United States v. De Lorenzo

• Decision Date: 13 August 1945
• Docket Number: No. 301.,301.
• Citation: 151 F.2d 122
• Parties: UNITED STATES v. DE LORENZO.
• Court: U.S. Court of Appeals — Second Circuit

151 F.2d 122 (1945)

UNITED STATES v. DE LORENZO.

No. 301.

Circuit Court of Appeals, Second Circuit.

August 13, 1945.

Ernest Cuneo, of New York City (Ernest Cuneo, of New York City, and Leo Gitlin, of Washington, D. C., of counsel), for Thomas V. De Lorenzo, defendant-appellant.

John F. X. McGohey, U. S. Atty., of New York City (Thomas F. Murphy, Asst. U. S. Atty., of New York City, of counsel), for plaintiff-appellee.

Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The defendant was a member of the United Automobile Workers C.I.O. and was employed by the Aircraft Division of the Union. In the early part of the year 1943 he was requested by certain C.I.O. labor members of the National War Labor Board, who were leaders of C.I.O., to accept a designation as a C.I.O. labor representative on a dispute panel of the New York Regional War Labor Board.

The National War Labor Board was organized at the request of the President of the United States and was composed of representatives of industry, of labor and of the public. The labor members consisted of representatives of the C.I.O. and the A.F.L. labor unions. The National Labor Board, in order to decentralize its activities and thus somewhat to lessen its own burdens, established tri-partite Regional War Labor Boards to assist in the settlement of disputes. The regional boards established dispute panels to sit in particular cases, consisting of representatives of industry, labor and the public. The labor representatives appointed to those dispute panels consisted of members of C.I.O. and A.F.L. unions. The C.I.O. union members sat as labor representatives on dispute panels that acted in settlement of disputes between C.I.O. unions and employers. The nomination of a labor representative to a dispute panel was made by a labor member of the National or Regional War Labor Board who belonged to the same union.

The defendant agreed to serve as a C.I. O. labor representative on the dispute panel of the New York Regional War Labor Board which was to hear the dispute between the DeWald Radio Mfg. Corp. and a C.I.O. union. He received a notice of his appointment in a letter from the Executive Director of the Regional War Labor Board and was also informed through a letter from the Administrative Office that it was necessary for him to fill in answers to the questions in Standard Form 57 (Application for Federal Employment) of the Civil Service Commission, which was enclosed, in order that he might be certified for service by the Commission. On April 26, 1943 he returned the application with his answers and signed and swore to the questionnaire before a notary public.

The appointment was to a federal position and it had to be certified to the War Labor Board by the Civil Service Commission in order to become effective. There was some evidence before the trial court that certification was not thought by the appointing authorities to be necessary but it was necessary as a matter of law. Sections 631 and 631-a of Title 5, United States Code Annotated; Executive Orders Nos. 7915, 9017, 50 U.S.C.A.Appendix § 1507 note. The latter order which created the War Labor Board contains no exceptions affecting the position we are dealing with and the former order provides that the classified civil service "shall include all positions now existing or hereafter created by legislative or executive action, of whatever function or designation, whether compensated by a fixed salary or otherwise, unless excepted from classification by specific affirmative legislative or executive action."

The letter and accompanying application for employment which DeLorenzo filled out indicated not only that he was subject to certification by the Civil Service Commission but that he was aware of that fact.

In Question 15 the applicant was asked: "Have you ever been arrested or summoned into court as a defendant or indicted or convicted or fined or imprisoned, or placed on probation * * *? If so list all cases without any exception whatsoever, under item 45 * * *." He answered under item 45 as follows: "Received summons and tickets for traffic violations in N.Y.C. in last 4 or 5 years and either paid fine or received suspended sentence." In a stipulation at the trial it was admitted (1) that on March 15, 1933, he was arrested by the New York Police and charged with disorderly conduct; (2) that on December 16, 1933, he was arrested by the New York Police charged with homicide by vehicle; (3) that on or about July 17, 1941, he was arrested in Hackensack charged with inciting a riot and malicious mischief; (4) that on or about December 2, 1941, he was indicted by the grand jury of Bergen County, New Jersey, for malicious mischief. The stipulation stated that the answers to Question 15 were untrue in that the facts set forth in items 1, 2, 3 and 4, supra, were not included. The defense on the merits to the evasions in answering Question 15 was chiefly that the four charges brought against the defendant in New York and New Jersey had been dismissed, that they were irrelevant in respect to his fitness as a labor representative on the dispute panel and finally that he believed that he was validly appointed irrespective of any action of the Civil Service Commission. He contends that under all the circumstances he could not have intended to make wilful misstatements. But the question of his intent was for the trial court. He had been informed that it was necessary for him to supply the information required by Form 57 and when he gave false answers it was reasonable to infer wilfulness from the falsity of the statements.

In question No. 37 the applicant was asked to furnish "a record of every employment both public and private which you have had since you first began to work." In answering he said that he was employed by Seversky Aircraft at Farmingdale, Long Island, between January, 1935 and July, 1939. But, according to the stipulation furnished at the trial, he was at no time employed by that company. His defense for his untruthful answer to Question No. 37 was similar to the one made in regard to Question No. 15.

It cannot be said that the questions asked were irrelevant. Those in both 37 and 15 bore on his social conduct and on his qualifications. The objection to the jurisdiction of the Civil Service Commission to make such inquiries seems to us wholly unsubstantial.

The defendant was indicted for violating Section 80¹ of Title 18 of the United States Code Annotated by making a false affidavit, knowing it to contain fraudulent and fictitious statements, in a matter within the jurisdiction of the United States Civil Service Commission. He was convicted after a trial before the court without a jury, which he had waived in writing. His chief defense was a claim of immunity under the Fifth Amendment of the Constitution from prosecution for false statements made in his affidavit before the Civil Service Commission. He claimed immunity because he had testified under compulsion before the sub-committee of the Committee on Naval Affairs of the House of Representatives that the statements in his affidavit were false. While he could not have been compelled by the Congressional Committee to give testimony which might show that he had made false statements in his application for employment, if he had asserted constitutional immunity on the ground that the answers might tend to incriminate him, he never claimed immunity on any such ground. Indeed, the only effect of making such a claim if it had not been sustained would have been to render his testimony before the sub-committee unavailable. It would not have afforded him a general immunity from prosecution.

The Fifth Amendment to the Constitution provides: "No person * * * shall be compelled in any Criminal Case to be a witness against himself * * *." It is the contention of the defendant that his testimony before the sub-committee was compelled, that his Constitutional privilege was thereby violated, and as a result that he cannot be prosecuted for any crime he revealed in that testimony.

The applicable statutes are set forth as follows:

Title 2 U.S.C.A. § 192, R.S. Sec. 102:

"Every person who having been summoned as a witness by the authority of either House of Congress * * * refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment * * * for not less than one month nor more than twelve months."

Title 28 U.S.C.A. § 634, R.S. Sec. 859:

"No testimony given by a witness * * * before any committee of either House * * * shall be used as evidence in any criminal proceeding against him in any court * * *."

No Incriminating Testimony Was Compelled Over Claim of Privilege.

The record before the sub-committee shows that the defendant did not give incriminating evidence under compulsion over claim of privilege. In reply to a question to the chairman as to whether he might refuse to answer questions and "if I do, what the penalty may be," the chairman said: "* * * I doubt very much whether you could refuse to answer on the ground that it would incriminate you, because you are not charged with a crime as far as this committee is concerned. You are simply asked to give your views, the information that you have about conditions at these plants. You are not on trial. We are not attempting to convict you of anything. It is just a question of getting information from you, as we have gotten from all the other witnesses that have come, so that I don't think you could put it on the ground of incriminating you, but so far as I am personally concerned as chairman of this committee, I would rule that if any questions were asked you that you thought would incriminate you in a criminal proceeding and might tend to prove your guilt, I would say that so far as I am concerned I wouldn't care about whether...