United States v. Carbone/Dissent Frankfurter
Mr. Justice FRANKFURTER dissenting, with whom, Mr. Chief Justice STONE and Mr. Justice BURTON concur.

Until 1907 no review could be had from a judgment of a district-or the predecessor, circuit-court setting aside an indictment. By the Criminal Appeals Act of that year, 34 Stat. 1246, 18 U.S.C. § 682, 18 U.S.C.A. § 682, this Court was given jurisdiction to review such a judgment, but only if the decision of the district court was based exclusively upon the invalidity or construction of the statute which gave rise to the indictment. If the district court construed an indictment as well as a statute, this Court could not entertain the appeal. United States v. Hastings, 296 U.S. 188, 56 S.Ct. 218, 80 L.Ed. 148. Accordingly, when the dismissal of an indictment involved an erroneous ruling in whole or in part upon the sufficiency of the indictment as a matter of pleading, the United States was without remedy. The upshot was that justice might be thwarted through a misconception by a district judge of the requirements of criminal pleading because time might bar a new indictment.

It was the purpose of the Act of May 9, 1942, 56 Stat. 271, 18 U.S.C., Supp. IV, § 682, 18 U.S.C.A. § 682, to meet this situation. This Act authorized the Government to appeal to a circuit court of appeals from the decision of a district court in those cases where direct appeals to this Court do not lie. It also required this Court to remand to a circuit court of appeals a case wrongly brought here. Accordingly, when the terms of the dismissal of an indictment by a district court raise doubts as to the ground on which the dismissal was made, or is a blend of a  inding of bad pleading and of a construction of the statute on which the indictment was based, this Court since the 1942 Act, is under duty not to affirm the district court but to remand the cause to the circuit court of appeals for that court's disposal of both issues-interpretation of the indictment and construction of the statute.

The Court applied this procedure in United States v. Swift & Co., 318 U.S. 442, 63 S.Ct. 684, 87 L.Ed. 889, although, or perhaps because, there was a division here as to the meaning of the District Court's action. This course, in my judgment, should now be followed. The scope of the opinion below is certainly not unequivocal. Did the District Court mean that the indictment charged that the defendants acted exclusively as authorized agents of the union in collecting fees, but converted those fees to their own purposes? That may well be embezzlement under the Massachusetts law; but no one would contend that it comes within the terms of the 'kick-back' statute. Or, did the District Court read the indictment to mean that that which the defendants did was outside the scope of their authority as union officials and was not done on behalf of the union, and hold that the 'kick-back' statute does not apply to persons because they are officers of a union? Or, did the District Court read the indictment to mean that the union officials acted on their own and not for union purposes, but hold that such conduct is not covered by the 'kick-back' statute because it applies exclusively to persons who work for the employer and who line their pockets by virtue of their power to assure or withhold employment? Instead of starting with an unequivocal construction of the indictment by the District Court, this Court is itself in effect construing the indictment when Congress has withhold from this Court the right to construe indictments.

In view of such doubts concerning the real meaning of what the District Court did, fair administration of the criminal law would seems to preclude affirmance of the judgment below on the assumption that the District Court read the indictment so as to bring into application a construction of the 'kick-back' statute for which the Government does not contend. I would dismiss the appeal and remand the District Court's judgment to the Circuit Court of Appeals for the First Circuit for that Court to review the judgment in view of the power of the Circuit Court of Appeals, not possessed by us, to construe the indictment as a preliminary to construing the statute.

But under the compulsion of the Court's decision the case is before us on the merits. See Helvering v. Davis, 301 U.S. 619, 640, 57 S.Ct. 904, 908, 81 L.Ed. 1307, 109 A.L.R. 1319. The statute seems to be clear: 'Whoever shall induce any person employed in the construction, * * * of any * * * work, * * * financed in whole or in part by loans or grants from the United States, * * * to give up any part of the compensation to which he is entitled under his contract of employment, by force, intimidation, threat of procuring dismissal from such employment, or by any other manner whatsoever, shall be fined * * * or imprisoned * * * or both' 48 Stat. 948, 40 U.S.C. § 276b, 40 U.S.C.A. § 276b. No legislative history is invoked to undo the scope of this language and to immunize what Congress has plainly condemned. What Congress has enacted should be enforced. The statutory phrase is 'by any other manner whatsoever.' The indictment does not describe a check-off or collection of union dues or initiation fees in a labor union. That, as the Government agrees, is not prohibited. The statute seeks to protect forays against wages derived from federal funds and does not touch diminution of such wages in connection with union membership. The statute is for the protection of the laboring man and the taxpayer. It should be so interpreted and enforced. It should not be interpreted so as to protect those described in the indictments as collecting funds by coercion, through t eir control over jobs, for their own personal advantage at the expense of the wage earner, the labor union, and the taxpayer. 

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