403 F2d 340 United States v. Bryson

403 F.2d 340

UNITED STATES of America, Appellant,
v.
Hugh BRYSON, Appellee.

No. 22474.

United States Court of Appeals Ninth Circuit.

November 5, 1968.

Certiorari Granted February 24, 1969.

See 89 S.Ct. 879.

Cecil F. Poole (argued), U. S. Atty., Jerrold Ladar, Asst. U. S. Atty., San Francisco, Cal., J. Walter Yeagley, Asst. Atty. Gen., San Francisco, Cal., Kevin T. Maroney, George B. Searls, Dept. of Justice, Washington, D. C., for appellant.

Richard Gladstein (argued), of Gladstein, Andersen, Leonard & Sibbert, San Francisco, Cal., for appellee.

Before MERRILL, MADDEN* and HUFSTEDLER, Circuit Judges.

PER CURIAM:

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1

The Government appeals from an order of the District Court granting appellee's motion to vacate and set aside a judgment of conviction of violation of 18 U.S.C.A. § 1001, the general federal perjury statute. A jury found appellee, Bryson, guilty of filing an affidavit with the National Labor Relations Board falsely alleging that he was not affiliated with the Communist Party. Bryson filed the affidavit with the Board pursuant to former § 9(h) of the Labor Management Relations Act, 1947, 29 U.S.C.A. §§ 141 et seq., 159(h). Section 9(h) prevented a union from using services of the Board unless and until each of the union's officers had filed his affidavit that he was neither a member of nor affiliated with the Communist Party. During his trial Bryson attacked the constitutionality of § 9(h). The attack failed and his conviction was affirmed on appeal. Bryson v. United States, 9 Cir., 1956, 238 F.2d 657, rehearing denied, 1957, 243 F.2d 837, cert. denied, 1957, 355 U.S. 817, 78 S.Ct. 20, 2 L.Ed. 2d 34. The constitutionality of § 9(h) had been specifically upheld in American Communications Ass'n C. I. O. v. Douds, 1950, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925.

2

In obtaining the order from which this appeal is taken, Bryson successfully contended in the District Court that his conviction should be vacated because § 9(h) was unconstitutional. We hold that Bryson had no standing to attack the constitutionality of § 9(h). The holding is compelled by Dennis v. United States, 1966, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973, because there are no significant differences between Bryson and Dennis. Bryson's inability to reach the constitutional issue defeats his attack on the validity of the conviction and renders unnecessary our discussion of the remaining contentions of the parties.

3

The order is reversed.

Notes:

*

Senior Judge, United States Court of Claims