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United States v. Neff.

decided.: April 1, 1954.

UNITED STATES
v.
NEFF.



Author: Kalodner

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

KALODNER, Circuit Judge.

The defendant appeals from a judgment of conviction of perjury.*fn1 She was sentenced to a ten-year term on three counts of an indictment arising out of her testimony before a Federal Grand Jury in the District of New Jersey in an investigation entitled "United States v. Anthony Valenti, alias Anthony Valentino, alias Tony Valentino." The investigation concerned an allegedly false non-Communist affidavit filed by Valenti*fn2 in asserted violation of a Federal statute.*fn3 Valenti was business agent of a union (Local 80 of the United Packing-house Workers, C.I.O.) which employed the defendant as an office secretary. She was a notary public and as such took Valenti's acknowledgment to the affidavit. After testifying with respect to Valenti's execution of his affidavit and submitting to questioning directed to ascertain whether Valenti was a Communist, the defendant was examined concerning her own possible Communist Party affiliation or activities. She testified that she was not then, and never had been a member of the Communist Party (she first declined to answer as to the latter). She gave negative answers to the following questions which form the substance of the three counts of the indictment:

1. "Did you ever attend a meeting of the Communist Party?"

2. "Did you ever collect dues for the Communist Party?"

3."You never handled any money for the Communist Party?"

Defendant's appeal was originally based chiefly on the insufficiency of the government's evidence and asserted prejudicial errors of the trial judge in the conduct of the trial.

At the argument on this appeal defendant raised a further question as to the insufficiency of the indictment on the ground that the person who administered the oath before the Grand Jury was not named therein nor was his official capacity designated.*fn4 In support of her contention in this respect she cited United States v. Debrow, 5 Cir., 1953, 203 F.2d 699,*fn5 which held that a perjury indictment is insufficient when it fails to disclose the name of the person administering the oath or his official capacity and that he possessed requisite authority to act.In view of the fact that certiorari was granted by the Supreme Court in the Debrow case on June 15, 1953, 345 U.S. 991, 73 S. Ct. 1134, 97 L. Ed. 1399, we deemed it advisable to await its ruling, since an affirmance would have compelled an acquittal in the instant case. On November 16, 1953, the Supreme Court reversed the Fifth Circuit's holding; United States v. Debrow, 346 U.S. 374, 74 S. Ct. 113. The latter is dispositive of the defendant's contention on this phase of her appeal.

While the Debrow case was under consideration by the Supreme Court, this Court, on September 15, 1953, in United States v. Valenti, 207 F.2d 242, 244, held that the District Court for the District of New Jersey did not have venue jurisdiction of prosecution of Valenti for having made false statements in the non-Communist affidavit filed with the National Labor Relations Board and that Valenti's motion for acquittal should have been granted.*fn6

Immediately following filing of the Valenti opinion the defendant requested and was granted leave to file a supplemental brief dealing with its impact upon the instant appeal.Leave was also granted to the government to file a reply brief. Defendant's supplemental brief presents the contention that since we found in Valenti that the District Court of New Jersey there lacked venue jurisdiction, it follows that the Grand Jury which returned the indictment here also lacked jurisdiction to inquire into Valenti's false affidavit and, accordingly, perjury could not be charged upon defendant's testimony before it, because, she says, "where a tribunal lacks jurisdiction no perjury can be charged upon testimony given before it." In support of the last proposition defendant cites United States v. Williams, 1951, 341 U.S. 58, 65, 71 S. Ct. 595, 95 L. Ed. 747, and several State Court decisions.

It would serve no useful purpose to discuss in extenso the arguments made by defendant or the cases which she has cited. With respect to the latter it need only be said that they are inapposite.

These principles are well established:

The Grand Jury is an integral part of our judicial system. Its sweeping inquisitorial function dates back some 800 years.*fn7 The Grand Jury is "a great historic instrument of lay inquiry into criminal wrongdoing."*fn8 "The Constitution itself makes the grand jury a part of the judicial process * * * and "the proceeding before a grand jury constitutes 'a judicial inquiry' * * * of the most ancient lineage."*fn9 The statutes abound with references to the functioning of Grand Juries.*fn10 The scope of a Grand Jury investigation is not limited by the probable result of its inquiry or by doubts whether any particular individual will be found properly subject to an accusation for crime.*fn11 "A grand jury that begins the investigation of what may be found to be obstructions to justice * * * opens up all the ramifications of the particular field of inquiry. * * * And Congress certainly did not restrict a grand jury in dealing with all crimes disclosed by its investigation."*fn12 "That a grand jury proceeding has no defined litigants and that none may emerge from it, is irrelevant to the issue."*fn13 An investigation by a Federal Grand Jury need not be preceded by any definition whatever of the crime to be investigated or the persons against whom an accusation is sought.*fn14 The examination of witnesses before a Grand Jury need not be preceded by presentment, indictment or other formal charge.*fn15 A witness "is not entitled to challenge the authority of the court or of the grand jury, provided they have a de facto existence and organization. * * *" and it is "* * * no concern of one summoned as a witness whether the offense [under investigation] is within the jurisdiction of the court or not. At least, the court and grand jury have authority and jurisdiction to investigate the facts in order to determine the question whether the facts show a case within their jurisdiction."*fn16

The principles stated ar dispositive of the defendant's contention that perjury could not be charged upon defendant's testimony before the Grand Jury because the District Court lacked venue jurisdiction in the Valenti case.

Applying these principles to the instant case we are of the opinion that the Grand Jury which received the defendant's testimony was lawfully constituted and it had "authority and jurisdiction to investigate the facts in order to determine the question" whether Valenti could "be found properly subject to an accusation for crime." It was "no concern" of the defendant whether the offense under investigation (Valenti's suspected filing of a false non-Communist affidavit) was within the jurisdiction of the District Court of New Jersey.Having been subpoenaed by the Grand Jury, the defendant was "bound not only to attend, but to tell what she knew in answer to questions framed for the purpose of bringing out the truth of the matter under inquiry", subject, of course, to her constitutional guarantees under the Fifth Amendment. Blair v. United States, 1919, 250 U.S. 273, 279, 282, 39 S. Ct. 468, 63 L. Ed. 979. As was stated in the latter, she was "not entitled to set limits" to the Grand Jury's investigation which, under the law, was "not limited by the probable result of its inquiry."

Historically, Grand Juries have been constituted for the purpose of ascertaining whether or not crimes have been committed in their district. Not infrequently their investigation has failed to establish criminal wrongdoing. To say that there can be no prosecution for perjury committed by a witness because the Grand Jury's investigation has proved fruitless, is an utterly inconceivable proposition.

As was stated in United States v. Williams, supra, 341 U.S. at page 68, 71 S. Ct. at page 600, the federal perjury statute*fn17 was "* * * enacted in an effort to keep the course of justice free from the pollution of perjury * * *" and is "* * * directed * * * at its perpetration; at the probable wrong done the administration of justice by false testimony", and "* * * federal courts * * * uphold charges of perjury despite arguments that the federal court at the trial affected by the perjury could not enter a valid judgment due to lack of diversity jurisdiction, or due to the unconstitutionality of the statute out of which the perjury proceedings arose."

For the reasons stated we do not subscribe to the defendant's contention that perjury could not be charged upon her testimony before the Grand Jury because there was a lack of venue jurisdiction in United States v. Valenti, supra.

That determination brings us to the consideration of the issues initially presented by defendant's appeal. Summarized these issues are:

1. Was there compliance with the standard of proof required to sustain a conviction of perjury with respect to each of the three counts of the indictment?

2. Were the questions addressed to the defendant and her replies thereto material to the Grand Jury's inquiry relating to Valenti?

3. Was defendant denied her rights under the privilege against self-incrimination?

4. Was there prejudicial error in the conduct of the trial on the part of the trial judge and government counsel?

On the score of the first issue it is the defendant's contention that the evidence was insufficient to sustain the jury's verdict of guilty as to each of the three counts of the indictment. The crux of the defendant's contention is that the falsity of her statements to the Grand Jury was not established by the testimony of two witnesses or the testimony of one witness supported by proof of corroborating circumstances, as required by well-settled principles. Weiler v. United States, 1945, 323 U.S. 606, 607, 65 S. Ct. 548, 89 L. Ed. 495; United States v. Nessanbaum, 3 Cir., 1953, 205 F.2d 93, 95. Since the government contends to the contrary, it is necessary to discuss the evidence with respect to each of the three counts to determine whether it complied with the proof required to sustain a conviction of perjury.

Before proceeding to a consideration of the evidence it is necessary to note the following undisputed facts:

The defendant appeared before the Grand Jury on October 11, 1951. The indictment was filed February 5, 1952. On February 15, 1952, she entered a plea of not guilty. On February 25, 1952, she filed a notice of motion to dismiss the indictment, or in the alternative to inspect and copy minutes of the Grand Jury and for a bill of particulars. After a hearing the District Court on March 25, 1952, entered an order (1) denying the motion to dismiss the indictment; (2) denying the motion to inspect and copy the minutes of the Grand Jury except with respect to the defendant's own testimony, and (3) granting in part and denying in part the motion for a bill of particulars.*fn18 On April 2, 1952, the government filed its bill of particulars, pursuant to the order of March 25, 1952.

On April 3, 1952, defendant gave notice of motion for a supplemental bill of particulars and a motion to compel the government to make an election between Counts 2 and 3 of the indictment.*fn19 (Count 2 related to collection of "dues" for the Communist Party and Count 3 related to the handling of "money" for the Communist Party.) At a hearing on April 18, 1952, the Court orally granted in part defendant's motion for supplemental bill of particulars and denied the motion to compel the government to make an election between Counts 2 and 3 of the indictment. On April 24, 1952, the government filed a supplemental bill of particulars. Stated in composite form the particulars directed to be answered and the answers given in the original and supplemental bills read as follows:

First Count:

(1) Where was such meeting held? - 333 Arch Street, Camden, New Jersey.

(2) When was such meeting held, giving date, and the hours of such meeting? - Just immediately prior to June 23, 1947, at approximately 5 P.M., another meeting just immediately prior to April 30, 1948, at approximately 5 P.M. The United States does ...


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