Reply Brief — United States v. Harriss

Inthe Supreme Court of the Wuited States

OcToBER TERM, 1953

No. 32

UNITED STATES OF AMERICA, APPELLANT

v.

Rosert M. Harriss, RatpH W. Moore, Tom

LINDER, AND NATIONAL FARM COMMITTEE

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

REPLY MEMORANDUM FOR THE UNITED STATES

Respondent Harriss insists that under the

Criminal Appeals Act the Court must determine

the validity of the Lobbying Act on its “face”

without regard to the “‘particular applications of

the statute sought to be made in an information

filed thereunder’? (Harriss Br. 16), and his brief

fires repeated broadsides at the entire Act, pay-

ing little attention to the specific charges made

against these four defendants in the information

now before the Court. This memorandum is de-

voted to a further consideration of this funda-

mental position on which Harriss’s defense is

almost entirely based.

276324—53 (1)

aT

2

In our main brief (pp. 80-87), we refer to the

accepted principles of federal constitutional] ad-

judication which, ever since Hayburn’s Case, 2

Dall. 409, have moved this Court to refrain from

giving advisory or venera] opinions on constitn-

tionality and have tied constitutional] decisions to

the case actually before the Court. These prin-

ciples have heen expressly held applicable to con-

stitutional appeals under the Criminal Appeals |

Act. United States V. Petrillo, 332 U. 8. 1, & we. |

12; United States Vv. Congress of Industrial Oy-

ganizations, 335 UV. S. 106, 110: Uncted States y,

Spector 343. U. S. 169,172. And in the cases com-

ing here under the Criminal] Appeals Act the

Court has, as a matter of actual practice, con-

sidered the Validity of a general criminal statute |

in the light of the specific facts and circumstances

presented in the particular indictment or informa-

tion. See United States vy. Wurabach, 280 U. S.

396, 398, 399 (discussed in Government’s: main

brief, pp. 50-51, 56, 77-78) ; United States y.

Classic, 313 U. §. 299 (validity of federal civil

rights legislation as applied to primary election

in Louisiana) ; United States y, Darby, 312 U. 8.

100 (Fair Labor Standards Act); United States

V. Southeastern nderwriters Assoc., 322 U. §

533 (Sherman Act as applied to insurance) ;

United States y. Petrillo, 332 U. S. 1 (Lea Act).

See also United States V. Congress of Industrial

Organizations, 335 U.S. 106; United States vy.

Williams, 341 U. 8.58. Weknow of no case under

be

BLURRED Copy

3

the Criminal Appeals Act in which the Court has

invalidated a statute Without looking to the speci-

fic allegations of the indictment or information,’

Cf. Fleming vy. Rhodes, 331 U. S. 100 (holding

that 28 U.S.C. 1252 gives this Court jurisdiction,

on direct appeal, to review “a ruling against the

constitutionality of an act of Congress when the

ruling of unconstitutionality is made in the ap-

plication of the statute to a particular c¢ireum-

stance * * * rather than upon the challenged

statute as a whole’’),

Nothing in the language of the Criminal Ap-

peals Act (now 18 U.S. © 3731) smpports the

defendants’ position or calls upoi the Court to

reverse its practice, A direct ay peal is permitted

“from a decision or judgment setting aside, or

dismissing any indictment or information, or any

count thereof, where such decision or Judgment

is based upon the invalidity or construction of the

statute upon which the indictment or information

is founded.” %m’8U SG 3731. In deciding

Whether to dismiss an information founded on a

federal statute on the ground of invalidity, the

—eeceateneneees

"The Court has upheld, on direct appeal, an information

which repeated the Zeneral words of a federal statute

(United States Vv. Petrillo, 332 U. S. 1, 5-9, 10) while refus-

Ing to pass on the validity of the act as applied to other, more

specific, parts of the information until further proceedings

had determined whether these specific allegations would be

retained and proven (id. at 11-13). This result is entirely

consistent with the established principle that the Court

Will not invalidate a Statute unless it has no other choice and

until it has an uppropriate record.

4

Distriet Court must, as in every constitutional]

case in a trial court, consider the act on the

record then before it, 7. @., as the statute is applied

in the challenged information. The court’s deter-

mination necessarily rests on the relationship of

the information to the criminal] statute. There js

no reason why this Court should be in a different

Position on appeal and must close its eyes to the

record before it? Aside from the serious breach

in the established canons of constitutional ad-

judication through the rendering of an advisory

opinion unrelated to any facts or particular ap-

plication, the result of such a change in approach

Would be the extraordinary situation of review

here on a basis totally different from that of the

District Court. Respondent’s contention would

also mean that since review under the Criminal

Appeals Act would be divorced from faets or

allegations it Would be entirely different from re-

View of the Same case if the trig] judge had up-

held the information, if the allegations of the

information had been Proved and the defendants

convicted, the Court of Appeals had affirmed, and

this Court had granted certiorari to consider the

very same constitutions] issues raised by the orig-

al

inal motion te distuiss, Even respondent Harriss

<<attsensiaes

* There is no question that where issues of statutory con-

struction are involved under the Criminal] Appeals Act the

Court looks to “the facts alleged in the indictment.” United

States v. Beacon Brass Co... 344 U. S. 43, 47: 77 nited States

V. Hoy, 330 U. §. 24, 725; United Ntates v. Hood, 343 U.S.

148,

TE eee

BLURRED Copy

Tr.

ae

EIS Sate ait, SSA Aree

5

does not contend that where review js Via the

certiorari route this Court must not look at the

record. Though the Criminal Appeals Act docs

supply a shorter route to this Court, the end of

the journey is supposed to be

the same place.

Respectfully submitted.

~ Roserr L, STERN,

Acting Solicitor General,

| WarREN OLNry III,

Assistant Attorney General.

| Oscar H. Davis,

Special Assistant to the Attorney General.

BEATRICE ROSENBERG,

JOHN R. WILkins,

Attorneys.

approximately

OCTOBER 1953.

* ©. 5. Covermuger PRINTING OFPicg, 180

SERIO IRR ape CR opm PES MAIN it

ioe a de