xt7msb3wtd0h_53 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/mets.xml https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2.dao.xml unknown 166 Cubic Feet 381 document boxes, seven textile items, three map folders, one artwork archival material 72m2 English University of Kentucky The physical rights to the materials in this collection are held by the University of Kentucky Special Collections Research Center.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Frederick Moore Vinson papers Economic stabilization. Elections -- United States -- Congresses. Judges -- Correspondence. Judges -- United States. Judicial opinions Judicial process -- United States Legislators -- Correspondence. New Deal, 1933-1939. World War, 1914-1918 -- Veterans. World War, 1939-1945. Dennis v. USA - no. 14 text Dennis v. USA - no. 14 2019 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2/Box_209/Folder_3/Multipage6291.pdf 1949 1949 1949 section false xt7msb3wtd0h_53 xt7msb3wtd0h £813»

,,,m.
fl_nw

6,V19h9
3 IV;

ifincémber l

Jujaétioe Mintdn

5 nr

‘ 3|; anvwzf

 

 4 4 Cf ,; ..'i’.é:.¥f/.’.,,.tse-¢ , . ,,

: SUPREME COURT OF THE UNITED STATES
No. 14.—OCTOBER TERM, 1949.

On Writ of Ccrtiorari

Eugene Dennis, Petitioner, to the United States

1). Court of Appeals for

The United States of America. the District of Colum—
bia Circuit.

[December —, 1949.]

MR. JUSTICE MINTON delivered the opinion of the
Court.

The question we have for determination here is whether
a challenge for cause to jurors on voz'r dire because of
employment by the Federal Government should have
been sustained under the circumstances of this case.

Petitioner was convicted of violating R. S. §102, 2
U. S. C. § 192, for willfully failing to appear before the
Committee on Uri—American Activities of the House of
Representatives in compliance with a subpoena- duly
served upon him. The Court of Appeals affirmed, 84
U. S. App. D. C. —) 171 F. 2d 986. We granted certio—
rari limited to the question whether Government em—
ployees could properly serve on the jury which tried
petitioner. 337 U. S. 954.

Petitioner voluntarily appeared before the House Com—
mittee on Un-American Activities which had under con-
sideration two bills to outlaw the Communist Party.
Petitioner was and is General Secretary of the Communist
Party of the United States. On his voluntary appearance
before the Committee, petitioner refused to answer ques—
tions as to his name and the date and place of his birth.
The Chairman of the Committee directed that a subpoena
be served forthwith upon petitioner, requiring him to
appear before the Committee on April 9, 1947. On the

 

 14
2 DENNIS v. UNITED STATES.

appointed date petitioner sent a representative but did
not appear in accordance with the subpoena. Petitioner’s
refusal was reported to the House of Representatives by
the Committee. The House in turn adopted a resolution
certifying the report of the Committee to the United
States Attorney for the District of Columbia. Petitioner
was subsequently indicted.

When the case was called for trial petitioner moved for
a change of venue upon the ground that he could not
obtain a fair and impartial trial in the District of Colum-
bia. Petitioner posited this contention, in his affidavit
supporting the motion, mainly on the ground that the
Government employees who make up a large part of the
District’s population are subject to Executive Order 9835,
12 Fed. Reg. 1935, providing for their discharge upon
reasonable grounds for belief that they are disloyal to
the Government of the United States. The motion for
a transfer was denied.

Both sides conducted further voir dire examination at
the conclusion of the court’s questioning of the panel.
Attorney for petitioner questioned individually each mem-
ber of the panel who indicated that he was employed by
the Government. He then challenged for cause all Gov—
ernment employees. The court denied the challenge.
Three jurors were excused for cause. Petitioner exercised
two of his three peremptory challenges against Govern-
ment employees. He exhausted all his peremptory chal-
lenges. Seven of the twelve finally selected were Govern-
ment employees. Each expressed the belief that he could
render a fair and impartial verdict.

Is petitioner entitled to a new trial because his chal-
lenge to the Government employees for cause was not
sustained? The question of the presence of Government
employees on District of Columbia juries is not a new
controversy. It has been before this Court on three pre-
vious occasions. Crawford v. United States, 212 U. 9.

 

 14
DENNIS v. UNITED STATES. 3

183; United States V. Wood, 299 U. S. 123; Frazier V.
United States, 335 U. S. 497. In the Crawford case the
defendants were charged with a conspiracy to defraud the
United States. The Court held that the statute pre-
scribing the eligibility of jurors in the District of Columbia
did not control the subject. The Court turned to the
common law in force in hIaryland when the District was
formed, and found that. a servant was subject to challenge
for cause at common law where the master was party to
the case on trial. In such a case, bias would be implied
as a matter of law. The Court. concluded that it. was
error to deny a challenge for cause to a Government em-
ployee in a case to which the Government was a party.

In 1935 Congress, prompted by the paucity of qualified
jurors which resulted from the Crawford decision, passed
an Act redefining eligibility for jury service in the Dis—
trict of Columbia. After exempting certain classes, the
Act provided: ”All other persons, otherwise qualified ac—
cording to law whether employed in the service of the
Government. of the United States or of the District of
Columbia . . . shall be qualified to serve as jurors in the
District of Columbia and shall not be exempt. from such
service . . . .” 49 Stat. 682, D. C. Code, § 11~1420
(1940).

The constitutionality of this Act was sustained in
United States V. Wood, 299 U. S. 123, where the defendant
was charged with petty larceny from a private corpora—
tion. The defendant’s contention was that the presence
of Government. employees on the jury denied the right of
trial by an impartial jury within the meaning of the Sixth
Amendment to the Constitution of the United States.
He pointed out that under the common law as expounded
by Blackstone, a King's servant and therefore a Govern—
ment employee could not serve on a jury and argued that
this View was carried into the Sixth Amendment.

 

 14
DENNIS 1'. T'NITED STATES.

Chief Justice Hughes. speaking for the Court. meticu-
lously examined the problem. He found that Black—
stone’s statement of disqualification had reference only
to servants of private parties and that there was no estab—
lished practice with respect to the King‘s servants at
common law. The Court was of the view that even if
such a common law disqualification existed, Congress had
power to remove it. Unlike the statute in the Crawford
case. this statute left no doubt that Congress intended
to qualify Government employees as jurors. The consti—
tutionality of such a declaration was presented for the
first time. It was carefully emphasized that the Act left
accused persons free to show the existence of actual bias.
Only the question of implied bias was presented. The
Court- concluded that the guarantee of an impartial jury
was not impaired, stating:

“It is manifest that the Act was passed to meet a,
public need and that no interference with the actual
impartiality of the jury was contemplated. The en—
actment itself is tantamount to a legislative decla—
ration that the prior disqualification was artificial
and not necessary to secure impartiality. . . . To
impute bias as a matter of law to the jurors in ques—
tion here would be no more sensible than to impute
bias to all storeowners and householders in cases of
larceny or burglary.” United States v. Wood, 299
U. S. 123. 148—150.

Only last term in Frasier v. United States, 335 U. S.
497. the problem of jury service by Government employ—
ees was reexamined. There the defendant was tried and
convicted of violating the Narcotics Act by a jury of the
District of Columbia composed entirely, due to circum-
stances fortuitous or otherwise, of Federal Government
employees. Mr. Justice Rutledge. speaking for the Court,
reexamined the rule of the Wood case that Government

 

 14
DENNIS 1'. 'L'NITED STATES. 5

employees are not disqualified as a matter of law from
serving on a jury in a case to which the Government
is a party. Government employees were again held to
be subject to challenge only for “actual bias.”

It would be a work of supererogation to attempt to
clarify the statement of the law after the Wood and
Frazier eases. Some may doubt the wisdom of the
Court’s decision in laying down the rule. but there can
be no doubt that this Court has spoken very clearly, not
only once. but twice.

No question of actual bias is before us. The way is
open in every case to raise a contention of bias from
the realm of speculation to the realm of fact. In both
the Wood and Frazier cases this Court stressed that while
impaneling a jury the trial court has a. serious duty to
determine the question of actual bias, and a broad dis—
cretion in its rulings on challenges therefor. United
States v. Wood, 299 U. S. 123, 133434, 150; Frazier v.
United States, 335 U. S. 497, 511—512. We reaffirm those
principles. In exercising its discretion, the trial court
must be zealous to protect the rights of an accused. And
we agree that this the court must do without reference
to an accused’s political or religious beliefs, however such
beliefs may be received by a. predominant segment of
our population. Ideological status is not an appropriate
gauge of the high standard of justice toward which our
courts may not be content only to strive. But while
one of an unpopular minority group is not entitled to
less solicitude, neither may he seek unusual protection or
exception.

Petitioner asserts that in the special circumstances of
this case, Government employees should be held to be
biased as a matter of law in order to secure the consti-
tutional guarantee of trial by an impartial jury. It is
not contended that such circumstances appear as facts
in the record. As far as it appears, the court was willing

 

 14
6 DENNIS v, UNITED STATES.

to listen to any testimony which would indicate that
investigatory agencies of the Government had in the past
or would in the future take cognizance of a vote of ac—
quittal, but no such proof was made. Nor was there
testimony with respect to the existence of a climate of
opinion among Government employees that they would
jeopardize their tenure or provoke investigation by such
a verdict. Rather petitioner asks that bias be implied
from the recitation of the following circumstances: He
is a Communist; the instigator of the charges was the
Un—Ainerican Activities Committee which allegedly
would take notice of a vote for acquittal; the issue in
the case is contempt of Congress; in contempt cases
the Government’s interest is the vindication of a direct
affront as distinguished from its role in an ordinary prose—
cution. But petitioner primarily relies on the aura of
surveillance and intimidation which is said to exist in
the District because of Executive Order 9835, outstanding
at the time of the trial.

The “Loyalty Order,” as it is popularly known, requires
the investigation of all persons entering civilian employ—
ment with the United States; as to those already in
service, heads of departments or agencies are responsible
to make certain that disloyal persons are not retained.
Petitioner maintains that because of this Order, Govern—
ment employees would be hesitant. to vote for acquittal
because such action might be interpreted as “sympathetic
association” with Communism.

Of course, the Loyalty Order could be the subject of
judicial notice. Such notice, however, would give only
limited illumination. It is proper to observe that the
Loyalty Order is not directed solely against Communists,
and the crime of which petitioner was convicted is not
a crime peculiar to Communists. Further, the Loyalty
Order preceded the instant trial only by about three

 

 14
DENNIS v. UNITED STATES. 7

months. It was promulgated by the President on March
21, 1947. This trial began on June 23, 1947, and was
concluded on June 26, 1947. On May 9, 1947, the Presi—
dent submitted to Congress a. request for an appropria—
tion to carry out. the Loyalty Order,1 which was not
enacted into law until July 31, 19417.2 It was not until
August. 18, 1947, that Standard Form 84, requesting cer—
tain pertinent information from each federal employee,
was made available."

The administrative implementation of Executive Order
983.3, which vas yet to come. was apparently not the
subject of anticipatory fear by these jurors. Their an—
swers to interrogatories on the influence of the Loyalty
Order were categorically to the contrary." We must credit

Jll. lt. lloe. 242, 80111 Cong, lst {\‘ess. (104R); Eli-l Cong. lee.
4077 (10717).

2(31 Stat. 700. See leport of the Investigations Subcommittee on
Expenditures, Investigation of Federal Employees Loyalty Program,
S. llep. No. 1775, {\(lth Cong, 2d Sess. 3 (1948).

"Federal l’ersonnel Manual 1, 2—4. In a press release dated
November 7, 1047, the Civil Serviee Commission announced the
appointment of the Loyalty lleview Board. On December 17, 1947,
the ’ioard issued a statement with respect to its regulations, which
was published on January 130, 151—18. l31’ed.lteg.2:33.

“"Mr. Kit-(Kaine: You are familiar with the Government loyalty
oath investigation 1’

“Juror llou-‘onn: I believe 1 am. I have heard something of it.

“Mr. MeCwiuc: Do you l'eel that renderingr a verdict of not guilty
in this ease, it' you come to that conclusion, it would stop you, any
critieism or emlnirrassment among.r your fellow employees?

“Juror llolriv‘onn: None whatsoever.

“Mr. MeCAmc: Or by your superiors '.’

“Juror llomonn: No.

“Mr. i\le(‘.\nic: You would not have any thought that would be
taken as evidence of friendliness to eonnnunisni‘.’

"Juror lloiir‘oin): No: I am not worried about my job that way."

“Mr. Met'iniaz Now, Mr. Jones, you have heard, have you, of

 

 14
S DENNIS 7:. I'NITICI) STATES.

these representations. and this is particularly so in the
absence of any evidence which would indicate an opposite
opinion among Government employees. One may not
know or altogether understand the imponderables which
cause one to think what he thinks. but surely one who
is trying as an honest man to live up to the sanctity of
his oath is well qualified to say whether he has an un—
biased mind in a certain matter.

Ultimately, petitioner‘s contentions amount to this:
Since he is a Communist. an exception must he carved
out of the rule laid down in the statute. and construed
in Wood and Frazier, that there is no implied bias by
reason of Government employment. Thus the rule would
apply to anyone but a. Communist tried for contempt
of a congressional committee, but not to a Communist.
We think the rule in Wood and Frazier should be tini—
formly applied. A holding of implied bias to disqualify
jurors because of their relationship with the Government
is no longer permissible. The Act. makes no exception
for distinctive circumstances. It states that: “All . . .
persons . . . whether employed in the service of the Gov—

the loyalty test or loyalty investigation which is going on to test the

loyalty of Government employees?

"Mr. .loxics: Yes, I have.

“Mr. MeCABiiz Are you aware of the fact that one of the tests
that might disqualil'y or prevent you from Government employment
is friendly association with any Communist person or any Communist

Have you heard of that 2’

organizations?

"Mr. .onics: That would not. I am a Civil Service employee.
I have taken an examination for my jf)l).

“Mr. MeCAHIc: Yes. Are you aware of the fact that, despite any
Civil Service 1'n'oteetion, still a finding that you were in l'riendly
association with any Communist or Communist organization would
render you ineligible to continue in your Government position?

“Mr. .loxics: It would not.

"Mr. MeCAnia: What 2’

"Mr. .loxi:s: It would not.”

The replies (if the other jurors were in a similar vein.

 

 14
DENNIS ‘1. UNITED STA’I‘ES. 0

ernment. of the United States or of the District of Co—
lumbia . . . shall be qualified to serve as jurors in the
District of Columbia and shall not be exempt from such
service . .” As long as an impartial jury is secured,
regulation of jury service in the District of Columbia
lies with Congress. Preservation of the opportunity to
prove actual bias is a guarantee of the defendant's right
to an impartial jury. We adhere to our holding that
the enactment. of the statute is within the power of Con—
gress, and that therefore employees of the Federal Gov-
ernment are not challengeable solely by reason of their
employment.

It follows that we are unable to conclude that the failure
to sustain the challenge for cause denied petitioner an
“impartial jury.” “Impartiality is not a technical con—
ception. It is a state of mind. For the ascertainment
of this mental attitude of appropriate indifference) the
Constitution lays down no particular tests and procedure
is not chained by any ancient and artificial formula.”
United States v. Wood, 299 U S. at 145—146. No more
than the trial court can we without injustice take judicial
notice of a miasma of fear to which Government em—
ployees are claimed to be peculiarly vulnerable and from
which malady other citizens are by implication im-
munized. Vague conjecture does not convince that Gov—
ernment employees are so intimidated that they cringe
before their Government in fear of investigation and loss
of employment if they do their duty as jurors, which
this same Government has imposed upon them. There is
no disclosure in this record that these jurors did not bring
to bear, as is particularly the custom when personal lib-
erty hinges on the determination, the sense of responsibil—
ity and the individual integrity by which men judge
men.

The judgment is

Affirmed.

 

 “mm...
H “H...” m‘r‘"

A ’1 //
/*///C--m.-n....“mw
.,,_ -W. __ ..,/. _

SUPREME COURT OF THE UNITED STATES
No. 14.—OCTOBER TERM, 1949.

On “hit of Certiorari

Eugene Dennis, Petitioner, to the United States

U. Court of Appeals for

The United States of America. the District of Colum—
bia Circuit.

[December ~—, 1949.]

MR. Jt‘sTICE MIN'roN delivered the opinion of the
Court.

The question we have for determination here is whether
a challenge for cause to jurors on voz'r dire because of
employment by the Federal Government should have
been sustained under the circumstances of this case.

Petitioner was convicted of violating R. S. §102. 2
U. S. C. § 192, for willfully failing to appear before the
Committee 011 [Hi-American Activities of the House of
Representatives in compliance with a subpoena duly
served upon him. The Court of Appeals affirmed, 84
U. S. App. D. C. ———, 171 F. 2d 986. We granted certio—
rari limited to the question whether Government em—
ployees could properly serve on the jury which tried
petitioner. 337 U. S. 954.

Petitioner voluntarily appeared before the House Com—
mittee on Un—American Activities which had under con-
sideration two bills to outlaw the Communist Party.
Petitioner was and is General Secretary of the Communist
Party of the United States. On his voluntary appearance
before the Committee, petitioner refused to answer ques—
tions as to his name and the date and place of his birth.
The Chairman of the Committee directed that a subpoena
be served forthwith upon petitioner, requiring him to
appear before the Committee on April 9, 1947. On the

 

 14:
2 DENNIS v. UNITED STATES.

appointed date petitioner sent a representative but did
not appear in accordance with the subpoena. Petitioner’s
refusal was reported to the House of Representatives by
the Committee. The House in turn adopted a resolution
certifying the report of the Committee to the United
States Attorney for the District of Columbia. Petitioner
was subsequently indicted.

When the case was called for trial petitioner moved for
a change of venue upon the ground that he could not
obtain a fair and impartial trial in the District of Colum—
bia Petitioner posited this contention, in his affidavit
supporting the motion mainly on the ground that the
Government employees who make up a large part of the
District’s population are subject. to Executive Order 9835,
12 Fed. Reg. 1935, providing for their discharge upon
reasonable grounds for belief that they are disloyal to

the Government. of the United States. Petitioner argued ;

i

that Government employees would be afraid to risk the:j
charge of disloyalty or possible termination of employ—f
ment which would allegedly flow from a vote for acquittal. .

The motion for a transfer was denied.

Both sides conducted further voir dire examination at
the conclusion of the court’s questioning of the panel.
Attorney for petitioner questioned individually each mem—
ber of the panel who indicated that he was employed by

the Gov einment. He then challenged for cause all Gov— l

eminent employees (aw-Wt

I

The (ouit (lenied the ch alleiige. Petitioner exerc1sed two

of his tlnee peiemptOIy challenges against Govern-
ment employees. He exhausted all his peremptory chal~
lenges. Seven of the twelve finally selected were Govern—
ment employees. Each expressed the belief that he could
render a fair and impartial verdict.

Is petitioner entitled to a new trial because his chal-
lenge to the Government employees for cause was not

 

 14
DENNIS v. UNITED STATES. 3

sustained? The question of the presence of Government
employees 011 District of Columbia juries is not a new
controversy. It has been before this Court on three pre-
vious occasions. Crawford V. United States, 212 U. S.
183; United States V. Wood, 299 U. S. 123; Frazier V.
United States, 335 U. S. 497. In the Crawford case the
defendants were charged with a conspiracy to defraud the
United States. The Court held that the statute pre—
scribing the eligibility of jurors in the District of Columbia
did not control the subject. The Court turned to the
common law in force in Maryland when the District was
formed, and found that a servant was subject to challenge
for cause at common law where the master was party to
the case on trial. In such a case, bias would be implied
as a matter of law. The Court concluded that it was
error to deny a challenge for cause to a Government em—
ployee in a case to which the Government was a party.

In 1935 Congress, prompted by the paucity of qualified
jurors which resulted from the Crawford decision, passed
an Act redefining eligibility for jury service in the Dis—
trict of Columbia. After exempting certain classes, the
Act provided: “All other persons, otherwise qualified ac—
cording to law whether employed in the service of the
Government of the United States or of the District of
Columbia . . . shall be qualified to serve as jurors in the
District of Columbia and shall not be exempt from such
service . . . .” 49 Stat. 682, D. C. Code, § 11-1420
(1940).

The constitutionality of this Act was sustained in
United States V. Wood, 299 U. S. 123, where the defendant
was charged with petty larceny from a private corpora-
tion. The defendant’s contention was that the presence
of Government employees on the jury denied the right of
trial by an impartial jury within the meaning of the Sixth
Amendment to the Constitution of the United States.
He pointed out that under the common law as expounded

 

 14
4 DENNIS v. UNITED STATES.

by Blackstone, at King’s servant and therefore a Govern-
ment employee could not serve on a jury and argued that
this view was carried into the Sixth Amendment.

Chief Justice Hughes, speaking for the Court, meticu—
lously examined the problem. He found that Black—
stone’s statement of disqualification had reference only
to servants of private parties and that there was no estab-
lished practice with respect to the King’s servants at
common law. The Court was of the view that even if
such a common law disqualification existed, Congress had
power to remove it. Unlike the statute in the Crawford
case, this statute left no doubt that Congress intended
to qualify Government employees as jurors. The consti-
tutionality of such a declaration was presented for the
first time. It was carefully emphasized that the Act left
accused persons free to show the existence of actual bias.
Only the question of implied bias was presented. The
Court concluded that the guarantee of an impartial jury
was not impaired, stating:

“It is manifest that the Act was passed to meet a
public need and that no interference with the actual
impartiality of the jury was contemplated. The en—
actment itself is tantamount to a legislative decla—
ration that the prior disqualification was artificial
and not necessary to secure impartiality. . . . To
impute bias as a matter of law to the jurors in ques-
tion here would be no more sensible than to impute
bias to all storeowners and householders in cases of
larceny or burglary.” United States v. Wood, 299
U. S. 123, 148—150.

Only last term in Frazier v. United States, 335 U. S.
497, the problem of jury service by Government employ—
ees was reexamined. There the defendant was tried and
convicted of violating the Narcotics Act by a jury of the
District of Columbia composed entirely, due to circum—
stances fortuitous or otherwise, of Federal Government

 

 14
DENNIS v. UNITED STATES. 5

employees. Mr. Justice Rutledge, speaking for the Court,
reexamined the rule of the Wood case that Government
employees are not disqualified as a matter of law from
serving on a jury in a case to which the Government
is a party. Government employees were again held to
be subject to challenge only for “actual bias.”

It would be a work of supererogation to attempt to
clarify the statement of the law after the Wood and
Frazier cases. Some may doubt the wisdom of the
Court’s decision in laying down the rule, but there can
be no doubt that this Court has spoken very clearly, not
only once, but twice.

No question of actual bias is before us. The way is
open in every case to raise a contention of bias from
the realm of speculation to the realm of fact. In both
the Wood and Frazier cases this Court stressed that while
impaneling a jury the trial court has a serious duty to
determine the question of actual bias, and a broad dis-
cretion in its rulings on challenges therefor. United
States V. Wood, 299 U. S. 123, 133-134, 150; Frazier v.
United States, 335 U. S. 497, 511—512. We reaffirm those
principles. In exercising its discretion, the trial court
must be zealous to protect the rights of an accused. And
we agree that this the court must do without reference
to an accused’s political or religious beliefs, however such
beliefs may be received by a predominant segment of
our population. Ideological status is not an appropriate
gauge of the high standard of justice toward which our
courts may not be content only to strive. But while
one of an unpopular minority group must be accorded
that solicitude which properly accompanies an accused '
person, he is not entitled to unusual protection or ,
exception. '

Petitioner asserts that in order to secure the eonstitu— ';
tional guarantee of trial by an impartial jury all Gov— i
ernnient employees must be held, in the special circuni—
stances of this case, to be biased as a matter of law, It 5;

 

 14
6 DENNIS v. UNITED STATES.

is not contended that swell bias appears as a fact from the /
record. As far as it appears, the court was willing to 1/
consider any evidence which would indicate that lllVCS-E

tigatory agencies of the Government had recognized ini
the past or would take cognizance in the future of a vote}:
of acquittal, but no such proof was made. Nor was therel
evidence with respect to the existence of a climate ofg
opinion among Government employees that they would

jeopardize their tenure or provoke investigation by such

a verdict. Rather petitioner asks that bias be implied

from the recitation of the following circumstances: He

is a Communist; the instigator of the charges was the

Uri-American Activities Committee which allegedly

would take notice of a vote for acquittal; the issue in

the case is contempt of Congress; in contempt cases

the Government's interest is the vindication of a direct

affront as distinguished from its role in an ordinary prose—

cution. But petitioner primarily bases his case on a ‘
request, in effect, that judicial notice be taken of an aura

of surveillance and intimidation which is said to exist in

the District because of Executive Order 9835, outstanding

at the time of the trial.

The “Loyalty Order,” as it is popularly known, requires
the investigation of all persons entering civilian employ—
ment with the United States; as to those already in
service, heads of departments or agencies are responsible
to make certain that disloyal persons are not retained.
Petitioner maintains that because of this Order, Govern—
ment employees would be hesitant to vote for acquittal
because such action might be interpreted as “sympathetic
association” with Communism.

Of course, the Loyalty Order could be the subject of
judicial notice. Such notice, however, would give only
limited illumination. It is proper to observe that the
Loyalty Order is not directed solely against Communists,
and the crime of which petitioner was convicted is not
a crime peculiar to Communists, Further, the Loyalty

 

 14
DENNIS v. UNITED STATES. 7

Order preceded the instant trial only by about three
months. It was promulgated by the President on March
21, 1947. This trial began on June 23, 1947, and was
concluded on June 26, 1947. On May 9, 1947, the Presi-
dent submitted to Congress a request for an appropria—
tion to carry out the Loyalty Order,1 which was not
enacted into law until July 31, 1947.2 It was not until
August 18, 1947, that Standard Form 84, requesting cer—
tain pertinent information from each federal employee,
was made available.3

The administrative implementation of Executive Order
9835, which was yet to come, was apparently not the
subject of anticipatory fear by these jurors. Their an—
swers to interrogatories on the influence of the Loyalty
Order were categorically to the contrary.“ We must credit

1H. R. Doc. 242, 80th Cong, 1st Sess. (1948); 93 Cong. Rec.
4977 (1947).

2 61 Stat. 700. See Report of the Investigations Subcommittee on
Expenditures, Investigation of Federal Employees Loyalty Program,
S. Rep. No. 1775, 80th Cong, 2d Sess. 5 (1948).

3Federal Personnel Manual 12—4. In a press release dated No—
vember 7, 1947, the Civil Service Commission announced the ap—
pointment of the Loyalty Review Board. On December 17, 1947,
the Board issued a statement with respect to its regulations, which
was published on January 20, 1948. 13 Fed. Reg. 253.

4“Mr. MCCABE: You are familiar with the Government loyalty
oath investigation?

“Juror I'IOLFORDI I believe I am. I have heard something of it.

“Mr. MCCABE: Do you feel that rendering a verdict of not guilty
in this case, if you come to that conclusion, it would stop you, any
criticism or embarrassment among your fellow employees?

“Juror IIOLFORDZ None whatsoever.

“Mr. MCCAHH: Or by your superiors?

“Juror IIOLFORDZ No.

“Mr. MCCABE: You would not have any thought that would be
taken as evidence of friendliness to communism?

“Juror IIOLFonD: No; I am not worried about my job that way.”

“Mr. MCCABE: Now, Mr. Jones, you have heard, have you, of

 

 14
8 DENNIS v. UNITED STATES.

these representations, and this is particularly so in the
absence of any evidence which would indicate an opposite
opinion among Government employees. One may not.
know or altogether understand the imponderables which
cause one to think what he thinks, but surely one who
is trying as an honest man to live up to the sanctity of
his oath is well qualified to say whether he has an un—
biased mind in a certain matter.

Ultimately, petitioner’s contentions amount to this:
Since he is a Communist, an exception must be carved
out of the rule laid down in the statute, and construed
in Wood and Frazier, that there is no implied bias by
reason of Government employment. Thus the rule would
apply to anyone but a Communist tried for contempt
of a congressional committee, but not to a Communist.
We think the rule in Wood and Frazier should be uni-
formly applied. A holding of implied bias to disqualify
jurors because of their relationship with the Government
is no longer perm