(dissenting).
The appellants contend that prior to the amendments to the Foreign Agents’ Registration Act effected by the Act of April 29, 1942, 56 Stat. 248, 22 U.S.C.A. § 611 et seq., registration was required only if there was an “express contract” of employment between the agent and the foreign principal. They assert that the League was not bound by an express contract of employment, i.e. a “written or oral” contract, to serve as a propaganda agent for the German Reich or any of its departments of government; hence the League was not required by law to register with the Secretary of State and *866the appellants may not be found guilty of a conspiracy to aid the League to avoid registration.
Was an express contract of employment necessary in order to require registration by the League? In discussing this question a statement' of the pertinent statutory provisions is desirable.
The original act by Section 1(d), 52 Stat. 632, defined as “agent of a foreign principal” “any person who acts or engages or agrees to act as a public-relations counsel, publicity agent, or as agent, * * * for a foreign principal.” The quoted language of the definition literally embraces as an agent of a ■ foreign principal any person “who acts” as an agent as distinguished from one who “engages” or “agrees” to act as an agent. The use by Congress of the disjunctive “or” seems significant. On the other hand, it will be observed that most of the relations designated in subparagraph (d) are those in which ordinarily there is an express contract of employment. The legislative history of the act as well as its other provisions also tend to support the view that Congress had in mind relations created by contracts of employment.1 Section 2 of the original act, containing the registration provisions for the failure to observe which the criminal sanctions of Section 5 are to be imposed, provides that “an agent of a foreign principal” shall file with the Secretary of State “a copy of all contracts of employment under which such person acts or agrees to act as such agent, if written, or a full statement of the terms and conditions thereof, if oral * * Section 2(d) requires the registration of the date when each “contract” was made. Does not the use of the word “contract” and the phrase “contracts of employment” indicate that Congress intended that agency created by express contract, rather than a status of principal and agent reasonably inferred from the conduct of the parties,2 to have been the basis for the requirement of registration ?
By the Act of August 7, 1939, the Foreign Agents’ Registration Act was amended in pertinent part by adding a provision that the term “agent of a foreign principal” “shall include any person who receives compensation from or is under the direction of a foreign principal.”3 This language construed literally would include the League for it must be conceded that the evidence shows that the League was acting under the direction, indeed, under the domination, of the German Labor Front. But the definitions of Section 1 must be read in the light of the registration provisions of Section 2. These remained unchanged by the 1939 Act. Having in mind the consideration that a penal statute must be construed strictly, I conclude that an express contract was necessary in order to require registration by the League.
*867The views hereinbefore expressed as to the necessity of the existence of an express contract between principal and agent as a requirement of registration find confirmation in the 1942 amendments to the act. See 56 Stat. 248. Section 1 was amended so that paragraph (d), subsection (1) now reads: “The term ‘agent of a foreign principal’ includes any person who acts or agrees to act, * * * or who is or holds himself out to be, whether or not pursuant to contractual relationships 4 a public-relations counsel, publicity agent * * * servant, agent, representative, or attorney for a foreign principal * * Section 2 of the act was amended by striking out paragraph (c) and substituting in lieu thereof a new paragraph which in pertinent part is as follows: “Copies of each written agreement and the terms and conditions of each oral agreement, including all modifications of such agreements, or, where no contract exists, a full statement of all of the circimnstances, by reason of which the registrant is an agent of a foreign principal * * 5 See 22 U.S. C.A. §§ 611(c) (1) and 612(a) (9). It will be perceived that the amendments were designed to cover situations in which a person serves as a propaganda agent for a foreign principal and subject to its direction but without an express contract of employment.6
It is not alleged in count II of the indictment that there was an express contract between German-American Vocational League, Inc., and the German Labor Front or any other foreign principal which embraced within its terms the multitudinous propaganda activities performed by the League for the Reich. It is alleged that in order to disguise the true scope and nature of its agency for the Reich the League did enter into a contract with the Labor Front which provided for reciprocal rights of membership in the League and in the Front and repayment by the Front to the League of dues collected by the League and sent by it to Germany.7
The charging part of count II of the indictment charges “(a)” that knowing that *868the League was “agent, public relations counsel, publicity agent and representative of. and for a foreign principal”, and, knowing that there existed an obligation on its part to register with the Secretary of State, the defendants would aid the League in refusing and neglecting to file the registration statement, and “(b)” that in addition to the foregoing as set out under “(a)” the appellants would disguise and conceal the true nature of the League’s activities as an agent of the foreign principal.
At the trial one Volbers testified that a written contract was entered into in the summer of 1936 between Johansen, the president of the League, Volbers, sometimes its treasurer and secretary, and Eut-ing, a representativé of the German Labor Front, whereby it was agreed that the Front should return dues forwarded by the League to Germany and that a certain “amount” of copies of German Labor Front propaganda publications were to be sent to the League by the Front and distributed by the League among its member!. Johan-sen testified that there was no written contract entered into at the time indicated by Volbers. He was then asked by the United States Attorney, “Well, you do recall that in January, 1937, the German Labor Front wrote a letter confirming the agreement made by Euting and you, whether that agreement was verbal or in writing?” Jo-hansen answered, “Yes.” The letter8 referred to was introduced in evidence and it provided in substance that the League would afford adequate “care and guidance” to members of the German Labor Front in .the United States and' that the Front would reimburse the League “with 25% of the dues paid by our members”, and would pay for “social welfare of our citizens”. The United States next demonstrated by an abundance of testimony that this letter was a “cover” for the real and substantial activities of the League though it was shown also that the League received from the Front money totalling between $12,000 and $13,000.
The court charged in the terms of the statute, reading all pertinent parts of the Act to the jury. He stated that the appellants could not be found guilty unless the jury found also that the League “was' employed as an agent of the German Reich” and acted at its behest and command. The court, as the appellee candidly points out in its brief9 then defined the term “agent” “substantially as it is defined in the ordinary common law.” 10 No very apt request for a charge respecting the necessity of a finding by the jury that there was an express contract between the League and a foreign principal was made by the defendants, though .they shot in the general direction of such a target. The request which most nearly approached this issue was No. 15,’ viz., “The nature of the task or tasks which * * * [the League] was required to perform under such agency agreement must be proven.” This request went too far for the parties were not engaged in trying a suit on a contract. The appellants should have requested a charge that it was necessary that the jury find that there was an express contract or agreement that the League should embark upon the task of being a propaganda agent for the Reich.
At the trial, as is demonstrated by the record, at the argument and upon its brief before this court, the United States took the position that no proof of the existence of an express contract was necessary and that in fact .there was no express contract, whether oral or written, which embraced the multitudinous activities performed by the League for the Reich. The appellee took the position at the .trial and now takes the position that since it proved that the League performed services for the Reich it was an agency of the Reich as that term is defined at common law. In its brief in this court it malees that precise point, cit*869ing Section 1 of the Restatement, Agency, and paragraph (a) of the Comment to that Section.11 The appellee also states in its brief “If * * * [the appellants] mean that the agency relationship is consensual and that there must be an understanding between principal and agent as stated in the Restatement of Agency, they are, of course, correct; if they mean that the Act in employing the term ‘agent’ did not include every person who would be recognized as an agent by the common law but included only such persons as are agents pursuant to a particular form of words, they are reading a limitation into the Act which has no statutory justification.”
In this very confused situation certain things stand out. It is apparent (1) that the written contract proved by Volbers’ testimony, as well as that contained in the letter of January 12, 1937, proved by Jo-hansen’s testimony, if in effect one and the same contract, was abandoned by the ap-pellee as an agreement which represented the undertakings by the League on behalf of the Reich; (2) that the appellee tried the case on the theory that proof of the existence of an express contract, whether written or oral, was not necessary and that agency proved by the acts of the parties within the definition of Section 1 of the Restatement, Agency, and Comment (a) thereof, was sufficient; and (3) that the charge of the court was substantially to that effect.
As has been indicated, if my interpretation of the Act as it existed prior to the 1942 amendments is correct, it follows that the League was not required to register with the Secretary of State and that the defendants could not be found guilty of conspiracy to aid it in avoiding registration. If the 1942 amendments had been in effect I entertain no doubt that the agency relationship shown to have existed between the League and the Reich would have been within the purview of the statute. The appellants have been tried and convicted upon a theory of the statute stated in II.R.No.1547, 77th Cong., 1st Sess., as being “probably implicit” in the Act prior to the 1942 amendments. See note 6 supra. But a criminal statute must afford an adequate and certain definition of the crime which it purports to create. Otherwise it will not meet the requirements of the Fifth Amendment. See Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516, 14 A.L.R. 1045; United States v. Brandenburg, 3 Cir., 144 F.2d 656, 861. Judgments of conviction may not be based upon a definition of a crime which is not expressed with full certainty in a penal statute.
For these reasons I conclude that the judgments of conviction should be reversed.
Tlie McCormack Committee, reporting in 1935 on its “Investigation, of Nazi and Otlier Propaganda” recommended: “That the Congress should enact a statute requiring all publicity, propaganda, or public-relations agents or otlier agents or agencies, who represent in this country any foreign government or a foreign political party or foreign industrial or commercial organization, to register with the Secretary of State of the United States, and to state name and location of such foreign employer, the character of the service to be rendered, and the amount of compensation paid or to be paid therefor.” H.R.Rep. No. 153, 74th Cong., 1st Sess., p. 23. The House and Senate committee reports, urging enactment of the McCormack bill which became the 1938 Act, both declare that its purpose was to carry out these recommendations of the McCormack committee. H.R. Rep. No. 1381, 75th Cong., 1st Sess., p. 1; S.Rep. No. 1783, 75th Cong., 3d Sess., p. 2.
That the status of principal and agent may be imposed by law upon parties from their conduct, reasonably interpreted, is well established. See Wil-liston on Contracts, Revised Edition, VoL 1, § 274; Restatement, Agency, §§ 1 and 15; 2 C.J.S., Agency, § 1; Agency, American Jurisprudence, § 3.
The Report of the Committee on the Judiciary of the House of Representatives states, “The definition of ‘agent of a foreign principal’ is * * * broadened by including ‘any person who receives compensation from or is under the direction of a foreign principal’.” A letter from the Secretary of State to the Chairman of the Judiciary Committee is included in the report and this letter states in pertinent part that the addition of the phrase “serves to give legislative sanction to the Department’s interpretation of the term ‘agent of a foreign principal’ as used in the present law and is for this reason considered desirable.” See H.R.Rep. No. 711, 76th Cong., 1st Sess., p. 1, pp. 2, 3. See also S.Rep. No. 902, 76th Cong., 1st Sess., PP. 1, 2.
Emphasis supplied.
Emphasis supplied.
Little light is cast upon the 1942 amendment by its legislative history. Attention is directed to H.It.Rep. No. 1547, 77th Cong. 1st Sess. This report indicates that the proponents of the amendment felt that few fundamental changes were to be made in the operation of the Foreign Agents Registration Act by the amending statute. The report states, p. 3: “With respect to the term ‘agent of a foreign principal’ as defined in section 1(c), it is believed that clause 2 [of the amending act] merely expresses what is already implicit in the statute * * Clause 3 [of the amending Act] which holds that for an individual to assume or purport to act as an agent of a foreign principal suffices to constitute him such an agent, is probably implicit in the present act.”
See subparagraph (j) of paragraph 45 of count I, incorporated by express reference into count II, viz., “that for the purpose of concealing and hiding its true character as agent * * * [the] League would * * * assume the false front of * * * a social, vocational and fraternal association of innocuous character, concealing its true part in the * * * plan of world dominance of * * * [the] Reich * * * and * * * [the] League * * * in order to have written evidence for use in its won defense in the event of official investigation of the true scope and nature of its agency, and in order to disguise such true agency did solicit and enter into a formal written eontraet icith * * * [the] German Labor Front, providing, among other things, for reciprocal rights of membership in * * * [the] League, and in * * * [the] Front, [for] the collection by * * * [the] League of dues * * *, said contract being intentionally silent and inexpressive of the whole scope and nature of the true agency of * * * [the] League, containing no reference to and failing to disclose the part being played and to be fulfilled by it in the broad scheme of dissemination of propaganda in behalf of * * * [the] Reich and the other agency services to be performed [by the League] * *
See also subparagraph (c) of paragraph 45 of count II which alleges that the League cancelled the written contract “ * * * to olear the way for a continuance of the substantial and manifold forms of agency which existed outside of and not by virtue of said written eontraet, or any other formal icritten contract or undertaking * * * it, [the written contract] being and having been the only formal loritten undertaking touching, even in limited part, upon the agency or agen,cies which existed in reality on the pant of * * * [the] League for its foreign principals * * *, [for] such [written] contract had never been expressive of, nor intended to express or encompass, the *868real substantial and complete agency, and activities pursued and to be pursued in furtherance of such agency, on the part of * * * [the] League for its foreign principals * * (Emphasis added to quotations.)
Exhibit No. G-37 NY 621.
See the brief of the United States, pp. 65-66.
The learned trial judge stated, “ * * * you must thus be satisfied that the German-American Vocational League was actually an agent of one or more of the foreign principals mentioned in the indictment.
“The evidence you are to consider in determining whether or not the agency existed, like the evidence from which the Government asks you to infer the existence of a conspiracy, is entirely circumstantial
Section 1 is as follows: “Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.”
Comment (a) states, “The relationship of agency is created as the result of eon-duct by the parties manifesting that one of them is willing for the other to act for him subject to his control, and that the other consents so to act. The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on his behalf and subject to his control.”