Opposition Brief — Warren v. United States

INDEX

Page

Opinion below ......... De Sean RRO ew eka emae es 1

I Oc 2 lag Cine Wee AS S559 RARER TEAR DE REE ES 1

Questions presented ........ 2.26.0... cece eee eee eee ees 2

I NE oe dee eba ek yea wens bay ustvabewrees Pas 2

EE Tore occa ens ire are Va a Oe tA TREE re 3

eee eee eee eee eee eee ee ee ee 8

DEE CET PEROT CELT CTE TEC e rer er et 17

CITATIONS

Cases:

Bridges v. California, 314 U. S. 252..............-5.. 14

Chaplinsky v. New Hampshire, 315 U. S. 568.......... 14

Crain v. United States, 162 U. S. 625.................. 17

Connors v. United States, 158 U. S. 408.............. 17

Debs v. United States, 249 U.S. 211................... 13

Dunne v. United States, 138 F. 2d 137, certiorari denied,

CE Ae OL tte AOSTA Or GAN NAY partite tr Ra ere aoigr seer 13

Edwards v. United States, 312 U. 8S. 473.............. 16

Fraina v. United States, 255 Fed. 28.................. 8,13

Frohwerk v. United States, 249 U. 8S. 204.............. 13

Gara v. United States, decided November 28, 1949....... 9,13

Giboney v. Empire Storage Co., 336 U. S. 490....... i 14

Gilbert v. Minnesota, 254 U. S. 325................... 13

Gitlow v. New York, 268 U. S. 652.................... 14

Goldman v. United States, 245 U. S. 474............... 13

Gote v. Lane, 906 U. G. BBB... .. «6. cece - 16

Hamilton v. Regents, 293 U. S. 245.................. 16

Keegan v. United States, 325 U. 8. 478...... pias sd Mpeg

Ludecke v. Watkins, 335 U. S. 160............ gens 14

Okamoto v. United States, 152 F. 2d 905.............. 10

Pennekamp V. Florida, 328 U.S. 331..... Sar Pee ate 14

Prince v. Massachusetts, 321 U. S. 158..... or ee 15 ;

Reeder y. United States, 262 Fed. 36, certiorari denied, :

Ee Ree ee eee 8 ;

Ruthenberg v. United States, 245 U. 8. 480............ 13 4

Schenck v. United States, 249 U.S. 47................ 8,13 :

United States v. Anthony, 24 Fed. Cas. No. 14,459....... 10 F

Whitney v. California, 274 U. 8. 357... 0000. 14 :

Ex parte Young, 209 U. S. 123....................... 10 :

.

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(1)

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ea a a eat SS a ets ae a | .

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Statutes :

Page

Selective Draft Act of 1917, 40 Stat. 76, See. 6. ....... 8

Selective Training and Service Act of 1940, 50 U.S.C.

TE ME BCE Cr Ce the eau bho Res ae ge Kee N.2 12

Selective Service Act of June 24, 1948, c. 625, Title I, 62

Stat. 604 (50 U.S.C. App. 451):

AT etka tai ee WRT Ae a Pan AHORA 14

EO ree cDaR ed knit a ites inne ee 2

Be WE occa ck eis ecu ae) ae ee (04 oe

Miscellaneous:

EER GaN ae re errs a 15

S. Rep. No. 1268, 80th Cong., 2d Sess.......... es 13

~—

Ynthe Supreme Gourt of the Wnited States

OcToBER TERM, 1949

No. 468

Wrrat A. WARREN, PETITIONER

v.

UniTED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE TENTH

CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINION BELOW

The opinion of the Court of Appeals (R. 83-90)

is not yet reported.

JURISDICTION

The judgment of the Court of Appeals was en-

tered on October 31, 1949 (R. 90). The petition

for a writ of certiorari was filed on November 30,

1949. The jurisdiction of this Court is invoked

under 28 U.S. C. 1254(1). See also Rules 37(b) (2)

and 45(a), F. R. Crim. P.

(1)

2

QUESTIONS PRESENTED

1. Whether one ‘‘who knowingly counsels * * *

another to refuse or evade registration’’ under the

Selective Service Act may be convicted of violat-

ing Section 12(a) of that Act despite the fact that

his advice is not followed.

2. Whether the trial court committed reversible

error in not instructing the jury, as petitioner re-

quested, that a bona fide purpose on his part to se-

cure a judicial test of the validity of Section 12(a)

of the Selective Service Act would constitute a

valid defense.

3. Whether Section 12(a) of the Selective Serv-

ice Act of June 24, 1948, either inherently or as

applied in the instant case, is invalid under the

First Amendment as an unwarranted restriction

of the freedoms of speech and religion.’

STATUTES INVOLVED

The pertinent provisions of the Selective Service

Act of June 24, 1948, c. 625, Title I, 62 Stat. 604

(5u U.S. C. App. 451) are as follows:

See. 3. Except as otherwise provided in this

title, it shall be the duty of every male citizen

of the United States, and every other male per-

son residing in the United States, who, on the

day or days fixed for the first or any subsequent

registration, is between the ages of eighteen

1 Other questions raised by the petitioner as to the validity

of the indictment, self-incrimination, and alleged improper

instructions (Pet. 5) are not deemed worthy of separate state-

ment and are briefly treated infra, note 8, pp. 16-17.

_

3

and twenty-six, to present himself for and

submit to registration at such time or times

and place or places, and in such manner, as

shall be determined by proclamation of the

President and by rules and regulations pre-

scribed thereunder.

x * * * *

Sec. 12. (a) Any member of the Selective

Service System or any other person charged

as herein provided with the duty of carrying

out any of the provisions of this title, or the

rules or regulations made or directions given

thereunder, who shall knowingly fail or neg-

lect to perform such duty, * * * or who

knowingly counsels, aids, or abets another

to refuse or evade registration or service in

the armed forces or any of the requirements

of this title * * * shall, upon conviction

in any district court of the United States of

competent jurisdiction, be punished by im-

prisonment for not more than five years or

a fine of not more than $10,000, or by both

such fine and imprisonment * * *.

STATEMENT

On December 2, 1948, petitioner Wirt A. Warren,

forty years old, a practicing physician in Wichita,

Kansas, was charged in the United States District

Court for the District of Kansas with knowingly

counseling, on or about October 23, 1948, Walter

Dean Murrah, who was required to register for

training and service in the United States armed

forces under the 1948 Selective Service Act, to

4

refuse and evade such registration in violation of

§ 12(a) of the Act (R. 4, 34),

The evidence adduced at the trial is undisputed

and is briefly set forth:

Petitioner, a Unitarian Church member and op-

posed to war, believing that its elimination could

best be effected by resistance to compulsory mili-

tary training and for the purpose of informing

the Government of his beliefs and his actions

pertaining thereto, wrote the following letter to

the Department of Justice on September 22, 1948

(R. 35, 36, 37, 38, 39, 41-42, 52) :

This will inform you that I am not obeying

and do not intend to obey Paragraph a, of

Section 12 of the Selective Service Act of 1948,

which is that portion of the Act which provides

a penalty for knowingly counseling, aiding, or

abetting another to refuse or evade registra-

tion or service with the armed forces.

I have urged my stepson, W. Dean Murrah,

and others not to register under the Selective

2 Petitioner filed a motion to dismiss the indictment as bad

for duplicity and uncertainty because it also charged in the

same count that petitioner knowingly counseled Murrah to

refuse to serve in the armed services (R. 4, 5-6, 32-33). The

court denied the motion holding that the inclusion of such

language was not particularly “objectionable” since no evidence

was introduced in support of this charge and he would so charge

the jury (R. 33). Accordingly, the jury was instructed that

the sole issue in the case was whether petitioner knowingly

counseled Murrah to refuse to register (R. 71, 72, 75). In

connection with the counseling, the indictment originally

charged that petitioner “did unlawfully, willfully, * * *

openly and intentionally advocate, [and] advise’ Murrah to

evade registration but on petitioner’s motion, the quoted words

were stricken as surplusage (R. 4, 5).

5

Service Act of 1948, and I intend to continue

to counsel him and others to refuse registra-

tion and service under this law.

The Selective Service Act of 1948, is a law

which I feel morally bound to break. I have

arrived at this conclusion entirely on a per-

sonal basis and not as the result of influence

by any religious, pacifist, or political group.

In particular I wish to make it clear that I am

neither a Communist nor a fellow-traveler.

[R. 19-20, Gov. Ex. 1.]

A tew weeks prior to October 20, 1948, the eight-

eenth birthday of petitioner’s stepson, Walter

Dean Murrah * and the date on which Murrah be-

came eligible for registration under the Selective

Service Act, petitioner, while working about the

house with Murrah and entirely on his own initia-

tive, advised him not to register for military train-

ing when he became of age (R. 22-23, 27, 41, 46-47).

When Murrah indicated that such action consti-

tuted a criminal offense, punishable by imprison-

ment, petitioner replied, ‘‘that might be the best

thing to do” (R. 23, 41, 47). As an alternative,

he suggested that Murrah leave for Canada or

Mexico, with petitioner bearing the expense (R.

23,41). He continued to so advise Murrah on sev-

eral occasions thereafter up to October 25, 1948

(R. 46, 47, 48), but Murrah ignored the advice

3 Petitioner provided an education and a home for Murrah

with him, his wife (Murrah’s mother whom he married in

1939), and their two children (R. 21, 24, 34-35).

a

6

and registered as required on that date (R. 23-24,

48).

Upon receipt of the above-quoted letter by the

Department of Justice, two Federal Bureau of In-

vestigation agents interviewed petitioner in his

office in November 1948. Petitioner freely and

without any coercion whatsoever, after being

warned that the interview was entirely voluntary,

that he had a right to a lawyer and that anything

he said could be used against him, said (and re-

iterated at the trial) that during World War II

by virtue of his classification as a conscientious

objector, he served in a conscientious objector’s

camp and later as a physician in the Eastern State

Hospital at Williamsburg, Virginia; that having

received a copy of the 1948 Selective Service Act

from his Congressman in June 1948 and studied

it, he was familiar with all its provisions, particu-

larly the prohibitions contained therein against

his actions relating to counseling to evade registra-

tion; that irrespective of this, ‘‘his belief was such

that he could not conscientiously obey this law

and that asa result * * * it was necessary for

him to advise people not to register’’; that pursu-

ant to such belief he so counseled Murrah; that al-

though he had not as yet counseled others in this

manner, he intended to do so; and that he placed

in his waiting room pamphlets urging non-regis-

tration. (R. 25-30, 39-40, 41, 42, 45, 46-47, 48,

50, 52.)

_—

7

In his testimony, petitioner explained that the

motivating factor behind his advice to his stepson

was his honest and conscientious opposition to war

and violence for any purpose whatsoever, result-

ing from religious teaching, his own thinking and

reading from 1939 to date, and his belief that ‘there

are certain laws [relating to war particularly]

which are detrimental to mankind as a whole and

therefore should not be obeyed,’’—laws which he

felt ‘morally bound to break’’; that he desired to

inculcate these beliefs in Murrah as part of his

religious education and as ‘‘a way to the better life”’

(R. 36, 37, 38, 39, 41-42, 44, 45-46, 50, 52, 53, 54) ;

and that since 1940 his thinking on the subject had

evolved to a point where he felt that merely regis-

tering as a conscientious objector was not a suffi-

ciently vigorous expression of opposition to war

(R. 37-38). On direct examination, in reply toa

question whether his purpose in counseling was

to test the validity of the law, petitioner replied

in the affirmative (R. 52, 55).

At the conclusion of the trial, the judge (Mel-

lott, D. J.) denied petitioner’s request to instruct

the jury to the effect that a bona fide intent to test

the validity of the law in question was a valid

defense to a charge of ‘‘knowingly counseling”’

(R. 7, 62) and instead charged the jury as follows

(R. 74):

In outlining to you the charge made in this

case you will remember that I used the word

‘knowingly’? that the defendant did know-

—

8

ingly counsel. The word knowingly is not used

in this statute in any highly technical sense,

but it is to be taken in its ordinary and com-

monly understood meaning as designating an

act done intentionally, with an awareness of

what one is doing, and not the result of mere

disinterest, ignorance or inadvertence.

Petitioner was found guilty and sentenced to two

years’ imprisonment (R. 12-13, 80). On appeal, the

judgment of conviction was affirmed (R. 90).

° ARGUMENT

1. The petitioner contends (Pet. 18-21) that his

admitted counsel of refusal or evasion, not having

borne fruit since his stepson did in fact register

under the Selective Service Act, was not in viola-

tion of Section 12(a) of the Act. So to read the

Act of 1948 is to turn one’s back on history; for,

under World War I statutes relating to the same

type of offense as is here charged, this Court made

it perfectly clear that there was ‘‘no ground for

saying that success alone warrants making the act a

erime.’’ Schenck v. United States, 249 U. S. 47,

52; Goldman v. United States, 245 U. S. 474, 477;

see also Reeder v. United States, 262 Fed. 36 (C. A.

8), certiorari denied, 252 U. S. 581.* It is patent

4 The cases here cited involved conspiracies to violate the

Espionage Act of 1917. The point at issue in the case at bar

appears not to have been decided under the Selective Draft Act

of 1917, 40 Stat. 76, which in language perhaps more favorable

to petitioner’s contention than the present act in that it omits

the word “counsels”, penalized any person who “evades or aids

another to evade the requirements of this Act.” Section 6.

Cf. Fraina v. United States, 255 Fed. 28, 33 (C. A. 2).

-_

9

on the face of Section 12(a) that many primary

offenses are created which may be committed by

persons other than those who are required to regis-

ter or serve. Congress plainly intended to deter,

by these penal provisions, not only those who might

themselves be reluctant to register or serve in the

Nation’s armed forces, but also to curb any action

which would tend to interfere with speedy and

efficient operation of the Selective Service recruit-

ment machinery. The charge here involved is not

of a secondary, dependent offense; the statute

makes the counselling of which petititoner has

been convicted a primary, independent crime. This

is the conclusion recently announced by the Court

of Appeals for the Sixth Circuit in Gara vy. United

States, decided November 28, 1949.

9. Petitioner maintains that the jury was not

properly instructed, as requested, with regard to

the bearing upon criminal intent of an asserted

purpose on his part to test the validity of Section

12(a) (Pet. 9, 56-62). The trial judge charged the

jury (supra, pp. 7-8) that the statute requires only

that the defendant act intentionally and con-

sciously.

We submit that the denial of petitioner’s re-

quested instruction and the granting of the one

given was entirely correct. Assuming it to be

true, as petitioner contends, that a ‘“‘corrupt in-

tent’? is an element of the crime in question and

requires consciousness of wrongdoing, petitioner

~—_—

10

is not aided by this rule. He was clearly conscious

that his urging and counselling Murrah not to

register would violate the Act and, further, that

by failing to register, Murrah would also commit

a criminal offense (supra, pp. 4-5).

That he may have been conscious of no wrong-

doing in some moral or religious sense (cf. Pet.

56-59) is, if at all relevant, a defense not avail-

able at this stage. For petitioner requested no

instructions along these lines of the trial court

(R. 6-11) ; the question of consciousness of wrong-

doing vel non, even in the non-secular sense, is

one of fact for the jury, and an appellate court

cannot be asked to decide a question not sought to

be submitted to the jury.

Petitioner further contends that, despite his

knowledge that a violation of the statute was in-

volved in his conduct, he would be excused if his

purpose was in good faith to secure a test of the

constitutional issues,” under the authority of

Keegan v. United States, 325 U. S. 478, and Oka-

moto v. United States, 152 F. 2d 905 (C. A. 10),

based on the Keegan decision. But genuine be-

lief in the unconstitutionality of a statute is not

recognized as a valid defense. Ex parte Young,

209 U. S. 123, 147-148; United States v. Anthony,

24 Fed. Cas. No. 14,459 (C. C. N. D. N. Y.). As

* The uncontradicted testimony that petitioner suggested to

his stepson that he might go to Canada or Mexico at peti-

tioner’s expense, in order to escape registration (R. 23), leaves

little room for his present contention that he was seeking to

create a “test case”.

_——

11

Mr. Chief Justice Stone, expressing his dissenting

views and those of Mr. Justice Reed, Mr. Justice

Douglas, and Mr. Justice Jackson, in Keegan V.

United States, 325 U. S. 478, 505, put it:

Plainly one who would assail the validity of

a statute in a test case can do so only by vio-

lating its provisions, here by knowingly coun-

selling another to evade registration or service

in the armed forces. One who thus evaded or

counselled evasion of military service could

not defend on the ground that he violated the

Act in order to test its constitutionality. He

nevertheless does the act which the statute

prohibits and nonetheless intended to do it

even though his purpose was to establish that

the statutory prohibition is unconstitutional.

There is no freedom to conspire to violate a

statute with impunity merely because its con-

stitutionality is doubted. The prohibition of

the statute is infringed by the intended act in

any case, and the law imposes its sanctions

unless the doubt proves to be well founded.

In other words, petitioner’s contention is self-

contradictory : if the purpose to test constitutional

validity is a defense, there can be no test, for courts

will not render advisory constitutional opinions

where a case of violation of the statute has not been

made out.

The opinion in the Keegan case upon which the

petitioner relies, that of Mr. Justice Roberts, con-

curred in by Mr. Justice Frankfurter and Mr.

Justice Murphy (there being no opinion of the

12

Court), is not to the contrary. The judgment there

reflected rested on the view that the Government

had failed to prove a case of counselling ‘‘to evade

registration or service’? under Section 11 of the

Selective Training and Service Act of 1940, 50

U.S. C. App. 311. (Emphasis supplied by Mr.

Justice Roberts, 325 U. S. 4787) Mr. Justice Rob-

erts found a crucial distinction between the words

‘‘evade”’ and ‘‘refuse’’. The latter was not in

the 1940 Act and, Mr. Justice Roberts said,

‘*Plainly enough the Act distinguishes evasion, a

species of fraudulent conduct, from mere neglect

of duty and from forcible and violent interference

or resistance’’. 325 U.S. at 487. Evasion was said

to connote ‘‘artifice’’ and one ‘‘with innocent mo-

tives, who honestly believes a law is unconstitu-

tional and, therefore, not obligatory, may well

counsel that the law shall not be obeyed; * * *

but this is not knowingly counselling, stealthily

and by guile, to evade its command.”’ 325 U. S.

at 493-494, emphasis supplied.

These views have no bearing on this case. Con-

gress, in enacting the Act of 1948, here involved,

inserted the word ‘‘refuse’’ (see Section 12(a),

supra, p. 3) and thus supplied the omission dis-

cerned by Mr. Justice Roberts and those who joined

with him in the Act of 1940. The Senate Com-

mittee reporting on the bill which became the 1948

Act, pointed out that while it ‘‘is substantially a

reenactment of section 11 of [the 1940] act”’,

13

‘“eertain changes of language have been made to

incorporate judicial determinations made pursuant

to the predecessor act.’? S. Rep. No. 1268, 80th

Cong., 2d Sess. p. 20. Thus the general rule, re-

flected in Chief Justice Stone’s opinion in the

Keegan case, is here applicable.

3. Petitioner attacks Section 12(a) of the Selec-

tive Service Act as in violation of the freedoms of

speech and religion guaranteed by the First

Amendment. But the constitutional issues thus

tendered will be found, we believe, to be less novel

and extensive than petitioner maintains.

The question of abridgment of the right of free

speech, must be considered as settled by decisions

of this Court* in cases which involved attempts

by means of speeches and circulars to obstruct the

recruiting and enlistment of young men in the

service of the armed forces. The cases correspond

to that here, the only distinction being that they

did not involve the identical statute and the viola-

tions occurred during the period of actual hos-

tilities. The first distinction is clearly irrelevant

to the question of constitutionality since the statute

here prohibits the same class of offenses considered

6 Schenck v. United States, 249 U. S. 47; Gilbert v. Minne-

sota, 254 U. S. 325; Frohwerk v. United States, 249 U.S. 204;

Debs v. United States, 249 U. S. 211; Ruthenberg v. United

States, 245 U. S. 480; Goldman v. United States, 245 U.S. 474;

for decisions in other federal courts, see Dunne v. United

States, 138 F. 2d 137 (C. A. 8), certiorari denied, 320 U. S. 790;

Fraina v. United States, 255 Fed. 28 (C. A. 2); Gara v. United

States, decided November 28, 1949 (C. A. 6), involving the

identical statute.

14

in those cases—attempting to impede recruitment

by words. Likewise, the second distinction is not

significant in the circumstances of this case. Our

state of war has not yet ended (Ludecke v. Watkins,

335 U. S. 160) and it is clear, moreover, that the

power of Congress to ‘‘raise and support armies”’

and to ‘‘provide and maintain a navy”’ exists both

in peace and war.

Section 12(a) of the Selective Service Act of

1948 makes it unlawful knowingly to counsel non-

registration. Petitioner, while recognizing that

the rights guaranteed by the First Amendment are

not absolute, contends that there was no ‘“‘clear

and present danger’’ to national security justify-

ing the passage of such a measure (Pet. 26-31).

But Congress, in Section 1(b) of the Act here in-

volved, declared ‘‘that an adequate armed strength

must be achieved and maintained to insure

the security of this Nation.’? That declara-

tion must certainly suffice as an answer to

petitioner’s attack on the statute on its face

(Whitney v. California, 274 U. S. 357; Gitlow

v. New York, 268 U. S. 652). And even if

more is needed to sustain the validity of its appli-

cation to the case at bar, there is no real difficulty.

For the ‘‘substantive evil’’ of which there must

be a “‘clear and present danger’’ may be something

less than the destruction of our Government.’ The

7 Giboney v. Empire Storage Co., 336 U. S. 490; Chaplinsky

v. New Hampshire, 315 U. S. 568; Bridges v. California, 314

U. S. 252; Pennehamp v. Florida, 328 U. S. 331, particularly

Mr. Justice Frankfurter, concurring, at 328 U. S. 353.

_—

15

evil which Congress here sought, and had a right,

to prevent was resistance to the requirement of

registration. The question in this case must be

whether petitioner’s counsel to Murrah created a

clear and present danger of that evil. The answer,

we submit, is clear. Were the speaker’s relation-

ship with his auditor a less intimate one, were his

influence on the person being counselled less strong

than that of father on son, the question might be

more difficult. But when a father advises a son not

to register and offers to pay for an escape to Canada

or Mexico, the danger of resistance to registration

is clear and present if those words have any mean-

ing. And, if ‘incitement’? is a touchstone of

validity (cf. Pet. 6-7) it is present in this case.

Petitioner’s claim of infringement of freedom of

religion, buttressed by the claim of parental right,

may be similarly disposed of, for ‘it may be

doubted that any of the great liberties insured by

the First Article can be given higher place than

the others.”’ Prince v. Massachusetts, 321 U. 8.

158, 164. If petitioner’s freedom of speech argu-

ment must be rejected, so must this.

As was said in the Prince case, the state’s ‘‘au-

thority is not nullified merely because the parent

grounds his claim to control the child’s course of

conduct on religion or conscience.’’ 321 U. S. at

166. That principle was stated and appled in a

ease in which the child’s conduct in question was

itself an exercise of a right protected by the First

16

Amendment. Resistance to the draft, as such, has

no such stature. Counselling such resistance is,

consequently, no more immune from regulation in

the national interest than permitting preaching by

children on the streets.

Finally, petitioner’s attempt to deny that con-

scientious objection to service is a matter of legis-

lative grace, not constitutional right (Pet. 35-56,

but see Hamilton v. Regents, 293 U. S. 245, 264)

has no real relevance here. Any alleged “right”

to refuse to serve does not, of necessity, carry with

it the right to urge the same course on others.

That right to proselytize is, of course, the right

to speak or to practice one’s religion and it is not,

as we have sought briefly to show above, violated

by petitioner’s conviction.

This case is aptly described by Mr. Justice Car-

dozo, concurring in Hamilton v. Regents, 293 U. 8.

245, 268: ‘One who is a martyr to a principle—

which may turn out in the end to be a delusion or

an error—does not prove by his martyrdom that

he has kept within the law.”’*

‘Other questions raised by petitioner may be shortly dis-

posed of: (1) The indictment—the colloquy appearing at R.

76-78 disposes of the contention that the indictment was defec-

tive in that it failed to charge that petitioner's stepson was not

within any of the exceptions to the registration requirement

found in the Act. See also Edwards v. United States, 312 U. S.

473, 482-483. As shown in the Statement, supra, p. 5, peti-

tioner is plainly in error when he states (Pet. 63) that “The

proof is clear he [Murrah] was not 18 when counseled.” Nor

was the trial judge powerless to rule (R. 33) that the charge of

counselling refusal and evasion of service should not be sub-

mitted to the jury. Goto v. Lane, 265 U. S. 393, 402-403.

Finally, it is clear that the indictment was not void for du-

17

CONCLUSION

The decision of the court below is correct, and

there is no conflict of decisions. The petition for

a writ of certiorari should be denied.

Respectfully submitted,

y Puiuip B. PERLMAN,

Solicitor General.

Francis X. WALKER,

Acting Assistant Attorney General.

STaNLEY M. SILVERBERG,

v Special Assistant to

the Attorney General.

Rosert 8S. ErRDAHL,

, Fevicta H. Dusrovsky,

Attorneys.

JANUARY, 1950.

plicity. Crain v. United States, 162 U. S. 625, 634-636, and

cases cited; Connors v. United States, 158 U. S. 408, 410-411.

(2) Self-incrimination—the charge that the petitioner’s privi-

lege in this respect was violated by the admission in evidence

of his letter to the Department of Justice is baseless. Peti-

tioner was not forced to write it; he did so voluntarily. More-

over, he waived his privilege by taking the stand at his trial.

(3) Instructions—petitioner appears to complain of nothing in

the instructions which is not dealt with elsewhere under differ-

ent descriptive headings.

¥* U. S. GOVERNMENT PRINTING OFFICE: 1850 sesces 402