Before FRANK, MEDINA, HINCKS, Circuit Judges.
The indictment, which contains four counts, charges defendant with perjury in having testified falsely before a grand jury in the Southern District of New York, as follows:
(1) Q. Do you know Morton Sobell? A. Well, I do not, to the best of my recollection, although I realize he went through City College at the same time I did.
(2) Q. Do you know Helene Elitcher? A. No, I do not.
(3) Q. Do you know Julius Resenberg? A. No, I do not, to the best of my recollection.
(4) Q. You are positive that you don't know either Ann Sidorovich or Michael Sidorovich? A. Well, so far as my recollection can carry me, I am positive.
The jury found defendant guilty on counts one and three which concerned Sobell and Rosenberg, but acquitted him on the counts relating to Helene Elitcher and the Sidoroviches. From the judgment of conviction entered upon this verdict defendant appeals.
The indictment alleged that "it was material to said inquiry [before the Grand Jury] to ascertain whether or not the defendant knew or was associated with or had knowledge of the activities of Julius Rosenberg, Morton Sobell, Helene Elitcher, Ann Sidorovich and Michael Sidorovich, among others, in connection with an investigation of Soviet espionage."
The materiality of the questions was conceded by trial counsel for defendant, as well as the competency of the Grand Jury to conduct the inquiry, and the fact that the foreman of the Grand Jury administered the oath to defendant before he testified. But the sufficiency of the indictment to charge the crime of perjury is challenged on the ground that it fails to specify the law of the United States which authorized the oath to be administered, or the name or "qualification" of the person who administered the oath. Moreover, as the administration of such an oath is plainly provided for, 18 U.S.C.A. § 3771 and Rule of Criminal Procedure 6(c), 18 U.S.C.A., the statute authorizing the Supreme Court to promulgate this Rule is claimed to be unconstitutional, as in violation of the Sixth Amendment. It is not necessary to enter into any discussion of these technical points, as the case chiefly relied upon in defendant's brief, United States v. Debrow, 5 Cir., 1953, 203 F.2d 699, has since been reversed by the Supreme Court, 346 U.S. 374, 74 S. Ct. 113, 115, which based its rejection of similar unsubstantial contentions principally upon the ground that: "The Federal Rules of Criminal Procedure, 18 U.S.C.A., were designed to eliminate technicalities in criminal pleading and are to be construed to secure simplicity in procedure."
It is to be implied from the argument made on defendant's behalf that the contention is made that there is some inconsistency in the verdict which requires a reversal of the judgment. But there is nothing in this; the testimony relative to defendant's contact and association with Helene Elitcher and the Sidoroviches, while sufficient to comply with the two-witness rule applicable in perjury cases, was meager in bulk and circumstantial detail in comparison with that of the many witnesses who testified to the long series of occasions when defendant was with Sobell and Rosenberg and the substantial corroboration, to be found in some of the documents conceded to have been written by defendant and otherwise. There was ample basis for the conclusion of the jury that, while defendant's guilt with respect to his grand jury testimony relative to Sobell and Rosenberg was established to their satisfaction beyond a reasonable doubt, there was such a doubt as to his recollection of the others. And, even if there had been some inconsistency based upon a consideration of the evidence as a whole, this would not ordinarily justify a reversal. See Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356.
Nor is there any merit in the contentions that the evidence was not sufficient to support the verdict and that defendant was deprived of a fair trial because of the references to Communists and espionage.
By way of background to a review of the proofs it will be helpful to examine the substance of the defense on the merits and the charge of the trial judge. From the beginning of the trial until the end trial counsel for defendant took the position that the sole issue was whether the defendant, in view of his background and experience, "the kind of work he is doing" and his "mental state or condition" at the time, believed his answers to be true. Defendant was described by his trial counsel as a "sort of young Einstein who loves physics," and as in a distressed state of mind due to his interrogation by the FBI before he was subpoenaed to testify before the Grand Jury. Such also is the general purport of defendant's own testimony at the trial, which covered these subjects in great detail; and he described the interpretation he placed upon the questions when propounded to him before the Grand Jury. As trial counsel for defendant expressed it in his summation, defendant's mind is claimed to have worked in this fashion: "I want to do everything I can to help the Government. I want to disassociate myself from these people, Rosenberg and Sobell, Barr and Sarant, and the rest of the crew, just as far as I truthfully can - as far as I truthfully can. I don't want to go to the extent of committing perjury or lying about it, because that certainly would interfere with physics." Counsel for defendant further stated: "My instructions were to concede everything. He wanted to get everything before the jury."
Thus it was defendant's counsel who requested that the entire testimony given by defendant before the Grand Jury be received in evidence; it was he who requested the trial judge to explain to the jurors who Julius Rosenberg was; and it was he who brought out defendant's testimony that he was not and never has been a Communist, whilst pursuing the subject of Communism at considerable length in his cross-examination of one of the Government's witnesses relative to the ...