Bridges v. United States/Dissent Reed

Mr. Justice REED, with whom The CHIEF JUSTICE and Mr. Justice MINTON join, dissenting.

The limitation for prosecutions under the second clause of 18 U.S.C. § 371, 18 U.S.C.A. § 371, conspiracy to defraud the United States, formerly fixed at three years by 18 U.S.C. § 3282, 18 U.S.C.A. § 3282, limitation for offenses not capital, is suspended for us by the Wartime Suspension of Limitations Act, 18 U.S.C. § 3287, 18 U.S.C.A. § 3287. The Code sections so far as applicable appear below. As stated in the Court's opinion the indictment under § 371 was brought more than three years after the alleged offense but within time if the wartime suspension applies. The applicability of that section, § 3287, depends upon whether the conspiracy charged in the indictment was an offense 'involving fraud * *  * against the United States *  *  * in any manner, whether by conspiracy or not,' within the meaning of said § 3287.

An indictment under § 371 may be found for conspiracy to commit any offense against the United States, or to defraud the United States. These are alternative, disjunctive provisions. One addresses itself to the conspiracy to commit substantive offenses specified under other statutes; the other to a conspiracy to defraud the United States. Such a conspiracy is itself the substantive offense charged in the indictment. This construction has been accepted by the courts without variation.

The indictment, Count I, charges conspiracy 'to defraud the United States by impairing, obstructing, and defeating the proper administration of its naturalization laws' by causing Bridges falsely and fraudulently to state that he 'had never belonged to the Communist Party in the United States.' We think that this alleged offense, since it is an effort to defraud the United States by impairing or obstructing or defeating its naturalization laws obviously falls within the terms of the suspension of limitations, § 3287, 'involving fraud' 'by conspiracy.'

We see nothing in the legislative history of § 3287 to raise a question as to its applicability to this indictment. The opinion of the Court quotes excerpts from reports concerning the need of suspension of limitation following the First World War. A statute was then passed, which we accept as having been enacted for the same purpose and with the same coverage as the present legislation. See n. 15 of the Court's opinion. Those reports do show that war frauds of a pecuniary nature were uppermost in the minds of Congress. Court's opinion, n. 17. This was only natural in view of the haste and waste of war but it does not follow logically that frauds against the proper exercise of governmental functions are excluded. The cited excerpts do not specifically exclude them. Certainly frauds impairing, obstructing or defeating selective service, alien property, administration of prices and wages and the allotment of scarce material, as well as the Immigration and Nationality Act, would hardly be omitted knowingly by Congress from a suspension of limitation for frauds against the Government. Yet, many of these would fall under the Court's interpretation that wartime suspension applies only to war frauds of a pecuniary nature or of a nature concerning property. It was as hard, perhaps harder, to find and punish frauds against administration as those of a pecuniary or property nature. A general amnesty bill against war frauds would be fairer than to hold only those guilty of financial frauds. Both the purpose and the language of the Suspension Act lead to the conclusion that frauds against administration are within its scope.

The Court asserts that the Wartime Suspension Act should be limited to those frauds of a pecuniary or property nature because the Act is an exception to a 'long standing congressional 'policy of repose." Of course, statutes of limitation are statutes of repose. But our public policy is fixed by Congress, not the courts. The public policy on repose for wartime frauds is fixed by the Suspension Act and it is the words of that Act that determine our policy, not some general feeling that litigation over frauds should end.

Nor can we accept the Court's reliance on Marzani v. United States, 83 U.S.App.D.C. 78, 168 F.2d 133, 137, as a sound precedent for construing the WartimeSuspension of Limitations Act to apply only to frauds of a pecuniary or property nature. On review this Court was evenly divided. The Court of Appeals held that the Wartime Suspension Act did not apply because '(t)he Supreme Court has clearly said (1) that a statute identical in pertinent part with the Suspension Act does not apply to offenses of which defrauding the United States in a pecuniary way is not an essential ingredient; and (2) that such defrauding of the United States is not an essential ingredient of offenses under the False Claims statute.' 168 F.2d at page 136. Marzani was indicted under the False Claims Act.

The cases relied upon for the first point are United States v. Noveck, 271 U.S. 201, 46 S.Ct. 476, 70 L.Ed. 904; United States v. McElvain, 272 U.S. 633, 47 S.Ct. 219, 71 L.Ed. 451, and United States v. Scharton, 285 U.S. 518, 52 S.Ct. 416, 76 L.Ed. 917. Noveck's case held an indictment for perjury in an income tax return was barred, despite a suspension statute much like § 3287, because fraud was not an element of the crime of perjury. McElvain's case held similarly as to the substantive offense of a willful attempt to evade a tax. Scharton's case followed Noveck and held that fraud on the United States was not an ingredient of evading a tax by false statements.

Under the second point, the Court of Appeals relied upon United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598. There this Court held that the 1934 Amendment to Criminal Code § 35, 48 Stat. 996, enlarged § 35 so as to include false representations in any documents 'within the jurisdiction of any department or agency of the United States.' 312 U.S., at page 90, 61 S.Ct. at page 521. Thus the former holding of this Court that the False Claims Act was restricted to 'pecuniary or property loss', United States v. Cohn, 270 U.S. 339, 346, 46 S.Ct. 251, 253, 70 L.Ed. 616, was made inapplicable to the section as amended. The Court of Appeals, however, thought that the Gilliland decision meant that defrauding the United States in a financial sense is not a constituent ingredient under the False Claims Act. Therefore the Suspension Act did not apply. Cf. United States v. Gottfried, 2 Cir., 165 F.2d 360, 367. It is immaterial whether the Court of Appeals was correct in thinking that defrauding the United States in a financial sense was an essential ingredient of the False Claims Act. We think it clear that defrauding the United States is an essential ingredient of this charge of conspiracy under § 371. We do not think Marzani adds strength to the Court's position that the Suspension Act applies only to financial fraud.

The cases both under the first and second points of the Marzani decision deal with the suspension statutes as applied to substantive crimes that did not require proof of fraud against the United States for conviction. It was enough that the charge and proof showed perjury, false swearing or misrepresentation to a government agency. Fraud was not an essential ingredient. The contrary is true in the present prosecution under Count I.

As we showed in the second paragraph of this opinion, the substantive crime here charged is the conspiracy to defraud the United States, punishable as a conspiracy. The fraud is an essential element. There can be no doubt that this crime, denounced by § 371, covers nonpecuniary or nonproperty frauds. This has been true since Haas v. Henkel, 216 U.S. 462, 479, 30 S.Ct. 249, 253, 54 L.Ed. 569. We do not agree with the Court's analysis of the indictment that the offenses charged in Count I are 'knowingly making a false statement' in a naturalization proceeding or aiding to obtain a certificate of naturalization by fraud. These are the overt acts of the Count I conspiracy, not the substantive offense of defrauding the Government in its administrative processes charged in Count I.

As Count I describes the substantive offense of conspiracy to defraud the United States, we do not agree with the Court's statement that:

'The use in Count I of language copied from the second clause     of the conspiracy statute merely cloaks a factual charge of      conspiring to cause, or knowingly to aid, Bridges to make a      false statement under oath in his naturalization proceeding,      or to obtain by false statements a Certificate of      Naturalization to which he was not entitled.'

To prove the substantive offense of conspiracy under § 371 it is necessary to prove the fraud. It cannot be said that a false statement as to Communist membership in a naturalization hearing would not be a fraud against the administration of the naturalization laws within the language of Haas v. Henkel, supra, of 'impairing, obstructing, or defeating the lawful function of any department of government.' 216 U.S. at page 479, 30 S.Ct. at page 254.

We therefore would affirm the judgment below as to Count I. Petitioners have also contended here that the conviction is barred because the principles of res judicata or collateral estoppel require us to hold that Bridges' nonmembership during the crucial period has been judicially determined. They point to the Landis proceedings of 1938, referred to in Bridges v. Wixon, 326 U.S. 135, 138, 65 S.Ct. 1443, 1445, 89 L.Ed. 2103, this Court's decision in that case, and the naturalization proceedings themselves of 1945. None of these, though are res judicata, since this is a criminal cause. Nor can collateral estoppel be invoked. There has been no court holding that Bridges has not been a Communist. The Landis determination of then nonmembership was not a judicial one. Pearson v. Williams, 202 U.S. 281, 26 S.Ct. 608, 50 L.Ed. 1029. In Bridges v. Wixon, supra, no holding on the factual question of membership was reached. And the naturalization proceedings did not determine nonmembership because Bridges could legally have been granted citizenship even had he been found by the Court to have been a member of the Communist Party. See 8 U.S.C. (1946 ed.) §§ 705, 707, which merely prohibited grant of naturalization to members of organizations advocating the overthrow of the government, or to those not attached to the Constitution. This has been changed. 8 U.S.C. § 1424(a)(2), 8 U.S.C.A. § 1424(a)(2). There is no necessary identity in law between Communist Party members and such persons. See Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796. Cf. Carlson v. Landon, 342 U.S. 524, 536, n. 22, 72 S.Ct. 525, 532, 96 L.Ed. 547.

As our views have not prevailed as to Count I, we forbear to express any views as to Counts II and III.