Bridges v. United States, 346 U.S. 209 (1953)

Syllabus.

BRIDGES ET AL. v. UNITED STATES.

CERTIORARI TO THE UNITED $TATES COt;RT OF APPEALS FOR THE NINTH CIRCUIT.

No. 548. Argued May 4, 1953.- De<ided June 15, 1953.

In 1945, petitioners wstified in a naturali1.ation hearing which resulted in petitioner Bridges' admis.sion to citizenship. In 1949, all three were indicted under § 37 of the old Criminal Code, 35 Stat. 1096, now 18 U. S. C. (Supp. V) § 37 I, for coru<piring to defraud the United States by obstructing the proper admini.stration of its naturalization laws, llridges was indicted under § 346 (a) (I) of the Kationality Act of 1940 for testifying falsely in the naturalization proceeding that he w:IS not and had not been a member of the Communist Party, and petitioners Schmidt and Robertson were indicted under § 346 (a) (5) of the same Act for wilfully and knowingly aiding llridges to obu.in a certificate of naturalization by false and fraudulent statements. Held: The general three-year statute of limitations, 18 U. S. C. (Supp. V), § 3'>..82, is applicable to each of the offenses charged, aod the indictment came too late. Pp. 210-228.

1. The running of the general three-year statute of limitations was not suspended by the Wartime Suspension of Limitations Act in relation to the offenses charged in any of the counts. Pp. 215-224.

(a) The Wartime Suspension of Limitations Act applies to offenses involving the defrauding of tho United States in any manner, but only when the fraud is of a. pecuniary nature or at least of a nature concerning property; and none of the offenses here charged were of such a nature. Pp. 215-221.

(b) The wartime suspension of limitations authorized by Congre..ss in the language of this Act, or similar language in comparable acts, is limited strictly to offenses in which defrauding or attempting to defraud the United Su.tes is an essential ingredient of the offense charged. P. 2'll.

(c) Nothing in § 346 (a) (1) makes fraud an essential ingredient of the offense of making a false material statement under oath

in a naturalization proceeding. P. 222,

(d) Nothing in§ 346 (a) (5) makes fraud an essent,ial ingredient of the offeru;e of aiding someone to commit a violation of

0( TOBER l'ERM, 1052.

Op1n10n of th, Coort

l:HG (a}(I), and the ,_ruon m the iDd1c1mn11 of the nrds

• pTO('ured b, fraud" it~ not dtang:,, lhfl:Tf•'-:tJlt Pp 2'.?2-2'l:l

(•I A •~• cl COMpu2,ylo comm,! a ttrwn hotan11ve

rh:ug• ofcomm,mn,: threll'~ 1uell P 2'l3

(fl Tlllt1 §37 of cl,r old Crm,m•I Code, now I~ lJ. l:l. C.

(Supp \") §;1, abo appl,,.10 coasp,....,,..10 ddraud 1he l ttd

SUit.es "in any m,rnnrr or for any purpo 1•'' clof'S not reqom a

clill'trent re;ult aslo th, rlul'I" tbettunde! ID this cue Pp 2"..3-

2 n.., 11,'Uljt <bUSf ,n f21 cl IM ~<IofJun,25, JOH, codifying the Cnm,nal Code, does nol 11,c tho l><CL•I 6,..)t:or 1ts1ulf of liumat,ons ol §3-16 (g) of th• 'llahon.1h1,· Art of 1910 10 u lo •Pl~) 11 to 1M VIObt,o.,.ofth, btlfr Aet ebarg,d ,n the mclit1-m..ut Pp 2'2,t 227

19!1 F 2d SI I, m-en,,d

The Dl!tr1ct Court denied petitione-rs'

motion, to d1$- mi~~ their indirtment•.

86 F. Supp. 922, and thty were convicted. The Court of.\ppeal•

affirmed. 199 F. 2d all, and denied rehearing

n1 bane, 201 F. 2d 254 Thi•

O>urt ~l'ftnte<l certiorari.

34,'> l'. :,;, 904. Reverard and remandl'd, p. 228

T,lford Ta11lor argued the cau!!e for petition"""

W'th

him on the brier were A'orman Leonard nnd John I'. Frank.

John P. Davia argued the rau~E' for the l'nited States. With him on the bnl'r v.ere Acting Solicitor Gr:nl'ml .Stern, Beatriu Ho.•enberq,

Carl H. Jrnla11 and John R. Wilkin8.

MK. Jus-r1a BuRTOs deli\'ered the opinion or the Court.

l11 this proceeding we are hmitl'd to the cons 1& of the following

questions: (1) is it barl'<•d by the statute of limitations

and, 1£ not, (2) 1sit barred by the prmcip

The issues raised by the first question are:

1. Whether the Wartime Suspension of Limitations Act' has suspended the running of the general three-year statute of limitations' in relation to the offenses charged in-

Count I, under the general conspiracy statute; •

Count II, under§ 346 (a)(l) of the Nationality Act

of 1940; • or

Count III, under § 346 (a)(5) of the Nationality

Act of 1940; ' and

2. Whether the saving clause in § 21 of the Act of June 25, 1948, which enacted the present Criminal Code into law,' continued in effect the special five-year statute of limitations of § 346 (g) of the Nationality Act of 1940' in relation to violations of § 346 (a) of that Act.

For the reasons set forth, we reach a negative conclusion on each of the above issues.

Petitioner Harry Bridges entered the United States in 1920 as an immigrant seaman from Australia. Subsequently, he defeated two attempts of the United States to deport him because of his alleged Communist Party membership or affiliation. The second such attempt

• 18 U. S. C. (Supp. VJ § 3287. '18 U. S. C. (Supp. VJ § 3282.

• § 37 of the Criminal Code, 35 Stat. 1096, 18 U. S. C. § 88, now 18 U.S. C. (Supp. VJ § 371.

• 54 Stat. 1163, 8 U. S. C. § 746 (a)(l). now 18 U. S. C. (Supp. V) § 1015 (a).

• 54 Stat. 1164, 8 U.S. C. § 746 (a)(5), now 18 U.S. C. (Supp. V) § 1425.

• 62 Stat. 862. '54 Stat.1167, 8 U.S. C. § 746 (g).

culminated June 18, 1945, in Bridges v. Wi.xon, 326 U. S. 135.

June 23, 1945, he applied, in the San Francisco office of the Immigration and Naturalization Service, for a Certificate of Arrival and a Preliminary Form for Petition for Naturalization. August 8, he appeared, with petitioners Schmidt and Robertson, before an examiner for a preliminary examination. Each of the three testified that Bridges was not a member of the Communist Party.

September 17, 1945, Bridges appeared in the Superior Court in San Francisco for the naturalization hearing. Schmidt and Robertson testified that they had known Bridges for five years or longer, that he was a resident of the United States during that time and that they vouched for his loyalty to the United States. Bridges gave the following answers under oath:

"Q. Do you now, or have you ever, belonged to any organization that advocated the overthrow of the government by force or violence?

"A. No.

"Q. Do you now, or have you ever, belonged to the Communist Party in the United States'?

"A. I have not, I do not."

He was then admitted to citizenship.

May 25, 1949, more than three years later, a grand jury in the United States District Court for the Northern District of California returned the present indictment in three counts.

Count I charges the three petitioners with a conspiracy to defraud the United States by impairing, obstructing and defeating the proper administration of its naturalization laws by having Bridges fraudulently petition for and obtain naturalization by falsely and fraudulently stating to the naturalization court that he had never belonged to the Communist Party in the United States, and that

:-, l'.-\TJ•,:--.

BHID(,ES I l':-i!TED

Op1niun of lbe Court.

such sta ·m t .,.as known at all time• by each of the to be false and fruudulcnt. The appearance petitioners anJ t~ mo· ) of the petitioner-8 in the naturalization were alleged as the overt acts in the proccedit11( coMpiracy.

That count is laid under the following general ronspiracy statute:

t11 or more persons conspini either to oomm1t any offen•e 11g11inst the Unit!'cl States. or t-0 defraud he l nit.-d States m any manner or for any pur~.

such parties do any act to effect and one or more of

of the conspiracy, each of the parties10 the object such couspirM'y shall be fint.d not more than ten thousand dollars, or imprisoned not more than two years, or both. '1')7 of the old Criminal (' ode 'IS titat. 1090, 18 U. S. C. § 88, now 18 U. S. C. (Supp. \ I 371.

C'ount II char11:e~ Bridge• with wilfully and knowinp:ly making a fah;e statement under oath in the naturalization when he te,itified that he was not and had not proceeding

Count I I is laid been a member of the Communist Party. und"r 346 (a)(l) of the Xationality Act of 1940, of Stat. 1163, 8 U. S. C. § 740 (a)(l), which mukes it a fel nv for any person-

"Knowingly to make a false statement under oath, either orally or in writing, in any case, proceeding, or matter relating t-0, or under, or by virtue of any law:-itates relating to naturalization or of the United

•

citizt>nship."

62rl't'nM"tal• ~lion:;tat. 862,in346 l~i;r,,. (a) l!. ,....!<.!-1mul14neou,.ly,C.~l<d (:¼ppby\') § §:?II,141, 1015of (a)(the (a) Actl).,-.,,forol June theulllil4nt•,lly ~-S,tffrci,19~,. if 11\)', or the au·ang elsuse 1n § 21 upon tho e:ttUtltt'I or hm1tat1ons reJa,.. mg 10 §:1-16 (al,,.... pp. 224 2?:l, ln/ro

Count III charges Schmidt and Robertson with wilfully and knowingly aiding Bridges, who was not entitled thereto, to obtain a Certificate of Naturalization which was to be procured by false and fraudulent statements. It avers that they knew that Bridges was a member of the Communist Party and that he had made false and fraudulent representations in the naturalization proceeding. Count III is laid under§ 346 (a) (5) of the Nationality Act of 1940, 54 Stat. 1164, 8 U.S. C. § 746 (a)(5), which makes it a felony-

"To encourage, aid, advise, or assist any person not entitled thereto to obtain, accept, or receive any certificate of arrival, declaration of intention, certificate of naturalization, or certificate of citizenship, or other documentary evidence of naturalization or of citizenship-

"a. Knowing the same to have been procured by fraud; ...."0

Petitioners each moved to dismiss the indictment on the ground, inter alia, that each count was barred by the statute of limitations. The motions were denied. 86 F. Supp. 922. The trial resulted in a jury verdict of guilty on each count. Bridges received concurrent sentences of imprisonment for two years on Count I and five years on Count II. The other petitioners each received concurrent sentences of imprisonment for two years on each of Counts I and III. The Court of Appeals affirmed. 199 F. 2d 8ll. Rehearing en bane was denied. 201 F. 2d 254. Because of an indicated conflict between that decision and part of the decision in M arzani v. United States, 83 U. S. App. D. C. 78, 168 F. 2d 133, affirmed

•See note 8, ,upra, as to repeal of §346 (a). Simultaneously, § 346 (a) (5) wa.s substantially reenacted in 18 U. S. C. (Supp. V) § 1425.

Opiru<.o ol the Cour

20'1

by an equally divided Court, 3:~ tr S. S95, 336 t;. 8.

Oz.?,Ober,.*88,jc, well186 as its conflict inF. 2d 243 (C. A.part 2d withCir.),['nited and becat1seStates* ofv. the importance of the i~sues, we granted CErtiorari, 345 t'. s. 004.

unless

The act.a charged occurred in 19'5..\coordinp;ly,

orthesur generalrseded, three-year the indictment, found in statut<' of limitations 1049, is wassuspended out of time and must be dismi~sed."

oj the ge11eral thrte-yftJT I. Tht running

Srul"" oio1 of L mtatw~ ofle,18r8 charged iti any oj the count,.

A. The suspension prescribed by the Wartime Suspens,on of Limitations Act applies to oll'enees involving the defrauding of the United Stat.ea or any agency thereof,

onlywhether where by the fraudconspiracy or not, and in any manner, butia of a pecuniary nature or at least of a nature concerning property.

T'ie Wartime Suspen!<ion of Limitations Act creates an exception to a long-standing congretl"ional "policy of re-

"Tho grunt wll-1 hmit<d to qurttion• I and 2 prtWnteJ by 1he petJtloD for tbe•nt, iu.:

m,natacm"(I) Whether, of thl.1 inCourt view10of priorBndg<1, . adju,licauon• Wiron, 321,(1ndudin,:U. S. tM135),~ter- this is b.i.rrPd, in "'·Mle or in part, by the pnnc-lples of rn ;,,dicola,JUO('<'l'dmg or etoppd, or tho Jue J>,..,,... elau,e of the •·•Ith

Amendment."(2) WMther th•• pl'O<rttlm1 " lx,rn,d by th~ atatute ol

(Supp, n I 32b:?.

pose" that is fundamental to our society and our criminal law. From 1790 to 1876, the general limitation applicable to noncapital offenses was two yea.rs and since then it has been three years." In relation to a comparable exception stated in§ 1110 (a) as the limitation applicable under the Revenue Act of 1926," Mr. Justice Roberts, speaking for the Court, said:

"Moreo,•er, the concluding clause of the section, though denominated a proviso, is an excepting clause and therefore to be narrowly construed. United States v. McElvain, 272 U. S. 633, 639.(") And as the section has to do with statutory crimes it is to be liberally interpreted in favor of repose, and ought not to be extended by construction to embrace so-called frauds not so denominated by the statutes creating offenses." United States v. Scharton, 285 u. s. 518, 521-522.

The legislative history of this exception emphasizes the propriety of its conservative interpretation. It indicates a purpose to suspend the general statute of limitations only as to war frauds of a pecuniary nature or of a nature concerning property. It nowhere suggests a purpose to swallow up the three-year limitation to the extent necessary to reach the offenses before us.

"I Stat. 119; R. S. § 1044; 19 Stat. 3"~33. The limitation •• to treason or other capital offenses was three years from 1790 until it was removed in 1939. I Stat. 119; R. S. § 1043; 53 Stat. 1198; 18 U.S. C. (Supp, Y) § 3281.

"44 Stat. 114-115, 18 U.S. C. (11)?-5 ed., Supp. Y) § 585.

"" .. , The purpose of the added proviso [ to the general limitation section) was to carve out a special class of cases. It is to be construed strictly, and held to apply only to oases shown to be clearly within it.s purpose." United States v. AfcElvain, 272 U. S. 633,639.

"In 1921, H. R. Rep. No. 365, 67th Cong., 1st Sess. 1, supporting the bill to enact the proviso, said:

"The Department of Justice has been engaged in the investigat.ion and is now engaged in the investigation of various alleged offenses, consisting largely of frauds against the Government which are claimed to have occurred during the war with Germany and since its conclusion. Many of these alleged offenses grew out of the f contractual] rel.at.ion of the Government with various pen;ons aod corpo-rations engaged in the furnishing of military and naval supplies of various kinds. Many of these transactions require the most minute invfStigation in order to ascertain the exaC't facts, and in every case a considerable period must elapse before such faeta may be gathered from the files and other sources that the department may know whether prosecutions are justified or not. In many cases months, and perhaps considerable longer ()('riods, will be required for such investigations." See also, 61 Cong. Ree. 7000-7061, 7640.

In 1927, 11. R. Rep. No. 16, 70th Cong., 1st Sess. 1, supporting the bill to eliminate the 1921 proviso, ,;aid:

'"In 1921 the Attorney General represented that he was desirous of having further time to investigate alleged war frauds, and that owing to the nature of the investigations the statute or limitat,oos might run before it would be possible to obtain indictment.i, and he therefore requested that the period of the statute of limitations applicable to eonspiraey to defraud the Government of the United States should be extended from three years to six years. The Congress complied with the request and the limitation was extended from three to six years as to that particular class of offenses.

"The reasons £or the above change have ceased to exist; that is, the Department of Justice announced some time ago that it did not propose to attempt any further prosecution of offense,; of that character, that is to say, offenses giving rise to the statute." See also, 69 Cong. Rec. 473, 842.

and proceedings demonstrate a like purpose, coupled with a design to readopt the World War I policy."

•• In 1942, S. !l.ep. No. 1544, 77th Cong., 2d Sess. 1, 2, supporting the suspension of the running of the statute, said:

"The purpose of the prop0sed legislation is to suspend any existing statutes of limitations applicable to offenses invoh·ing the defrauding or attempts to defraud the l:nited States or any agency thereof, for the period of the present war. Contracting for the United States is done through its various agencies, including the departments and independent establishments and Government~owned and Govern~ ment-controlled corporations, and frauds against all of these agencies are intended to he embraced by the bill.

"During the World War many frauds commitwd against the Government were not discovered until the 3-year Statute of limitatjons had almost expired, and as stated in the commiUe<? report hereinafter referred to, many of the alleged offenses were barred from prosecu-tion. The general criminal statute of limitations (Rev. Stats., sec. 1044) was amended on :Sovemher 17, 1921, extending the period to 6 years in respect to offenses involving frauds against the United States ....

"During normal times the present 3-year statute of limitations may afford the Department of Justice sufficient t.ime to investigate, dis• cover, and gather c,•idencc to prosecute frauds against the Govern• 1nent. The United States, however, is engaged in a gigantic war program. Huge sums of monry are being exJ)<lnded for materials and equipment in order to carry on the war successfully. Although steps have been taken to prevent and to prosecute frauds against the Government, it is recogniwd that in the varied dealings opportunities will no doubt be presented for unscrupulous persons to defraud the Government or some agency. These frauds may be difficult to di,;cover as is often true of this tyJ)<l of offense and many of them may not come to light for some time to come. The law-enforcement branch of the Government is also busily engaged in its many duties, including the enforcement of the espionage, sabotage, and other Jaws."

A similar statement was made in H. R. Rep. No. 2051, 77th Cong., 2d Sess. 1-2, supporting the same bill, H. R. 6484. See also, 88 Cong. Rec. 6160. This bill, readopting the 1921 policy, was introduced at the su~gcstion of the Attorney General in lieu of a proposal then pending to suspend the running of the statute of limitations

This interpretation of the scope of the 1942 provision was expressly approved in M arzani v. United States, 83 U. S. App. D. C. 78-82, 168 F. 2d 133-137. As to nine counts based upon the amended False Claims Act, the Court of Appeals for the District of Columbia Circuit held that the 1942 Wartime Suspension of Limitations Act did not suspend the three-year statute of limitations. Those counts charged that false statements had been made to government agencies in relation to Communist Party membership, in connection with an application for a position in the government service. Referring to United States v. Gilliland, 312 U. S. 86, the Court of Appeals said:

"Thus, the [Supreme) Court held that defrauding the United States in a pecuniary or financial sense is not a constituent ingredient of offenses under the False Claims Act.

"It necessarily follows, in our view, that the Suspension Act does not apply to offenses under the False Claims Act. The 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 'Cnitcd 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." 83 U. S. App. D. C., at 81, 168 F. 2d, at 136.

Brought here on several issues, including dismissal of the nine counts, that case was twice affirmed, without opinion, by an evenly divided Court. 335 U. S. 895, 336

for every offense punishable under the laws oi t.be United Stat<IS. Hearings before Subcommittee No. 4 of the House Committee on the Judiciary on H. R. 4916, 77th Cong., Isl Ses.,. 6, 8, and see 88 Cong. Ree. 4759-4760.

209 Oparuon ol • Coun.

r. S 9Z?. See also, c:11ited Statrt v. Cohn, 2i0 U. S. 'l.39.''

As the offrnse~ h(•re chargl.'d are tho~c of knowingly a proceeding

rnak ng a fali;e tat ment under oath in to relating lo n1,turalization (Count III. or ,f colll!piring aiding romconc to do so (Count I), or of

haveobtainsomeorH· a Certificate fraud (Countof XaturalizationIII) none of knowingthem invoh-eit to thebe procured by of the United States in any prcumary mandrfrauding

nerholdor that, for in a manntrthat concerning rt'ason, the property. Wartime We Su~pension accordingly of Limitations Act does not apply to those offcn&C-•.

CourtsimilarB. Aall't'ady langua,;efurther ba.'l groundin intrrpri-ted comparable for our the language Acts,conclusion to mean beforeis thatthat 11s. thistheor of limitations authorized by Conwartime ~uspt>ns1on or in which defrauding gress i• limited strictly to offen~el!

to defraud th~ l:nited Statesis an es•rntinl atti-mpting of the offense charged. Decisions of this i11gredicnt

the tarlitr

Court, marlethat prior to 1042, ill "1.ll tantialha<I reenactment, inso interpreted 1942, car-let"i•l&tio, ried with it the intrrprrtation above stated. United

28.'i U. S. 518; United Stair• v. M<>-

State• v. Scharton,

EI*201. ~. Sec272 also,l' g_Braverman*633, c; v.rd l.lnittdStat~,State,•. •\'otrck,*317271 l: ~-U.S.49, M-55, and l, nited StatcB v. Cohn*, 270 tr. S. 33!1

"llaa, v, lfrnkrl, 216 (J S. 4H2, and llamm,r1('hm1dt,. l'nit,J

Stat,~,ther<' mndc• rerrrl'. :,; to'"I• con,•pir"" notriflt toto thed1•£raud tontrary.the l'nuedThe1tatf'ment1~t.atcs "an

anyS..eJt>n•r•IStat . al..,,nuruw-r Joo,;, ton.•paracr Unittd now§ or for Stair,*371 a...n)of tionvrhcJltlrp09e Ga"l n1·wS.,.. "'Crimin.I-I §asa;*12ui-rd oll ' C<HIP,tbeSin '6tht oldlkM!Cond Tl. Cnrmn>Il". H. C.!,,C'lause ·(Supp <:oM,,: rootrulof tht-:\')

thel.am1tat10ns mt<-rpn-tat1on :\rt di9eus!fd of thr provi.1n t-. ions'I inon.thr. ,vnrt1n11• Su•pen.-iono(

The simplest demonstration of this point appears in Count II. The offense there charged is that Bridges knowingly made a false material statement in a naturalization proceeding. In that offense, as in the comparable offense of perjury, fraud is not an essential ingredient. The offense is complete without proof of fraud, although fraud often accompanies it. The above-cited cases show that even though the offense may be committ~d in a pecuniary transaction involving a financial loss to the Government, that fact, alone, is not enough to suspend the running of the three-year statute of limitations. Under the doctrine of these cases, the suspension does not apply to the offense charged unless, under the statute creating the offense, fraud is an essential ingredient of it. The purpose of the Wartime Suspension of Limitations Act is not that of generally suspending the three-year statute, e. g., in cases of perjury, larceny and like crimes. It seeks to suspend the running of it only where fraud against the Government is an essential ingredient of the crime. In view of the opportunity to commit such frauds in time of war, and in view of the difficulty of their prompt discovery and prosecution, the Government seeks extra time to deal with them. Nothing in§ 346 (a)(l) makes fraud an essential ingredient of the offense of making a false material statement under oath in a naturalization proceeding.

Likewise, in Count III, the aiding of someone to commit that offense, in violation of§ 346 (a)(5), does not require proof of fraud as an essential ingredient. If, as here, the ma.in offense is complete with the proof of perjury, the suspension does not apply to the charge of aiding in the commission of that offense. The insertion in the indictment of the words "procured by fraud" does not change the offense charged. Tho embellishment of the indictment does not lengthen the time for prosecution. It is

2"l3

BRIDGES v. C\ ITED STATJ,;:;.

209

the statutory definition of the offense that determines "'hethrror not tlie s tutcof limitations romes within the Suspension Act.

So it is .,;th Count I. A charge of conspiracy to comoffense is not entitled to a longer

mit a r1>rtain sub•tantive

the

stAtuu of limitations than tht• charge of committing

for

offense itself. There is no additional time J>rescril>ed

for conspiracies as such. The insertion of indictmentff

does not change the

11rplu• words in ti in lictmcnt nature of the offensc charged.

'·The language of the proviso cannot reasonably be read to include all conspiracies as defined by 37. [The general conspiracy section of the old Criminal Cooe, IIOW 18 l ::;_ C. {Supp. \) § 371.J But if the proviso could be construed to include any con-it .,.-ould be limit('(! to those to

SJ 1rac1r-. obviou,ly commit the substantive offcn.,•s which it covers." c;,. ited .Statn,·. JfcElvai11, 272 U. S. 633, 639.

The G, ,ve~,m,•nt c.,nter,ds that the General Conspiracy cla!lses

Act" under which Count I is laid comprises two

(I) "'to commit any offense against the of con,<p1n&('1., United States" and (2) "to defraud the \;nil<.-d St.ates or for any purpo..se." It urges that the in any manner indictmcn t here charges a con•piracy to defraud the United States under the second clause. It suggests that, under that dause, proof of a •pcdfic int~nt to defraud

Count Iis an essential "ith1 ingredient th, Su!!J~•nsionof the Act. offense The and thusfallat>y inbringsthat be framed in argument 1s thut, while the indictment may the language of the second clause, both it and the proof to support it rely aolely on the fad of a con~piracy to commit the substanti\'e offenses violating§ :146 (11)(1) or

• §37 ol the old Cnmm,1 C-OJ•, 35 1>1,t. 1096, 11' U. Ii C §88, IIOW ·~ u. Ii C ("uw \') § 371,1tt p. 213, ••,,,.

_J

2'.!4 ()("TOBER

TER\I

rn;;2.

Opm1un uf thr e 11rt 316 l . S

I 340 (a)(5) as rharged in CountM

II and IIJ. Count I actually

rhar11e,

that petitioner.I

c, spired to "defraud the

l'nited Sta~s"

only by

identical the commi ion of the

offense§ charged in Count~

use in Count I of II and III. The language

copied from the s..·condclause

of the conspiracy

statute merely clonks a factual

char• e of con~piring

to cau~c, or knowingly to

aid, Bridges

to mako11 £also statement under oath in his

naturaliza-

tion proc.:,'lling,

or to obtain by

false slalemrot•

a Cer-

t16c,ite of ~atur'llization

to which he was not rntitled.

The Court of

Appeal~

in M arzarii v. United State,,

aupra, wa~ ronvmced

that the Suspension

Act did not

apply to such offen"e!,

a., th~ l11•re involved, under the

F&lse Claims Act, no matter

what words dc.-criptive

fraud were added to the of inclictmrnt,""

long as fraud wa.•

not a -nual

ingredient

of the offense dcfine<I

statute. ,\nother in tho

C-Ourtof Appeals

clusion in United States Y, Obamcier,arrivt'<.I at a like con-

180F. 2d 243,256-

257, "ith respect

to offen.ses

undt•r the ,tatute

involved

in Count II of the instant indictment.

II. The 11wi1111 clause in§ ti of the Art of June £5, 1948,

doe, not ",nvc" I he 1pecial five-71ear statutll of limitation,

npJ>III it to th~ iwlation,

The Government

('Ollt4'nds.

altl'rnativcly

that the in-

diclmmt,

which was found May 25, 194!1, was tunely as to Counts

II and III. e,en ,i the :Suspen~ion

Act is not

applir.able

to this indietnifnl.

Its alternati

vi' contention

is th~t those counts respectively

charge violations of

346 ( a) (1) and ( 5) of th, ::,.;ationality

..\ct of I 940 which

o urred in 1!145 and that the i dictment

found within the for them was

sperial five-year

limitation of

BIUDGES II, u:-..ITED :-iTATE:-;,

Opintt>n of lhe C'rn1rt.

20'J

of that.\ct.n It appears, however, that § 346 (a h) was expressly repuled, as of &-pt.ember 1, 194~, by §21 of the \ct of June 2.;, 194S, which enacted the nrw Criminal Co.JI' into law. Including its contro,·eraialuving clau!II', that rept>aling section reads11s follows:

"c:-Ec. 21. rt,e "'dior or part• thereof of the HcvisC'd St11tutc.~ or Statutes at Large enumerated in the folio mg <"heJule art her~by repealed.[" I Any right~ or liabilities now existing under such ~"<:lions

111fect~I by this repeal."

or pa ts thereof shall not be 62 Stat. 862.

By such rt'peal of § 346 (g), the grncrnl three-year stat• te of hm1tations b<..-arr ap ,bcable. 18 U. S. C. (Supp. \ ) § 3282.1 Three years having expired before the diee, t ,. found, t 3'>-S2 h..n; the instant indictment. The Government, however, contends thnt the abo e-qi., l<cd ,ia,'ing clause in § 21 refers not only to substantive liabilities but also to the period during whirh a c- me may b,, prosecuted and thu• include,; the special contained in § 346 (g) This issue five-year limitation was presented to the C-0urt of Appeals in the instant case and was decidl'<I against the Government. Hl9 F. 2d 811, part upon a like

819-620. In doingIIO, the court relied in conrlu,ion of the Court of Appeals for the i::ecoud Circuit in United Stairs v. Obermeier, aupra. Tho.t case related

oounts for knowingly making, in l-0 an indictment in two

""(g) No p,r,on ,lull I,, prO!!ttut...! tr~l. or JJUnhbt<I for any

cnme ar1Ang un,ltr the rrouSMins of rh111 .\.rt unlrss 1h1• 1nd1ctrntnt i"I round or th~ lnform!ltion is fil('U w11hm fh,e )'f"J.N ntx-t ahu the

" M Slat 116;,, U S C § (a),

o,

"In th•t orhedulo of N'P••l«I •"·lion•, nt 62 St•t S!-', •rn

i, ~), >17 of tho "'•tionahl) Act ol l!HO, idenu-

fird M from Chnpt,r 876, 54 StM. 1163-111!8, approvrd Octoh,r H J!MO

a S(-e note J l, aupra.

1945, in a naturalization proceeding, as here, false statements under oath in relation to membership in the Communist Party. The review of legislative materials and court decisions made there need not be repeated here in reaching the same result-that the saving clause in § 21 did not keep the special five-year limitation alive after September 1, 1948."

The purpose of Congress to substitute the general three-year limitation in place of the special five-year limitation is indicated in the Reviser's Xote to 18 U.S. C. (Supp. V) § 3282 which says:

"In the consolidation of these sections the 5-year period of limitat.ion for violations of the Nationality Code, provided for in said section 746 (g) of title 8, U. S. C., 1940 ed., Aliens and Nationality, is reduced to 3 years. There seemed no sound basis for considering 3 years adequate in the case of heinous felonies and gross frauds against the United States but inadequate for misuse of a passport or false statement to a naturalization examiner."

To adopt the interpretation proposed by the Government would produce the situation that offenses committed in August, 1948, would be indictable until August, 1953, whereas like offenses committed in the following October, 1948, would not be indictable after October, 1951. The longer period for the prosecution of the earlier offenses has no relation to war conditions. Such a result is not to be inferred without a clear direction to that effect.

Finally, to interpret the words "rights or liabilities" in the saving clause as including such procedural incidents as the period within which indictments may be found

'' In United Siate8, •. Smith, 342 U. S. 225, 226- 227, n. I, we a5sumed, without deciding, that this rest"'fvat.ion had no effect on the running or a Mt.atute of limitations.

would overlook the practice of Congress t-0 specify the saving of such limitations expressly when and if Congress wished them t-0 be "saved." In the Revised Statutes of 1874, § 5598 preserved "All offenses committed, and all penalties or forfeitures" but, nevertheless, § 5599 was inserted to add "All acts of limitation, whether applicable t-0 ci vii causes and proceedings, or to the prosecution of offenses, or for the recovery of penalties or forfeitures ...."" The 1909 Criminal Code contained similar provisions in§§ 343 and 344. 35 Stat. 1159. In 1933, when the Revised Statutes were reexamined and obsolete sections (including § 5598) were repealed, § 5599 was retained. 47 Stat. 1431. The reason then given for its retention was that the survival clause in the general repealing statute, 47 Stat. 1431, referred "only to 'rights' and 'liabilities' and not to remedies, recourse to which may be barred by limit-ation." S. Rep. No. 1205, 72d Cong., 2d Sess. 3. See Campbell v. Holt, 115 U. S. 620.

As the general three-year statute of limitations is applicable to each of the offenses charged and has been neither suspended by the Wartime Suspension of Limitations Act, nor made inapplicable by § 21 of the Act of June 25, 1948, the indictment in this proceeding came too late to be effective. The motion to dismiss it should

"See also, the general saving claw;e t,hat was in the Revised Statutes but has been regarded as not applicable to matters of remedy and procedure:

"Sw. 13. The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of $\.1.St..'lining any proper action or prosecution for the en-forcement of such penalty, forfeiture, or lfability."

See I U. S. C, (Supp, V) § 109; Halwwell v. Commm>s, 239 U. S. 506; Hertz v. Woodman, 218 'C. S. 205,218; Great NortMm R. Co. v. United States, 208 U.S. 452.

HEto, J ., di~~eating. 346 U.S.

have been granted when first made. The judgment of the Court of Appeals, accordingly, is reversed and the cause is remanded to the District Court with direction to dismiss the indictment.

MR. JUSTICE JACKSON and MR. JUSTICE CLARK took no part in the consideration or decision of this case.

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, conspiracy to defraud the United States, formerly fixed at three years by 18 U.S. C. § 3282, limitation for offenses not capital, is suspended for us by the \Vartime Suspension of Limitations Act, 18 U.S. C. § 3287. The Code sections so far as applicable appear below.' As stated in the Court's opinion, the indictment

I]$ U. $. C. §37]: "If two or more persons conspire either to commit any offense agamst the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspirru:y, each shall be fined not more than SI0,000 or imprisoned not more than .five years, or both."

Id.,§ 3282:

"Except as otherwise expressly pro,•idcd by hw, no person shall be prosecut~d. tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted withfo three years next after such offense shall have been committed."

Id.,§ 3287:

"When the 'Cnited States is at war the running of any statute of limitations applicable to any offense (I) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not, ... shall be suspended until three years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Congress."

209 REED, J., dissenting.

under § 371 was brought more than three years after the alleged offense but wit.bin 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 st.ate 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 t.he need of suspension of limitation following the First World War. A statute was then passed, which

'Falter v. United Statet, 23 F. 2d 420, 423--424; Miller v. United States, 24 F. 2d 353, 360; United States 1°. Holt, 108 F. 2d 365, 368. Cf. United State, v. Manton, 107 F. 2d 834, 838--839, a ease in which two Justices of this Court sat as Circuit Justices.

Reen, J., dissenting. 346 u. s.

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 Acts, 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 agair,st 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 Wartirne 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,

• Selective Service Act of 1948, 62 Stat. 604, 50 U. S. C. App. §§ 321, 451-470, 1001-1017.

• Trading With the Enemy Act, 40 Stat. 411, as amended, 55 Stat. 839, 50 U.S. C. App. § l et seq.

• Defense Production Act of 1950, 64 Stat. 798, as amended, 65 Stat. 131, 66 Stat. 298, 50 U. S. C. App. § 2061 et seq., §§ 2101-2110.

• Ibid., §§ 1912, 2072, 2073.

209 RE&D, J., dissenting.

statutes of limitation are statutes of repose. But our public policy is fixed by Congress, not by 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, 82, 168 F. 2d 133, 137, as a sound precedent for construing the Wartime Suspension 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 'C'nited States is not an essential ingredient of offenses under the False Claims statute." 83 l,". S. App. D. C., at 81, 168 F. 2d, at 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; United States v. McElvain, 272 U. S. 633; and United States v. Scharton, 285 U. S. 518. Noveck's case held that 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's and held that fraud on the United States was not an ingredient of evading a tax by false statements.

'Hurd v. Hodge, 334 U. S. 24, 34-35. • 18 U. S. C. (1946 ed.) § 80, substantially reenacted, 18 U. S. C. §287.

Rp,F.o, J., dissenting. 346 U.S.

Under the second point, the Court of Appeals relied upon United States v. Gilliland, 312 U.S. 86. 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 "with.in the jurisdiction of any department or agency of the l:nited States." 312 U. S., at 90. Thus the former holding of th.is Court that the False Claims Act was restricted to "pecuniary or property loss," United States v. Cohn, 270 U. S. 339, 346, 347, 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 an essential ingredient under the False Claims Act. Therefore the Suspension Act did not apply. Cf. United States v. Gottfried, 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 not 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 M"arzani 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.

or nonproperty frauds. This has been true since Haas v. Henkel, 216 U.S. 462, 479.' 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 st.atement under oath in his naturalization proceeding, or to obtain by false stat.ements a Certificate of ~aturalization t-0 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, 8"Upra, of "impairing, obstructing or defeating the lawful function of any department of Government." P. 479.

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 judi-

• See also United States v. Cohn, 2i0 L". S. 339, 346; Ham.me,~ schmidt v. United States, 265 U. S. 182, 188; cf. United States v. Lepowitch, 318 U. S. 702.

cially determined.

They point to the

Lanu pr•~ 11ng1S of 1938, referred to in

Hridge.a v. ll'iron, 326 r. S 135 138.

this Court's

deciR1on in that cn!'e, and the naturalization prOCfflliniz,<

thenwlves

of l!l45. ~one of the<iP, thoui:h, are re, judicala, ~ince this is a criminal cause. ~or can collateral estoppel be invoked. There hu been no court holding that Bridges ha., not been a CommuniRt.

The

Landis determination

of then nonmembcrsh1p.

r, •t a judicial one.

Pearson v. Williams, 202 t:. S. 281. In Bridge, v. Jr'iron, npra, no holdinK on th,· fact 1al au!" - tion of membership

waR reached. And the naturalization

proceedtngs

did not determine nor

m,•mi,er<hip

,a1.

Brid,i;es rould !~gaily have been granted citizenship even had he b,,en found by the Court to ha"' bt-.·11 a n, mber of the Communist Party.

s~ 8 U s. C. (1046 ro.)

H 705, 707, which merely prohibited grant of naturaliution to m~mbers of or11:anizatiom

advocating

the over-

throw of the Government, or to those not attached to the Constitution.

This has been changed. 8 U. S. C.•\. § 1424 (a)(2). There is no nece1<sary

identity 111 law

between Communist Party

nu·mlw rs and •urh persons

See Schneiderman

v. United State,, 320 U. ii. 118. Cf. Car/. on, . Landon, 342 C S. 524. li36, 22

Aa our views have not prevailed as to Count I, we forbl-ar to exprl'SS any vie'Wl' as to Counts II and III.