts Committee," and the "Islands for War Debts
Committee," and made use of these organizations as a means of
distributing propaganda through the press and radio and under
Congressional frank. He also consulted with and was active in
writing speeches for various members of Congress, and in securing
distribution of the speeches under Congressional frank.
In making the statement required by item 11 in each of his three
supplemental registration statements, petitioner responded to the
request for a comprehensive statement of the nature of his business
by the single phrase "Author and journalist." He made no further
disclosure of his various activities during the period covered by
the supplemental registration statements.
When submitting the case to the jury, the trial court. at the
Government's request, charged that,
"if you find that the defendant engaged in the activities set
forth in the indictment, it is not necessary that you find that he
engaged in such activities on behalf of his foreign principal or
principals. It is sufficient if you find that he engaged in the
activities, whether on behalf of his foreign principal or
principals or on his own behalf."
On appropriate objection and exception to this instruction,
petitioner contended that, under the statute, he was not required
to disclose his activities on his own behalf, but only those for
foreign principals. The jury returned a verdict of guilty, the
judgment of conviction was affirmed by the Court of Appeals for the
District of Columbia, 130 F.2d 945, and we granted certiorari. 317
U.S. 618.
As the charge left the jury free to return a verdict of guilty
if it found that petitioner had willfully failed to disclose
activities which were wholly on his own behalf,
Page 318 U. S. 241
the conviction can be sustained only if the failure to disclose
such activities was a criminal offense. In its brief and on the
argument here, the Government accordingly conceded that -- even
though the evidence might warrant a jury's finding that all
petitioner's activities were in fact in behalf of his foreign
principals -- the conviction cannot stand if the charge was
erroneous.
See Williams v. North Carolina, 317 U.
S. 287,
317 U. S. 292;
Pierce v. United States, 314 U. S. 306,
314 U. S. 310.
We are thus brought to the question whether the statute,
supplemented by the regulations of the Secretary, required such
information to be given and imposed penal sanctions for
petitioner's willful failure to give it.
The Act of 1938 requiring registration of agents for foreign
principals was a new type of legislation adopted in the critical
period before the outbreak of the war. The general purpose of the
legislation was to identify agents of foreign principals who might
engage in subversive acts or in spreading foreign propaganda, and
to require them to make public record of the nature of their
employment. But the means adopted to accomplish that end are
defined by the statute itself, which, as will presently appear more
in detail, followed the recommendations of a House Committee which
had investigated foreign propaganda. These means included the
requirement of registration of agents for foreign principals --
with which it appears that petitioner complied -- and the
requirement that the registrant give certain information concerning
his activities as such agent.
One may be subjected to punishment for crime in the federal
courts only for the commission or omission of an act defined by
statute, or by regulation having legislative authority, and then
only if punishment is authorized by Congress.
United States v.
George, 228 U. S. 14,
228 U. S. 20-22;
Williamson v. United States, 207 U.
S. 425,
207 U. S. 453,
207 U. S. 462;
United States v. Standard
Brewery, 251 U.S.
Page 318 U. S. 242
210,
251 U. S.
219-220;
United States v. Eaton, 144 U.
S. 677;
United States v. Grimaud, 220 U.
S. 506;
United States v. Smull, 236 U.
S. 405;
In re Kollock, 165 U.
S. 526. Penal sanctions attach here for willful failure
to file a statement when required, or if the registrant "willfully
omits to state any material fact required to be stated." Unless the
statute, fairly read, demands the disclosure of the information
which petitioner failed to give, he cannot be subjected to the
statutory penalties.
It is to be noted that, although the statute required
registration of contracts already entered into at the time of its
adoption, it did not include, in its enumeration of information to
be given in the original registration statement, any disclosure of
a registrant's activities either under his agency contract or
otherwise. And the only mention in the statute of a statement of
such activities is in § 3(c), which directed that supplemental
registration statements contain "such details required under this
Act as the Secretary shall fix, of the activities of such persons
as agent of a foreign principal." The requirement of this section
is subject to two limitations. One is that the statement is to be
of such details of the registrant's activities "as the Secretary
shall fix;" the other is that the details are to be of activities
of the registrant "as agent of a foreign principal."
Neither limitation can be disregarded in determining what
statement the statute, and any regulation which it authorizes the
Secretary to promulgate, called on petitioner to make. The
Secretary's regulation 12 of chapter IV, already quoted, on which
the Government relies, plainly does not call for any statement of a
registrant's activities. It only declares that agents who engage in
activities "whether or not on behalf of their foreign principal"
are subject to registration. It requires no statement of their
activities, and adds nothing to the command of §§ 2 and 3 that all
agents of foreign principals shall
Page 318 U. S. 243
register, a requirement with which petitioner complied. Whatever
the undisclosed purpose of this regulation, a fair reading of it
would not indicate to a registrant that it required any statement
of his activities in any capacity.
But treating item 11 of the Supplemental Registration Statement
("Comprehensive statement of nature of business of registrant"),
prescribed by the Secretary, as a regulation fixing the details of
the registrant's activities which he is required to state, it must
either be taken as limited to a statement of his activities as
agent, to which § 3(c) alone refers, or to exceed the authority
conferred upon the Secretary by that section. In neither case does
the statute command, or authorize the Secretary to command,
registrants to make any statement of their activities other than
those in which they have engaged "as agent."
We cannot read that phrase as though it had been written "while
an agent" or "who is an agent." The unambiguous words of a statute
which imposes criminal penalties are not to be altered by judicial
construction so as to punish one not otherwise within its reach,
however deserving of punishment his conduct may seem. Nor is such
an alteration by construction aided by reference to § 6, which
directs the Secretary to prescribe rules and regulations "to carry
out this Act." For, as we have seen, the only provision of the Act
relating to statements of the registrant's activities is § 3(c),
which defines its own and the Secretary's limitations. Section 6
does not give to the Secretary any authority not to be found in the
Act, and especially not an authority which overrides the specific
limitations of § 3(c).
While Congress undoubtedly had a general purpose to regulate
agents of foreign principals in the public interest by directing
them to register and furnish such information as the Act
prescribed, we cannot add to its provisions other requirements
merely because we think
Page 318 U. S. 244
they might more successfully have effectuated that purpose. And
we find nothing in the legislative history of the Act to indicate
that anyone concerned in its adoption had any thought of requiring,
or authorizing the Secretary to require, more than a statement of
registrants' activities in behalf of their foreign principals.
In 1935, the McCormack committee, reporting on its Investigation
of Nazi and Other Propaganda, recommended:
"That the Congress should enact a statute requiring all
publicity, propaganda, or public relations agents or other agents
or agencies, who represent in this country any foreign government
or a foreign political party or foreign industrial or commercial
organization, to register with the Secretary of the United States,
and to state name and location of such foreign employer, the
character of the service to be rendered, and the amount of
compensation paid or to be paid therefor."
H.R.Rep. No. 153, 74th Cong., 1st Sess., p. 23. The House and
Senate committee reports, urging enactment of the McCormack bill
which became the 1938 Act, both declare that its purpose was to
carry out these recommendations of the McCormack committee.
H.R.Rep. No. 1381, 75th Cong., 1st Sess., p. 1; S.Rep. No. 1783,
75th Cong., 3d Sess., p. 2.
As may be seen from the text which we have quoted, these
recommendations were limited to the proposal of specific measures
for achieving the committee's general purpose, by requiring
disclosure of the identity of the agent and of his foreign
principal and the agent's relationship to the principal. They give
no hint of an intention to require agents to disclose activities
not in behalf of their foreign principals. And, in supporting the
amendatory legislation enacted in 1942, which, among other
additions, required registrants to make "a comprehensive statement
of the nature of registrant's business" (Act of April 29, 1942, §
2(a)(3)), Representative McCormack stated:
Page 318 U. S. 245
"The present bill strengthens the McCormack Act. I was
experimenting at that time, and, naturally, when you are
experimenting, you cannot go as far as you can after you have had
experience, and, in the light of the experience gained from the
administration of the McCormack Act, these amendments are necessary
to strengthen the Act for the best interests of our country."
88 Cong.Rec. Jan. 28, 1942, p. 830.
Even though the specific restriction of § 3(c) were due to
defective draftsmanship or to inadvertence, which hardly seems to
be the case, men are not subjected to criminal punishment because
their conduct offends our patriotic emotions or thwarts a general
purpose sought to be effected by specific commands which they have
not disobeyed. Nor are they to be held guilty of offenses which the
statutes have omitted, though by inadvertence, to define and
condemn. For the courts are without authority to repress evil save
as the law has proscribed it and then only according to law.
The Government argues that the statute would have been a
"half-way measure" had it not required, or at least authorized the
Secretary to require, the registrant to reveal the propaganda which
he put out other than on behalf of his foreign principal. Congress
itself has recognized that the legislation was in this sense a
halfway measure when, in 1942, the Act was amended so as to require
both original and supplemental registration statements to contain a
"comprehensive statement of the nature of registrant's business,"
together with other specifically required information as to the
character of registrants' activities. Act of April 29, 1942, §§
2(a)(3), 2(a)(4), 2(a)(8), 2(a)(10), 2(b).
The Senate Judiciary Committee, in recommending the 1942
legislation, said that
"the present Act is also improved by explicit enlargement of the
registration provisions so as to render them more efficacious for
disclosure and investigative
Page 318 U. S. 246
purposes."
S.Rep. No. 913, 77th Cong., 1st Sess., p. 9. The House Judiciary
Committee declared,
"the existing law is also believed to have been bolstered by
explicit enlargement of the registration provisions, so as to
render them more efficacious for disclosure and investigative
purposes. . . . All of these additions have been prompted by
experience in cases under the present act."
H.Rep. No. 1547, 77th Cong., 1st Sess., pp. 3, 4. [
Footnote 1]
Page 318 U. S. 247
While we find in the committee reports no mention of the
explicit restriction of the application of § 3(c) of the old Act to
the registrant's activities "as agent," the reports reveal a clear
purpose to make the registration requirements of the new Act extend
to all his activities. [
Footnote
2] We think that, in this respect, the new Act extends beyond
the old, and that the application,
ex post facto, of the
new to impose on petitioner a duty which the words of the old
plainly exclude is not to be justified by denominating the
amendment as clarifying or declaratory legislation.
As the case must be remanded to the district court for further
proceedings, we direct attention to conduct of the prosecuting
attorney which we think prejudiced petitioner's right to a fair
trial, and which, independently of the error for which we reverse,
might well have placed the judgment of conviction in jeopardy. In
his closing remarks to the jury, he indulged in an appeal wholly
irrelevant to any facts or issues in the case, the purpose and
effect of which could only have been to arouse passion and
prejudice. [
Footnote 3] The
trial judge overruled, as coming too late,
Page 318 U. S. 248
petitioner's objection first made in the course of the court's
charge to the jury.
At a time when passion and prejudice are heightened by emotions
stirred by our participation in a great war, we do not doubt that
these remarks addressed to the jury where highly prejudicial, and
that they were offensive to the dignity and good order with which
all proceedings in court should be conducted. We think that the
trial judge should have stopped counsel's discourse without waiting
for an objection.
"The United States Attorney is the representative not of an
ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its obligation
to govern at all, and whose interest therefore in a criminal
prosecution is not that it shall win a case, but that justice shall
be done. As such, he is, in a peculiar and very definite sense, the
servant of the law, the two-fold aim of which is that guilt shall
not escape or innocence suffer. He may prosecute with earnestness
and vigor -- indeed, he should do so. But, while he may strike hard
blows, he is not at liberty to strike foul ones. It is as much his
duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to bring
about a just one."
Berger v. United States, 295 U. S.
78,
295 U. S. 88.
Compare New York Central R. Co. v. Johnson, 279 U.
S. 310,
279 U. S.
316-318.
Reversed.
MR. JUSTICE JACKSON and MR. JUSTICE RUTLEDGE took no part in the
consideration or decision of this case.
Page 318 U. S. 249
[
Footnote 1]
This statement, which omitted to point out that the activities
referred to in Section 3(c) were the registrant's activities "as
agent," was copied verbatim from a statement which had been
submitted at a hearing on November 28, 1941, by the Chief of the
Special Defense Unit of the Department of Justice, who had a large
share in drafting the 1942 legislation.
See Hearings
before Subcommittee No. 4 of the House Committee on the Judiciary,
77th Cong., 1st Sess., on H.R. 6045, pp. 26, 12. There is some
language in his statement, also copied in the House Report at p. 4,
which may indicate that the Department of Justice thought that the
existing law required disclosure of "information about the nature
of the registrant's business," and that the provision in the 1942
law would be "declaratory." If such was its meaning, the statement
ignored and did not point out to the committee the explicit
limitation of Section 3(c) of the old Act to the registrant's
activities "as agent." Moreover, the statement was submitted by the
Department after the institution of the prosecution of this case
(the indictment was filed October 8, 1941). Hence, in some measure,
it may have represented the Department's view of the law, which we
think inadmissible, reflected in its requested charge to the jury
in this case.
A like indefiniteness as to the extent to which the new
legislation might be regarded as declaratory is suggested by the
letter of the Attorney General of November 24, 1941, recommending
the new legislation to the chairmen of the Senate and House
Judiciary Committees. The Attorney General, however, seems to have
thought that the provisions of the new bill would be declaratory
not of the provisions of the old Act, but of the "requirements of
the registration statement of foreign agents as now prescribed or
may be prescribed by the Secretary." Indication that the Attorney
General did not regard the Act, before the 1942 amendment, as
embodying this requirement of the Secretary is to be found in the
first paragraph of his letter:
"Under existing law, every person who is an agent of a foreign
principal is required to file a registration statement with the
Secretary of State, setting forth certain information disclosing
the nature of his relationship to such foreign principal."
Hearings,
supra, pp. 55-56; S.Rep. No. 913, 77th Cong.,
1st Sess., pp. 10-11.
[
Footnote 2]
The committee reports referred to are reports on H.R. 6269,
which was passed by Congress, but vetoed by the President because
our entrance into the war had made it necessary to alter the bill
in certain respects, not material here. A new bill, S. 2399,
containing such changes, became the Act of April 29, 1942.
See S.Rep. No. 1227, 77th Cong., 2d Sess.; H.R.Rep. No.
2038, 77th Cong., 2d Sess.
[
Footnote 3]
"In closing, let me remind you, ladies and gentlemen, that this
is war. This is war, harsh, cruel, murderous war. There are those
who, right at this very moment, are plotting your death and my
death; plotting our death and the death of our families because we
have committed no other crime than that we do not agree with their
ideas of persecution and concentration camps."
"This is war. It is a fight to the death. The American people
are relying upon you ladies and gentlemen for their protection
against this sort of a crime, just as much as they are relying upon
the protection of the men who man the guns in Bataan Peninsula, and
everywhere else. They are relying upon you ladies and gentlemen for
their protection. We are at war. You have a duty to perform
here."
"As a representative of your Government, I am calling upon every
one of you to do your duty."
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS concurs,
dissenting.
The petitioner, having registered with the Secretary of State as
a foreign agent, was convicted of willful refusal to inform the
Secretary of certain business activities in which he systematically
attempted to influence the political thought of this country on
behalf of Germany. The trial judge charged the jury not to convict
the petitioner unless he had actual knowledge that the Act and the
regulations required him to supply this information to the
Secretary, and that, having such knowledge, he had refused to
answer the Secretary's question with the "deliberate intention of
avoiding the requirement of the statute." The jury found, and it is
not questioned here, that the petitioner was a paid German
propagandist engaged in various business activities, in all of
which he made use of the same kind of propaganda calculated to
further the interests of Germany in the United States. The Court
holds that the congressional enactment required petitioner to
reveal to the Secretary only the particular propaganda activities
in which he engaged pursuant to his agency. It holds that the
petitioner could keep secret, without violating the law, those
propaganda activities undertaken on his own behalf, which were of
exactly the same type and were intended to accomplish exactly the
same purpose as those for which he had been hired by his German
principals.
To this construction of the Act, I cannot agree. I think that §
3(c) of the Act, which authorizes the Secretary to require
statements "of the activities of such persons as agent of a foreign
principal" must be read in the light of the general purpose of the
Act, and in close connection with § 6, which permits the Secretary
to prescribe the "rules, regulations, and forms" necessary to carry
out the
Page 318 U. S. 250
Act. By such a reading, the Secretary was authorized to ask the
question the petitioner failed to answer.
The general intent of the Act was to prevent secrecy as to any
kind of political propaganda activity by foreign agents. Both the
House and Senate Committees reporting the Bill under consideration
declared it to be their purpose to turn "the spotlight of pitiless
publicity" upon the propaganda activities of those who were hired
by foreign principals. Appreciating that "propaganda efforts of
such a nature are usually conducted in secrecy," they wanted to
make full information concerning it "available to the American
public," and sought by "the passage of this bill" to
"force propaganda agents representing foreign agencies to come
out 'in the open' in their activities, or to subject themselves to
the penalties provided in said bill. [
Footnote 2/1]"
They declared that the purpose of the Bill was to require all
such hired agents "to register with the State Department and to
supply information about their political activities, their
employers, and the terms of their contracts." [
Footnote 2/2]
Page 318 U. S. 251
What emerged from extended congressional investigations,
hearings, and deliberations was this Act, intended to provide an
appropriate method to obtain information essential for the proper
evaluation of political propaganda emanating from hired agents of
foreign countries. As the House and Senate Committees considering
the Bill said, it "does not in any way impair the right of freedom
of speech, or of a free press, or other constitutional rights."
Resting on the fundamental constitutional principle that our
people, adequately informed, may be trusted to distinguish between
the true and the false, the bill is intended to label information
of foreign origin so that hearers and readers may not be deceived
by the belief that the information comes from a disinterested
source. Such legislation implements, rather than detracts from, the
prized freedoms guaranteed by the First Amendment. No strained
interpretation should frustrate its essential purpose.
Section 6 of the Act provides that "[t]he Secretary is
authorized and directed to prescribe such rules, regulations, and
forms as may be necessary to carry out this Act." Congress did not
set out in the Act the questions to be answered, and it surely did
not intend to entrust the Secretary with no more than the power to
copy the Act in seeking information. Such latitude as he has the
Secretary immediately used to require that "agents of foreign
principals who engage, whether or not on behalf of their foreign
principal," in political propaganda activity should register, and
he asked the registrants to make a "comprehensive statement of
nature of business." In view of the general purpose of the Act,
such a question seems eminently reasonable. As a practical matter,
the very fact that, in the instant case, it is extremely difficult
to determine with conviction which activities the petitioner
carried on in his own behalf and which he carried on in behalf of
Germany is reason enough for requiring
Page 318 U. S. 252
him to report on both. The Act did not contemplate that a
foreign agent could evade its terms by claiming that all unreported
political activities, upon their discovery by this government, were
undertaken on his own behalf. Under the general power given the
Secretary by § 6 to determine the form of questions, he was
entitled to ask such questions as would make the enforcement of §
3(c) possible. I think the Secretary was authorized to ask the
question under consideration in this case, and that the Act
required the petitioner to answer it.
As is pointed out in the opinion of the Court, the 1942
amendment to the Act explicitly authorizes the Secretary to ask the
question which is involved in the instant case. The addition of
this provision to the Act, however, I consider purely declaratory.
The 1942 Bill was passed, as shown by the Senate and House reports,
to serve four major purposes: it required the labeling of foreign
propaganda mailed in the United States; transferred the
administration of the Act from the Department of State to the
Department of Justice; extended the application of the Act to
certain propaganda affecting Latin America, and improved the
enforcement provisions. The Attorney General, in expressing his
views on the bill, declared that the registration provisions of the
amendment, which includes specific authorization to ask the very
question now before us, were "merely declaratory." [
Footnote 2/3] If so, the Secretary had the
authority to ask the same question under the 1938 Act.
The reversal here apparently does not rest on the concluding
remarks of counsel for the government set forth in the Court's
opinion. I am in accord with the sentiments expressed in
Berger
v. United States, 295 U. S. 78,
295 U. S. 88,
which the Court today repeats. In that case, the Court declared
that counsel had misstated the facts; put words
Page 318 U. S. 253
into the mouths of witnesses which they had not said; intimated
that statements had been made to him personally out of court in
respect of which no proof was offered; pretended to understand that
a witness had said something which he had not; bullied and argued
with the witnesses, and committed other offenses. This Court
properly declared that his conduct called for stern rebuke by the
trial judge, for repressive measures, and "perhaps, if these were
not successful, for the granting of a mistrial."
A prosecutor must draw a careful line. On the one hand, he
should be fair; he should not seek to arouse passion or engender
prejudice. On the other hand, earnestness or even a stirring
eloquence cannot convict him of hitting foul blows. [
Footnote 2/4]
[
Footnote 2/1]
Senate Report No. 1783, House Report No. 1381, 75th Cong., 3d
Sess.
[
Footnote 2/2]
The House Committee hearings, which are available in manuscript
form only, show the same broad purpose. In explaining the Bill to
the House Committee, its author pointed out that it was
particularly aimed at firms, groups, or businesses, used "as a
means for that particular country or political party to hide its
identity," and that the Bill covered "all activities of all kinds
-- that is, all propaganda activities -- no matter from what source
it emanates." The Congressional Committee, whose Chairman was the
author of this Bill, had discovered through hearings that business
enterprises had been utilized as a means for propagandizing, and
that many persons, including the petitioner here, had published
articles in various magazines, concealing their identity behind
pseudonyms. The purpose of these activities, the Committee found,
had been to influence
"the policies, external and internal, of this country, through
group action. They were employing the same method that they had
employed in Germany for the purpose of obtaining control of the
government over there."
[
Footnote 2/3]
Sen.Report No. 913, 77th Cong., 1st Sess.
[
Footnote 2/4]
"To shear him [the prosecutor] of all oratorical emphasis, while
leaving wide latitude to the defense, is to load the scales of
justice; it is to deny what has always been an accepted incident of
jury trials, except in those jurisdictions where any serious
execution of the criminal law has yielded to a ghostly phantom of
the innocent man falsely convicted."
Di Carlo v. United States, 6 F.2d 364, 368.