Full opinion text
STEPHENS, Circuit Judge. On the 25th day of May, 1949, a single indictment was returned by a United States Grand Jury charging Harry Renton Bridges, Henry Schmidt, and J. R. Robertson with the crime of conspiracy to fraudulently secure Bridges’ naturalization, Count I; 18 U.S.C.1946 ed. § 88, now 18 U.S.C. 1948 Rev. § 371; charging Bridges with the crime of knowingly making a false statement under oath relating to> his naturalization proceedings, Count II; 8 U.S.C.1946 ed. § 746(a) (1), now 18 U.S.C.1948 Rev. § 1015(a) ; charging Schmidt and Robertson each with the crime of fraudulently aiding and abetting an alien (Bridges) to procure naturalization, Count III; 8 U.S.C.1946 ed. § 746(a) (5), now 18 U.S.C.1948 Rev. § 1425. All of the charges contained in the indictment were submitted together to a jury which returned verdicts of guilty against each defendant as charged in each count; judgment and sentence followed; and each defendant appeals on numerous grounds as to each judgment. Count I Count I is laid under Title 18 U.S.C. 1946 ed. § 88, (now 18 U.S.C. 1948 Rev. § 371) in which Bridges, Schmidt and Robertson were charged with having conspired together to secure the naturalization of Bridges, an alien, by fraudulently representing that he had never belonged to the Communist Party of the United States. The applicable statute is as follows: § 88. “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more 'than $10,000, or imprisoned not more than two years, or both.” The texts of the Count, and the alleged overt acts, are set out in the margin. Count II Count II is laid under Section 346 of the Nationality Act of 1940, c. 876; 54 Stat. 1137, 1163, Title 8 U.S.C.1946 ed. § 746(a) (1), (now 18 U.S.C.1948 Rev. § 1015(a), in which Bridges, alone, is charged with having fraudulently made a false statement under oath in his naturalization proceedings in the Superior Court of California, as follows: Question by the Court to Mr. Bridges: “Do you now, or have you ever, belonged to the Communist Party of the United States?” Answer by Mr. Bridges: “I have not; I do not.” The applicable statute is as follows: 8 U.S.C.1946 ed. § 746(a). “It is hereby made a felony for any alien or other person, whether an applicant for naturalization or citizenship, or otherwise, and whether an employee of the Government of the United States or not— “(1) Knowingly to make a false statement under oath, either orally or in writing, in any case, proceeding, or matter relating to, or under, or by virtue of any law of the United States relating to naturalization or citizenship.” The text of the Count II is set out in the margin. Count III 'Count III is laid under Section 346 of the Nationality Act of 1940, c. 876, 54 Stat. 1137, 1163, Title 8 U.S.C.1946 ed. § 746(a) (5). In this Count Schmidt and Robertson are accused of knowingly encouraging, aiding, advising, and assisting Bridges to secure his naturalization through fraud. The applicable statute is as follows: 8 U.S.C.1946 ed. § 746(a). “It is hereby made a felony for any alien or other person, whether an applicant for naturalization or citizenship, or otherwise, and whether an employee of the Government of the United States or not' — ■ * * * * * * J “(5) To encourage, aid, advise, or assist any person not entitled thereto to obtain, accept, or receive any certificate of arrival, declaration of intention, certificate of naturalization, or certificate of citizenship, or other documentary evidence of naturalization or of citizenship— “a. Knowing the same to have been procured by fraud; * * The text of the Count is set out in the margin. The Statute of Limitations The acts which are the bases of the charges were performed within the period intervening between June 23 to October 1, 1945, and since the indictment was returned on May 25, 1949, the three year period provided by the general statute of limitations, within which prosecutions could legally be instituted, had expired and the judgments must be reversed and the indictment dismissed if the prosecution is limited to such period. The government thinks the prosecution is not so limited because the Congress, aware of the difficulty of prosecuting frauds committed against the government during wartime, enacted the so-called Wartime Suspension Act which provided that the three-year period would not begin to run until cessation of war hostilities had been officially proclaimed. Appellants are of the opinion that not one of the alleged offenses is a fraud against the government cognizable by the Suspension Act, and therefore institution of the prosecution for these offenses was not extended by it. The first count of the indictment is under the substantive offense of conspiracy, and the second and third counts are offenses defined in the statute commonly referred to as the Nationality Act of 1940. The government is of the opinion that the statute of limitations of five years provided in the Nationality Act of 1940 applies to Counts II and III independently of the general statute of limitations, and the Suspension Act, while appellants claim that it does not apply and that the general statute of limitations of three years is the applicable limitation, we shall go immediately to the consideration of the latter problem. The Saving Clause in the Repeal of Offenses Charged in Counts II and III On June 25, 1948, Title 18 of the United States Code, entitled “Crimes and Criminal Procedure” was enacted and became effective law as of September 1, 1948, Act of June 25, 1948, 62 Stat. 683. By the adoption of the code the criminal laws of the nation, so far as practical, were brought together in orderly manner through the method of simultaneous repeal and reenactment by Congress. By the new code the section of the Nationality Act of 1940, Title 8 U.S.C.A. § 746(a)(1), under which Count II of the indictment in suit was laid, was brought into the new code as § 1015(a) of Title 18, and in the same manner the section of the Nationality Act, Title 8 U.S. C.A. § 746(a)(5), under which Count III of the indictment in suit was laid, was brought into the new code as § 1425 of Title 18, with some change in phraseology not important in this case. However, the June 25, 1948, Act provided by § 21 thereof the following: “The sections or parts thereof of the Revised Statutes or Statutes at Large enumerated in the following schedule are hereby repealed. Any rights or Iv-abilities now existing under such sections or parts thereof shall not be affected by this repeal.” (Emphasis ours.] The sections of the laws under which Counts II and III were laid are enumerated in the schedule. It is clear, therefore, that the laws under which the charges in this case were laid continued effectively until the then existing rights or liabilities were extinguished by the running of a statute of limitations or otherwise. The Nationality Act contained a section which provided for a five-year limitation, Title 8 U.S.C.A. § 746(g), upon the institution of criminal proceedings for offenses defined therein. That section was included in the schedule of repealed sections but it was not carried over into the new code; instead an omnibus section of the new code included the limitation applicable to the offenses in suit. The section reads: “§ 3282. Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital unless the indictment is found or the information is instituted within three years next after such offense shall have been committed.” Title 18 U.S.C.A. § 3282, Act of June 25, 1948, c. 645, 62 Stat. 828. It is apparent that if the five-year limitation in the old Nationality Act, Title 8 U.S.C.A. § 746(g), remained effective through the provision in the repealing and reenacting Act, both Counts II and III were laid in time under it. It remained effective if the reservation of “rights or liabilities” preserved the limitation, as well as the substantive offenses then existing, as to offenses which had been committed prior to the effective date of the new code. The trial court held that the limitation was preserved and the government supports the holding. Keeping in mind the remedial purpose of the revisors, and Congress, we think the Saving Clause cannot be given the brog.d effect claimed for it by the government. What was done, as we have said, was the transfer of laws relating to crime into one code of laws. The offenses charged in Counts II and III were so transferred and in order that no doubt should arise as to their effective continuity from their original setting to the new one the Saving Clause was added. The revisors saw no reason for the period of five years for instituting prosecution for violation of the offenses defined in the Nationality Act and shorter periods for certain other offenses. Therefore, they did not move the five-year limitation section into the new code and did not continue it as law, as they did the sections defining the offenses under which Counts II and III were laid. Instead, they fixed the limitation period at three years through the operation of the omnibus section. Of course, statutes of limitations are at all times subject to change, though change never revives a right against which a limitation has entirely run. The legislation was skillfully drawn to prevent the nullification of prosecutions already begun by providing for continuity of the offenses through the revision and to prevent an effective amnesty as to violations more than three and less than five years old by postponing the effective date long enough for the government to act under the old five-year limitation. We hold that the statute of limitations of five years for violations of offenses under the Nationality Act yielded to the three-year provision as of the effective date of the revision. Appellants suggest in their brief that the revision, including the Saving Clause, was intended to apply only to prosecutions already instituted. The tenor of what we have already written shows that we disagree and the reasons for disagreement. Consistent with the purpose of the revision the revisors moved the wartime Suspension Act, old Title 18 U.S.C. § 590(a), into the new code as § 3287 of Title 18 U. S.C.A. We turn to the consideration of that statute and to whether it effected the suspension of the running of the three-year statute of limitations. The Applicability of the Wartime Suspension Act The Wartime Suspension Act, 62 Stat. 828, is cast in three numbered classes. The government views class (1), which suspends the running of the general limitation statute until proclamation of cessation of hostilities as to offenses “involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not * * * ”, as covering frauds to obtain rights and privileges from the government or which obstruct the government or its agencies in the due execution of law. And pecuniary loss to the government is not a necessary element. Classes (2) and (3) apply to frauds against the government or a government agency in specific instances which involve pecuniary loss to the government. Appellants, opposing the government’s view, seek to apply the rule of ejusdem generis to the Act and argue that since classes (2) and (3) refer to frauds of the same nature, class (1) is limited to frauds of the same nature. We pass this contention by quoting from United States v. Gilliland, 1941, 312 U.S. 86, 93, 61 S.Ct. 518, 522, 85 L.Ed. 598: “ ‘The rule of "ejusdem generis” is applied as an aid in ascertaining the intention of the Legislature, not to subvert it when ascertained.’ ” Appellants also argue that the legislative history supports the view that only pecuniary frauds were contemplated by the Congress. We think the government’s view of the Act is supported by the face of the Act and that no ambiguity is present which requires reference to the legislative history. However, we think the history, some of which we set out in the margin, does not support appellant’s view. We shall proceed to look at the case authorities. But before doing so, it is well to have in mind that not every fraud against the government, whether inherently pecuniary or otherwise, comes within the effect of the Suspension Act. There are offenses for which specific statutes of limitation apply and there are offenses which encompass acts inherently fraudulent as to the government but in which the fraud is not an ingredient and need not be proved. The Suspension Act does not apply in such circumstances if the decisions relative to the provisos considered in Noveck, McElvain and Scharton, hereinafter cited, are to rule. See our note 15a. The Case Authorities United States v. Gottfried, 2 Cir., 1948, 165 F.2d 360: Gottfried and others were involved in frauds to obtain more sugar than their legal ration. Gottfried and his corporation were indicted for making a fraudulent statement, and Gottfried and two others were indicted for conspiracy to defraud the government. The specific fraud alleged was that the government should be deprived of the services of one of its enforcement officers in order to accomplish the illegal purpose. No mention was made as to any pecuniary loss of the government. The court said in part, 165 F.2d at page 368: “The argument [by appellants]— drawn from the Congressional debates —is that this language should be confined to frauds of those who contracted with the United States or supplied it with materials, and that it does not include interference even though fraudulent which results in no pecuniary loss. Textually this reasoning has nothing to commend it, except so far as the word, ‘fraud,’ may imply pecuniary loss; and, whatever might be said as a new matter for so circumscribing, that word, it has been the law, at least since 1910, that in the statute [§ 80, Title 18 U.S.C.A.] under which this indictment was drawn, ‘fraud’ includes any conduct, ‘calculated to obstruct or impair its’ (the United States’) ‘efficiency and destroy the value of its operations and reports.’ [Haas v. Henkel, 1910, 216 U.S. 462, 479, 30 S.Ct. 249, 54 L.Ed. 569], We see no reason for reading the words, ‘defrauding the United States’ in the statute of limitations now in question less comprehensively; certainly there was not enough ground for that in the debates of Congress. Besides, the purpose of the amendment was not to let crimes pass unpunished which had been committed in the hurly-burly of war, an overriding motive which perfectly fits the situation at bar.” We are in accord with these expressions. Following World War I there was in effect a proviso to the statute of limitations which was to some extent the prototype of the Wartime Suspension Act. It is therefore useful to approach' the scope of the present Act through -decisions made under the former Act. United States v. Noveck, 1926, 271 U.S. 201, 46 S.Ct. 476, 70 L.Ed. 904: In this case the government was contending that the acts of defendant, the basis of the charge of perjury against him, were inherently fraudulent and therefore a proviso suspending the statute of limitations was applicable. But the court held otherwise, giving the reason for its holding that fraud is not an ingredient of perjury, that perjury can be proved without proof of fraud, and that the proviso to the statute of limitations applies only to those cases in which fraud is an ingredient. The court went on to say that otherwise the same period of limitation would not apply to all offenses of perjury. Those in which the government was defrauded would be under the proviso and all others would be under the general statute of limitations. As we have already seen, the basic reason for the decision in United States v. Noveck, supra, was that the proviso to the statute of limitations then in effect-applied only to crimes in which fraud against the government or any agency thereof is an ingredient and is a necessary element of proof. That is, since the crime in Noveck was perjury, a crime which may be proved independently of or in the absence of fraud against the government, fraud against the government is an immaterial incident. United States v. McElvain, 1926, 272 U.S. 633, 47 S.Ct. 219, 71 L.Ed. 451: The. indictment was laid under Criminal Code § 37, 35 Stat. 1088-1096, and the charge was conspiracy to defraud the United! States in respect of its- income tax. The-general statute of limitations, § 1044, for criminal offenses was three years and under a proviso to it the period within which: the indictment could be returned as to certain offenses was six years. The government claimed that the proviso was applicable to the charge laid, but the defense thought not. The trial court and the Supreme Court held that the general statute-of limitations without the proviso was applicable. For clarity, we shall refer to the section, minus the proviso, as the-“main part”. Section 1044, complete .with: proviso, is quoted in note 12. The opinion of the Supreme Court in United States v. McElvain, supra, is not easy reading and has had various constructions. Without very careful study it mistakenly appears that an inconsistency or miscitation of statutory section has crept into it. The court, it will be observed,, says 272 U.S. at page 639, 47 S.Ct. at page.-220, 71 L.Ed. 451: “The crime of conspiracy to commit an offense is distinct from the offense itself”, meaning .of course that conspiracy is one-crime and the performance of the illegal! acts planned or “involved” in the conspiracy constitutes another distinct or, according to the court, “substantive” crime. The proviso cannot relate to any offense not within the terms of the main part of the statute because the proviso is an excepting clause to the rule or law laid down in the main part. Without the proviso, the main part of the statute by its terms covers every offense except capital offenses and offenses arising from the revenue laws. The excepting clause (the proviso) takes all offenses, covered by the main part which “involve” fraud against the United States or its agencies, out of the three-year limitation and fixes instead thereof a six-year limitation. The case is dealing with an offense of conspiracy but, says the court, 272 U.S. at page 639, 47 S.Ct. at page 220, 71 L.Ed. 451: “The language of the proviso cannot reasonably be read to include all conspiracies defined by section 37 [because the proviso contains the words ‘whether by conspiracy or not’ which establishes that it is the substantive offense or the object of the conspiracy which determines the scope of the proviso]. * * * [0]bviously it [the proviso] would be limited to those [conspiracies] to commit the substantive offenses which it [the main part] covers” or, in the language of the proviso, which it “involves”. The substantive offense to the conspiracy charged in the McElvain case is not covered or involved in the main part but by specific language it is excluded therefrom. But no “distinct” offense of conspiracy is excluded from coverage of the main part. It follows that the offense charged is within the terms of the main part and not within the excepting part — the proviso. All the rest of the opinion is intended to explain the reasonableness of the decision and the evident intent of Congress but, unfortunately, rather acts to confuse. See note . Under the doctrine of the McElvain case it is clear that since Count I of our case concerns conspiracy, the substantive offense of which is not excluded from the main part of the applicable statute of limitations, the proviso would apply. The decision and opinion in United States v. McElvain, supra, is not authority for excluding our Count I from the Suspension Act. United States v. Scharton, 1932, 285 U.S. 518, 52 S.Ct. 416, 76 L.Ed. 917: The statute of limitations with which Scharton was concerned was § 1110(a) of the Revenue Act of 1926, 26 U.S.C.A. § 3748(a), applying specifically to offenses under the revenue laws. Differing from McElvain, the indictment was not for conspiracy, but for violating a “substantive” revenue law and was within the main part of the applicable statute of limitations. There was a proviso to the applicable statute of limitations, § 1110(a), similar to the proviso in McElvain, hence, under the McElvain reasoning the offense was not taken out of the main part. But the proviso was held not to apply because of the principle announced in United States v. Noveck, supra, that fraud against the United States or any agency thereof was not an ingredient of the offense charged. The court sought to find the intent of Congress and in doing so called attention to the fact that the proviso was an excepting clause and therefore was to be strictly construed. The section under which the charge is made, § 1114(b), makes an attempt to evade any tax under the Revenue Act of 1926, an offense without the mention of fraud. “There are, however, numerous statutes expressly making intent to defraud an element of a specified offense against the revenue laws.” United States v. Scharton, supra, 285 U.S. at page 521, 52 S.Ct. at page 417, 76 L.Ed. 917. Hence, under the Noveck doctrine, the proviso applies only to offenses which encompass fraud as an ingredient. . The statute under which our Count II is laid, 8 U.S.C. § 746(a) (1), has no specific mention of fraud and it can be argued from this fact that the Suspension Act would- not be applicable thereto. However, we think the Suspension Act does apply for the reason we shall now set forth. The charge in Scharton was that the accused had made attempts to evade income taxes and the statutory offense, § 1114(b), Revenue Act of 1926, made attempts to wilfully evade or defeat the tax, a felony. There is no specific mention of fraud in the statute defining the offense charged, and the proviso as we have seen is made applicable only to “offenses involving the defrauding or attempting to defraud the United States or any agency thereof”, et cetera. If the cited case must be construed to mean that “fraud” must be spelled out literally in the statute, then logically we must hold that the Suspension Act does not apply to Count II, for although fraud is spefically charged in the indictment, fraud is not specifically mentioned in the statute defining the offense under which the charge is laid. We think we are not driven to this extreme conclusion. Noveck, McElvain, and Scharton do not foreclose the holding that where the very terms of a statutory offense require proof which necessarily involves fraud or attempted fraud against the United States or an agency thereof, and there is no special Act inconsistent therewith such as is found in McElvain and Scharton, the Suspension Act applies. After all, the Congress was enacting the Suspension Act to preserve the government’s right to prosecute those who had tried, successfully or not, to defraud it during the war. It does not seem to be in harmony with Congressional intent nor does it seem otherwise necessary to construe the Noveck doctrine so strictly that it excepts the extension or suspension of statute of limitations from applying to acts which come directly under the offense and which cannot be committed without thereby committing fraud against the United States or an agency thereof. In the circumstances prosecutions under the same statutory offense could not be limited in one case to a certain period and to another period in another case — a strong point in Noveck. Both McElvain and Scharton were controlled by special statutes covering the revenue laws. The trial court held to the view we have suggested and the government adheres to it. We think it is supported by reason and therefore we are not constrained to broaden the Scharton holding to include the instant case. All we have said on this point is but a round-about way of saying that fraud is an ingredient of the offense charged. Such in effect was the holding in Knauer v. United States, 1946, 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500. Hence, we hold that the Suspension Act applies to Count II of the indictment. We have already shown that the Saving Clause applies. Since our Count III does specifically include fraud as an ingredient of the offense charged, it seems obvious that the Suspension Act applies and, for the reasons already given, the Saving Clause applies. Marzani v. United States, 1948, 83 U.S. App.D.C. 78, 168 F.2d 133: Appellant Marzani was indicted in 1947, tried, convicted, and sentenced for having made false and fraudulent statements in a matter within the jurisdiction of an agency of the United' States government in violation of § 80 of Title 18 U.S.C.A. The False Claims Act. Factually, he was charged with having given false answers to questions as to whether he had ever been a member of the Communist Party, ever attended their meetings, etc. The general three-year statute of limitations had run before the indictment was returned and it would have to be dismissed unless the Suspension Act, hereinbefore considered, was effective. The court, after discussing Noveck, McElvain, Scharton, and Gilliland, supra, concluded that the Suspension Act did not apply to the False Claims Act. It gave as its reasons that the False Claims Act did not involve pecuniary frauds, whereas the Suspension Act applied only to offenses which involved pecuniary frauds against the government. We cannot agree with the reasoning in the Marzani opinion, nor consequently with the conelusions reached. And the conclusions reached were based upon the court’s own conclusions that the Noveck, McElvain and Scharton cases hold that the Suspension Act then in force did not apply to non-pe•cuniary fraud; hence the present Suspension Act does not. We have analyzed the cases referred to and we think the court’s conclusions in Marzani on this point are not justified. It is true that Gilliland held that the False Claims Act was not restricted to matters in which the government was defrauded in a pecuniary or financial sense. But, while •each of the three cases — Noveck, McElvain, and Scharton — was a case involving pecuniary loss, none of these cases held that the proviso could be invoked only when the government had been defrauded in a pecuniary manner. The Suspension Act applies to every offense “involving fraud or attempted fraud against the United States”. The word fraud as defined by the Supreme Court in Haas v. Henkel, 1910, 216 U.S. 462, 479, 30 S.Ct. 249, 254, 54 L.Ed. 569, means the “impairing, obstructing, or defeating [of] the lawful function of any department of government”. Gilliland reaffirmed Haas v. Henkel by holding that since Congress had removed the words “cheating and swindling” from the False Claims Act, Congress had in effect declared that a fraud need not be pecuniary in nature in •order to be covered by the False Claims Act. We therefore conclude that the Suspension Act applies to every offense involving fraud against the government whether pecuniary or not. Appellants argue that since the Suspension Act applies to fraud “in any manner”, whereas the conspiracy statute applies to fraud “in any manner or for any purpose”, the two Acts refer to different types of frauds. In their argument they concede that the definition of fraud in the conspiracy statute applies both to pecuniary frauds and to frauds which obstruct the government in its lawful functions. However, they urge that the absence of the words “or for any purpose” in the reference to fraud in the Suspension Act confines the scope of that Act to pecuniary frauds. They rely upon the Cohn case (see our footnote 15, supra) for the conclusion reached. The Cohn case held that the term “fraud” in the False Claims Act, before its 1934 amendment, applied only to pecuniary frauds. However, a careful reading of the Cohn case, and the Gilliland case, shows that fraud in the Cohn case included those of a pecuniary nature only because it (fraud) was coupled with the words “cheating and swindling”. And that once the words “cheating and swindling” were deleted, the word fraud, standing alone and without any help from the phrase “for any purpose”, was held to extend to all frauds whether pecuniary or not. United States v. Gilliland, 1941, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598. See note . We conclude as follows: Since fraud against the United States or any agency thereof was an ingredient of each one of the offenses charged and such fraud was not required to be a pecuniary nature, the Wartime Suspension Act applies and the statute of limitations had not entirely run against any count of the indictment when it was returned. Res Judicata The Executive Department of the government has long been concerned with Mr. Bridges. And we take note of that concern solely because it is claimed by the appellants that the actions taken against Bridges effect a legal bar to the instant prosecutions. Because of this important legal point, we turn to the prior proceedings against Bridges. It is contended by appellants that, prior to the return of the indictment, it had been adjudicated that Bridges was not, at the time of his naturalization and that he never had been, a member of the Communist Party; and that it is a denial of due process of law under the Fifth Amendment to refuse to apply the doctrine of res judicata to this case. We think it sufficient to quote briefly from the Supreme Court opinion in Southern Pacific R. Co. v. United States, 1897, 168 U.S. 1, at page 48, 18 S.Ct., 18, 42 L.Ed. 355: “ * * * a right, question, or fact distinctly put in issue, and directly determined'by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and, even if the second suit is for a different cause of action, the right, question, or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.” [Emphasis ours.] In 1938, the Secretary of Labor, then in charge of Immigration and related subjects, issued a warrant for the arrest and deportation of Bridges, an alien, charging that at the time he entered the United States he was a member of or affiliated with a defined class of aliens who advocated overthrow of the government by force and violence. Title 8 U.S.C.A. § 137(c) and (g). Dean James N. Landis, acting as an official of the executive department of the government but not as an arm of the judicial department, heard the evidence and held that it established neither membership- nor affiliation with the deportable class. The Secretary of Labor approved Dean Landis’ report and dismissed the warrant. We hold that the proceedings do not act as an estoppel to, nor res judicata of, the prosecutions in the present action, primarily because the cases which apply the rule of the Southern Pacific case, supra, do not extend the doctrine of estoppel by judgment beyond the findings of “a court of competent jurisdiction”. Furthermore, the Supreme Court has specifically said that since an 'administrative board is an instrument of the executive power and not a court, the doctrine of res judicata cannot be applied to its decisions. Pearson v. Williams, 1906, 202 U.S. 281, 26 S.Ct. 608, 50 L.Ed. 1029. An administrative decision does not preclude a subsequent administrative consideration of the identical matter, Mock Kee Song v. Cahill, 9 Cir., 1938, 94 F.2d 975; Flynn ex rel. Ham Loy Wong v. Ward, 1 Cir., 1938, 95 F.2d 742; therefore a decision of an executive agency cannot act as a bar to subsequent judicial proceedings. Bridges v. Wixon Bridges also cites his 1940 deportation hearing and the related Supreme Court decision in Bridges v. Wixon, 1945, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103, as establishing that he was not a Communist at any time up to 1940, and that this issue in our case is res judicata. Of course, the issue in none of the former hearings was as to Bridges’ being a Communist. Under the Smith Act and under the applicable law in Schneiderman v. United States, 1943, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796, an allegation that a person was a Communist was not per se an allegation of a crime, while the allegation that one conspired to destroy the government by force or violence stated a crime. As for the administrative hearing, it would not be res judicata for the same reasons as assigned to the 1938 hearing before Dean Landis. Moreover, it would not appear that Bridges would want us to rely on the findings of Judge Sears (sitting as a hearing officer of the executive department) in the second administrative hearing, which were to the effect that Bridges had been both affiliated with and a member of the Communist Party, an organization which advocated the overthrow by force or violence of the government of the United States. Although Judge Sears’ findings were reversed by the Board of Immigration Appeals, they were reinstated by the Attorney General. Regulations of the Immigration and Naturalization Service, 8 C. F.R. (1940 Supp.) §§ 90.3 and 90.12. However, the 1940 hearing and resulting arrest for deportation led to a decision of the Supreme Court in the case of Bridges v. Wixon, supra. But even though we assume that Bridges and the United States were parties to both the Wixon case and the present case, the doctrine of res judicata is not applicable unless the two cases have a common question or fact which has been “distinctly put in issue and directly determined”. Southern Pacific Co. v. United States, supra. The issue of whether or not Bridges was a Communist, and therefore made a false statement when he denied such party membership, is thus reduced to a determination of whether or not Bridges v. Wixon, supra, actually held that Bridges had never been a Communist. Comparison of Bridges v. Wixon and the Instant Case In Bridges v. Wixon, supra, Bridges sued for a writ of habeas corpus to compel the Immigration Director to release him from custody. In the instant case Bridges is under indictment for conspiracy to defraud the United States by defeating the administration of its naturalization laws and for making false statements under oath in a naturalization proceeding. The causes of action in the two cases are different. Therefore, the second cause of action is not barred by the judgment in the first. However, under the definition of res judicata given in the Southern Pacific case, certain facts, having once been determined' in a final judgment, cannot be relitigated in any subsequent action between the same parties. After careful study of the Supreme Court’s opinion, we have reached the conclusion that Bridges v. Wixon, supra, did not decide that Bridges had never been a Communist. The Supreme Court stated in the majority opinion, 326 U.S. at page 149, 65 S.Ct. 1443, 89 L.Ed. 2103, that the administrative agency gave too loose a meaning to the term “affiliation” as proscribed by Title 8 U.S.C.A. § 137(c), and (e), and had also improperly received evidence of Bridges’ membership in the Communist Party in the form of an unsigned statement purportedly made by one O’Neil who denied making the statement. The Supreme Court, therefore, concluded that the administrative decision approving an executive order to deport Bridges could not be sustained since it was not suported by substantial evidence. The matter in court was habeas corpus, and the Communist issue was not in the case. The holding of the Supreme Court was as follows, 326 U.S. at page 156, 65 S. Ct. at page 1453, 89 L.Ed. 2103: “Since Harry Bridges has been ordered deported on a misconstruction of the term ‘affiliation’ as used in the statute and by reason of an unfair hearing on the question of his membership in the Communist party, his detention under the warrant is unlawful.” In other words, while the administrative decision to the effect that Bridges was a Communist and deportable, was overturned, there was no judicial determination that Bridges was not affiliated with nor .a member of the Communist Party. Bridges v. Wixon, supra, goes no farther than to declare what was the proper administrative procedure to be followed. It did not reach, and there was no need for the decision in that case to reach, the question of whether or not Bridges actually was a Communist. Therefore, we conclude that Bridges v. Wixon, supra, is not res judicata to the case here on appeal. The Bridges v. Wixon Opinion By the Supreme Court as Evidence The Supreme Court opinion in Bridges v. Wixon, supra, was offered in evidence by appellants Schmidt and Robertson to show that they, having read the opinion, relied in part thereon in reaching the conclusion that Bridges was not a Communist. However, the opinion was excluded as immaterial and incompetent. Since it was not negatived in that case that Bridges was a Communist, the trial court did not err in excluding it from evidence offered on behalf of Schmidt and Robertson to show their state of mind. The case was of no probative value on the point of Schmidt’s and Robertson’s knowledge or lack thereof regarding Bridges’ membership in the Communist Party, and because of the nature of the issue involved in the case and- the narrow scope of the decision, its introduction into evidence could not have been explanatory of Schmidt’s and Robertson’s beliefs, but could only have served to confuse and mislead the jury. The trial judge’s decision to exclude Bridges v. Wixon from evidence was well within the limits of due exercise of his discretion. Double Jeopardy The next point raised by Bridges on this appeal is the issue of double jeopardy. The Fifth Amendment of the United States Constitution states that no person shall be “* * * subj ect for the same offence to be twice put in jeopardy of life or limb * * It is in effect Bridges’ contention that the two attempts which were made in the past to deport him as an undesirable alien in reality placed him in jeopardy of “life or limb”, and consequently he is shielded by the Constitution from the present conviction for conspiracy to defraud the United States. Bridges has not been subjected to double jeopardy. At no time during the deportation proceedings was Bridges subjected tó peril of life or limb. He was detained solely for the purpose of deportation, not for punishment. Furthermore, the identity of “offenses”, necessary for the invocation of the protection against double jeopardy, is lacking since conspiracy and the defrauding of the United States by making false statements to procure naturalization for one not entitled thereto, are distinct crimes which have no relevance to the deportation hearings. Cf. United States v. Williams, 1951, 341 U.S. 58, 62, 71 S.Ct. 595, 95 L.Ed. 747. For, as the Supreme Court said in Bugajewitz v. Adams, 1913, 228 U.S. 585, 591, 33 S.Ct. 607, 609, 57 L.Ed. 978, “The determination [by an administrative body that an alien should be deported] by facts that might constitute a crime under local law is not a conviction of crime, nor is the deportation a punishment; * * See also Helvering v. Mitchell, 1938, 303 U.S. 391, 398, and footnote at page 399, 58 S.Ct. 630, 82 L.Ed. 917; Ex parte Bridges, D.C.1943, 49 F.Supp. 292, reversed in Bridges v. Wixon, supra, on other grounds; United States v. Bridges, D.C.1949, 86 F.Supp. 922, 928. Of course, habeas corpus is not a criminal proceeding and a hearing for the writ or a decision upon such hearing cannot put a person in jeopardy. All that can come from a proceeding in habeas corpus of the type used in Bridges v. Wixon, is a determination upon the issue of the detention of a person. Due Process Bridges’ contention that he has been denied due process of law by virtue alone of the several deportation proceedings and the present criminal indictment and conviction, is without merit. Whatever may be said as to the institution of the several proceedings, Mr. Bridges has been accorded every constitutional right in the instant case. The circumstance that phases of the former hearings and of this case are to some extent interrelated, afford no ground for the claim that due process had not been accorded each and every of the defendants-appellants. Materiality There was, at the time in suit, no statutory bar to any alien’s naturalization on account of membership in the Communist Party, and possessing such membership was not a crime. There was, however, a bar against naturalization of one who adhered to the belief that this government should be changed by force or violence, and such adherence was -a legal ground for deportation. False denials of such membership at a naturalization proceedings were material. The Russian brand of Communism and works of Karl Marx and Lenin were well known and their teachings of the doctrine of overturning our government by force and violence was common knowledge. Had Bridges answered the court’s question in the affirmative, the next line of questions which logically would have followed would have been as to whether Bridges believed in the violent overthrow of the government. From the answers received, the court would determine whether the applicant was devoted to the United States Constitution, and whether as a matter of fact and law Bridges qualified as a person entitled to citizenship. The case of Schneiderman v. United States, 1943, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796, is not in point. The Third Count: Aid and Abet Schmidt and Robertson present the theory that the third count of the indictment does not state an offense because there is nothing in the indictment which indicates that Bridges was not entitled to citizenship. The intent of the argument is that even if Schmidt and Robertson did aid and abet Bridges in his naturalization proceedings, the only fact alleged as disqualifying Bridges was that he was a member of the Communist Party, and that such membership was no offense, citing Schneiderman, supra. Hence, that there could have been no fraud. The fallacy in this theory lies very close to the surface. It is true that as of the time in suit, membership in the Communist Party or being a Communist was not a crime. It was, however, a crime to commit a fraud against the United States or any agency thereof. Aiding and abetting an alien toward securing the great privilege of citizenship through misrepresentation of a fact, which could well be the basis of a refusal to grant it, is well within the terms of the indictment. It is idle nonsense to argue that adherence to a plan of government as contradictory and inconsistent as Communism is to our plan of government would be an improper or inconsequential subject of inquiry in connection with a Naturalization proceeding. Father Meinecke Father Meinecke was called as a defense character witness to testify regarding Bridges’ reputation for truth, honesty, and integrity. The court took part in the examination of the witness, and the defendant contends that the nature of the questions asked by the court were so phrased as to discredit the testimony of the witnesses before the jury. While the questions of the court might be subj ect to misunderstanding, that danger was cured by subsequent instructions to the jury. Furthermore, as the Supreme Court said in Glasser v. United States, 1942, 315 U.S. 60, 83, 62 S.Ct. 457, 470, 86 L.Ed. 680. “Perhaps the court did not attain at all times that thorough-going impartiality which is the ideal [we intimate nothing of the kind here], but our examination of the record as a whole leads to the conclusion that the substantial rights of the petitioners were not affected. The trial was long and the incidents relied on by petitioners few. We must guard against the magnification on appeal of instances which were of little importance in their setting.” In any event, whether or not the court’s conduct in regard to Father Meinecke constituted error, it was not so prejudicial as to warrant reversal. For Father Meinecke, in order to be a valid character witness, must testify as to the defendant’s reputation in the community. Father Meinecke testified only as to his personal opinion, which is generally inadmissible. Wigmore on Evidence, 3rd ed., § 1980. And in addition to Father Meinecke, there were eleven other character witnesses who testified in Bridges’ behalf. Limit on Scope of Cross-Examination In the course of the trial the government put Lawrence R. Kessler, an agent of the Bureau of Naturalization, on the witness stand for the purpose of identifying a hotel registration card which the government wished to have placed in evidence. The evidentiary value of the card was to show that Lewis Michener, Jr., another government witness, was in San Francisco in August, 1940, to attend a Communist Party meeting at which, he testified, Bridges was also present. On direct examination Kessler’s testimony was confined to identifying the exhibit. Counsel for defendant Bridges sought to attack Kessler’s credibility on cross-examination on the ground that the only purpose of Kessler’s testimony was to bolster Michener’s testimony. The court limited the scope of the cross-examination to matters pertaining to the card and precluded impeachment as it is within the discretion of the trial court to do. Glasser v. United States, 1942, 315 U.S. 60, 83, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Fotopulos, 9 Cir., 1950, 180 F.2d 631, 640; Chevillard v. United States, 9 Cir., 1946, 155 F.2d 929, 935; United States v. Toner, 3 Cir., 1949, 173 F.2d 140, 144. Counsel for defendant challenged the court’s right to limit the scope of the cross-examination in this instance. The court in reply read from a prepared memorandum on the point of law. And while reading the memorandum in the presence of the jury, the court quoted from Morton v. United States, 7 Cir., 1932, 60 F.2d 696, 699, as follows [at page 3609 of the Record on Appeal]: “The battle continued, not to ascertain the truth, but in the evident hope that error might be injected into the record and ultimate conviction thereby avoided. But avoidance of a conviction, upon uncontradicted evidence establishing to a certainty the guilt of the accused, * * The court prefaced its reading of the above passage from the Morton case with the statement addressed to defendant’s counsel that “* * * the language used in this Morton case is somewhat reminiscent of your expectation or hope that some error might be created in the record.” Defendant labels the above quoted language of the trial court as such flagrant prejudicial misconduct as to constitute reversible error. However, the court ordered the statements stricken from the record and in addition instructed the jury as follows: “During the course of the trial, the Court has been called upon to make comments in ruling upon objections of counsel and motions made by them. It has also occurred during the trial that the court has been called upon to admonish and reprimand counsel in connection with the conduct of the trial of this icase. The jury shall not draw any inference from any such remarks or comments or rulings of the court that the court was intending to convey to the jury in any manner whatever its view or opinion as to what the verdict or decision of the jury should be. Such comments as the court may have made in that regard were only pursuant to the power and, indeed, the duty of the court to supervise the trial of the case and to expedite it.” It appears that the court recognized that the reading was in poor discretion and sufficiently admonished the jury to disregard it. The jury system would be faulty indeed if it must be held that jurors are so easily misled. There are few cases of long and tedious sessions with contentious counsel in which the judge has acted in true idealism. Moreover, since the criticism of counsel in connection with a technical point of evidence does not reflect upon the parties, the court’s statement was not prejudicial to the defendants. Goldstein v. United States, 8 Cir., 1933, 63 F.2d 609, 612-614; Mansfield v. United States, 8 Cir., 1935, 76 F.2d 224, 231-233, certiorari denied 296 U.S. 601, 56 S.Ct. 117, 80 L.Ed. 425. We see no reversible error here. Instructions to the Jury 1. “Reasonable Doubt” Appellants contend that certain of the instructions to the jury were plain error and seek a reversal of their conviction for that reason. The first of these concerns the court’s definition of “reasonable doubt” as follows: “The term reasonable doubt means a doubt for which a good reason can be given, in the light of all the evidence.” [Page 7885, Record on Appeal] Appellants maintain that the instruction as quoted puts on them the burden of establishing a doubt. Appellants’ analysis of the effect of the instruction is incorrect, especially when considered in connection with the succeeding part of the instruction: “It means a doubt which is substantial and not merely shadowy. It does not mean a doubt which is merely capricious or speculative. Neither does it mean a doubt born of reluctance on the part of a juror to perform an unpleasant duty, or a doubt arising out of sympathy for a defendant or out of anything other than a candid consideration of all the evidence presented.” Instructions may not be taken apart and a phrase here and a clause or even a sentence or paragraph there used to find error. The criticized portion of the instruction, when read in its context, plainly informs the jury that “reasonable doubt” means no more or less than the plain meaning of those two words as used. Furthermore, while this instruction on reasonable doubt is not to be commended, it does not constitute reversible error. 2. Credibility of Witnesses Appellants charge error as to the instructions on credibility of witnesses. One part objected to is as follows: “If the witness has the appearance of attempting to the best of his ability to tell the truth, and other circumstances tend to establish that situation, then you give full credit to his testimony.” The court continued, and this portion of the instruction is not objected to: “But if you are impressed that the witness is attempting to hide' something or is not telling the whole truth, then you have the right to give only such consideration to his testimony as you may think it entitled to receive.” This instruction is not unfavorable to appellants. It merely acts as emphasis to the obvious principle that because a witness testifies to a fact, a juror does not have to believe it. He should determine according to his best judgment in the circumstances. Objection is also made to the further instruction on credibility to the effect that the jury should consider the interest which a witness, particularly the defendant, might have in the outcome of the trial. Such an instruction was neither improper nor prejudicial. Reagan v. United States, 1895, 157 U.S. 301, 311, 15 S.Ct. 610, 39 L.Ed. 709; Fredrick v. United States, 9 Cir., 1947, 163 F.2d 536, 550, certiorari denied 332 U.S. 775, 68 S.Ct. 87, 92 L.Ed. 360. Moreover, there was no objection to the credibility instruction as required by Rule 30, Federal Rules of Criminal Procedure, 18 U.S.C.A. 3. Discrepancies and Inconsistencies in Testimony. Appellants claim error in the instruction on discrepancies or inconsistencies in the testimony of witnesses. In effect, the jury was told not to be misled by discrepancies of a minor nature or discrepancies in the testimony immaterial to the issue of the guilt or innocence of the defendants. The trial was long in time and hard fought throughout and much testimony in great detail was introduced. The instruction was intended to advise the jury, in their deliberations, not to leave the ultimate question of guilt or innocence for questions which, when resolved, would be of no help in their main problem. The instruction was not erroneous. 4. Conspiracy Two instructions on conspiracy are assigned as error. The first instruction is to the effect that conspiracies need not be proved by direct evidence, and it was both necessary in order that the jury not be misled and well established at law. Nye & Nissen v. United States, 9 Cir., 1948, 168 F.2d 846, 852, affirmed 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919; Blumenthal v. United States, 9 Cir., 1946, 158 F.2d 883, 889, affirmed 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154; United States v. Manton, 2 Cir., 1938, 107 F.2d 834, certiorari denied 309 U.S. 664, 60 S.Ct. 590, 84 L.Ed. 1012. The second instruction, on the degree of participation necessary to make a person a part of a conspiracy, was not unfavorable to the defendants. It was, in part, [page 7900, Record on Appeal]: “It requires more than proof of a mere passive cognizance of a crime on the part of a defendant to sustain a charge of conspiracy to commit it. And you must find that the defendant did some act or made some agreement showing an intention to participate in some way in such conspiracy.” We find no error here. Moreover, no objection was made to the second instruction on conspiracy under Rule 30, Federal Rules of Criminal Procedure, 18 U.S.C.A., or otherwise. 5. Judicial Comment on Evidence Error is claimed because the court said a certain number of witnesses, naming them, had testified on the issue of Bridges’ membership in the Communist Party for the government, and a certain number for the defendant on the same issue, naming the witnesses. Neither in what was said nor from the context in which it was said, was there any suggestion that the number of witnesses should be taken into consideration rather than the effect on the jurors of their testimony. The very full instructions given the jury as to the presumption of innocence, the burden of the government, and weight and credibility to be given to testimony of witnesses negative any idea that the jurors might have understood that the mere number of witnesses to any point of fact should rule over their judgment in reference to it. See Erie Railroad Co. v. Fritsch, 3 Cir., 1934, 72 F.2d 766, certiorari denied 293 U.S. 620, 55 S.Ct. 213, 79 L.Ed. 708. 6. Bridges v. Wixon That the trial court was correct in excluding from the jury any consideration of the decision of the Supreme Court in Bridges v. Wixon, supra, was fully discussed in this opinion ante. We add here only that the court did not err in charging the jury that no inference was to be drawn from the many references to that case which were made by defense counsel during the trial. 7. Elements of Third Count of Indictment We see no merit in appellants’ contention that the court in its instructions misstated the elements of the offense charged against Schmidt and Robertson in the third count. The indictment was phrased within the provisions of Title 8 U.S.C.A. 1946 ed., § 746(a) (5)a. There was no reversible error in the court’s explanation that the expression “to abet” means, “ * * * knowingly and with criminal intent to aid, promote, encourage or instigate, by act or counsel, or both act and counsel, the commission of such criminal offense.” There was no objection to this instruction under Rule 30, Federal Rules of Criminal Procedure, 18 U.S.C.A., or otherwise. 8. Criminal Intent As for the trial court’s instructions on the intent necessary to convict defendants Schmidt and Robertson of any of the counts charged, they were favorable to the defendants. For while Schmidt and Robertson admitted aiding Bridges to obtain citizenship, the court charged that such aiding would not be a crime unless it was with an, “ * * * intent upon the part of either of these defendants to deceive and defraud the Government of the United States.” 9. Materiality Appellants argue that the trial court’s instruction that the false statements were material to the naturalization proceeding as a matter of law, was erroneous. The question of materiality is always for the court. Sinclair v. United States, 1929, 279 U.S. 263, 298, 49 S.Ct. 268, 73 L.Ed. 692; Travis v. United States, 10 Cir., 1941, 123 F.2d 268, 270. And that'is also the rule in this circuit despite appellants’ misconstruction of the holding in Luse v. United States, 9 Cir., 1931, 49 F.2d 241. For while it is true that in the Luse case this court said that what is material in a perjury case is a mixed question of fact and law, we also said that the question of fact is confined to what actually took place. Once it was determined what took place, the materiality of such facts to the issue was for the court alone. There was no error here. Appellants are asserting that the evidence introduced at the trial does not support the verdicts returned by the jury. This claimed reversible error has been explored by each member of the court and the task of expressing the court’s views on this subject has been assigned to Judge POPE. His treatment of our conclusions follows immediately. POPE, Circuit Judge. We now proceed to state the reasons for the Court’s conclusion that the evidence upon each count was sufficient to sustain the verdict. As to the Second Count — The alleged false statement as to Communist Party membership. The second count, by which Bridges was charged with knowingly making a false statement under oath, a statement that he did not and had not belonged to the Communist Party, is the key to the indictment. We consider the evidence upon that charge first. The jury was instructed that in order to convict under this count it must find that there was proof, beyond a reasonable doubt, of Bridges’ actual membership in the Communist Party; that “mere association between an individual and an organization does not constitute membership. * * * A person may approve some or all of the aims or activities of an organization, yet this does not make him a member. Even sympathy for the program of an organization, or contributions of money do not create the legal status of membership * * * The law also recognizes that active cooperation with an organization in its activities, does not create the legal status of membership. * * * Even affiliation, if you should find it to exist in this case, would not constitute the same legal status as membership, for the reason that membership refers to something more than, and different from affiliation.” This instruction had practical significance, for a very great volume of the testimony went no farther than to disclose that for a considerable period of time Bridges attended and participated in many Communist meetings, numbers of them “closed” meetings, that is, purportedly open to Communists only; that he presided at some of these meetings and that he frequently sought the advice and help of known Communist leaders and organizers, particularly in planning union activities and the strategy and tactics to be employed by his union during strikes. Similarly it was shown that he and his associates sought and made use of the Communist Party newspapers and printing establishments, and during the same time he frequently had occasion to give expression to opinions disclosing his close following of the Communist Party line. Ten of the Government witnesses who gave such testimony were themselves former Communists. Several of these were former longshoremen or engaged in related work, had been officials of unions in which Bridges had been active, and had been closely associated with him. Some had been engaged in editing Communist newspapers. Others of these witnesses had been organizers for the Communist Party who had devoted particular attention to forming Communist groups or “fractions” among labor unions, and particularly among the unions representing men employed along the waterfront. ’ The picture which these men drew was, in broad outline, that of a continued