Bryson v. United States/Opinion of the Court

by John Marshall Harlan II

United States Supreme Court

396 U.S. 64

Bryson  v.  United States

 Argued: Oct. 14, 1969. --- Decided: Dec 8, 1969

Petitioner asks this Court to set aside his 1955 jury conviction under 18 U.S.C. § 1001 ^[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. ^[2] This collateral proceeding was 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. ^[3] The District Court distinguished Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), and decided that § 9(h), which had been upheld in American Communications Assn. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925 (1950), could no longer be thought constitutionally valid, particularly in light of United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (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). ^[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, 89 S.Ct. 879, 21 L.Ed.2d 771 (1969), and we now affirm.

* 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 387-389, 70 S.Ct., at 678-679. 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. ^[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, ^[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 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.

In Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (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 867, 86 S.Ct., at 1848. The Court, drawing on United States v. Kapp, 302 U.S. 214, 58 S.Ct. 182, 82 L.Ed. 205 (1937), and Kay v. United States, 303 U.S. 1, 58 S.Ct. 468, 82 L.Ed. 607 (1938), stated:

'The governing principle is that a claim of unconstitutionality will not be heard to excuse a voluntary, deliverate 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 867, 86 S.Ct., at 1847.

We find the principle of Dennis no less applicable in the case before us. First, none of the elements of proof 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 ^[7] later explicitly approved by this Court in Killian v. United States, 368 U.S. 231, 254-258, 82 S.Ct. 302, 314-317, 7 L.Ed.2d 256 (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, or duress. Insofar as petitioner in this collateral proceeding attempts to suggest the contrary, ^[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, 75 S.Ct. 504, 99 L.Ed. 594 (1955); United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 522, 85 L.Ed. 598 (1941), ^[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.3d 724, 742-743 (C.A.9th Cir. 1962); United States v. Adler, 380 F.2d 917, 921-922 (C.A.2d Cir. 1967). A statutory basis for an agency's request for information provides jurisdiction enough to punish fraudulent statements under § 1001. ^[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, Mill and Smelting Workers, 352 U.S. 145, 148-149, 77 S.Ct. 154, 156, 1 L.Ed.2d 201 (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. ^[11]

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 ^[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.

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. ^[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- a purported compliance with (§ 9(h) was) designed to avoid the courts, not to invoke their jurisdiction.' 384 U.S., at 865, 86 S.Ct., at 1846.

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 postconviction 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.

Affirmed.

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

Notes

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.'
2. Until repealed in 1959, § 9(h) of the Taft-Hartley 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.'
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, 78 S.Ct. 20, 2 L.Ed.2d 34 (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, 79 S.Ct. 1437, 3 L.Ed.2d 1535 (1959).
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.
5. The jury acquitted petitioner of the separate charge that he had fraudulently denied that he was a 'member' of the Communist Party.
6. Section 504, Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 536, 29 U.S.C. § 504.
7. The instructions of the court on affiliation were:
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.
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 93, 61 S.Ct., at 522. 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.
10. We do not read previous decision of this Court, in contexts other than prosecutions under § 1001, e.g., Williamson v. United States, 207 U.S. 425, 453-462, 288 S.Ct. 163, 173-177, 52 L.Ed. 278 (1908); United States v. George, 228 U.S. 14, 33 S.Ct. 412, 57 L.Ed. 712 (1913); Viereck v. United States, 318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734 (1943); Christoffel v. United States, 338 U.S. 84, 69 S.Ct. 1447, 93 L.Ed. 1826 (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 Rigts 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.
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.
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 385-387, 70 S.Ct. at 677-678.
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 860, 86 S.Ct., at 1844. 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.