226 F.2d 540 (5th Cir. 1955), 15157, Jencks v. United States

Docket Nº:15157.
Citation:226 F.2d 540
Party Name:Clinton E. JENCKS, Appellant, v. UNITED STATES of America, Appellee.
Case Date:October 26, 1955
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 540

226 F.2d 540 (5th Cir. 1955)

Clinton E. JENCKS, Appellant,


UNITED STATES of America, Appellee.

No. 15157.

United States Court of Appeals, Fifth Circuit.

October 26, 1955

Rehearing Denied Dec. 1, 1955.

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[Copyrighted Material Omitted]

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E. B. Elfers, El Paso, Tex., John T. McTernan, Los Angeles, Cal., for appellant.

Holvey Williams, Asst. U.S. Atty., El Paso, Tex., Russell B. Wine, U.S. Atty., San Antonio, Tex., Brandon Alvey, Atty., Dept. of Justice, Washington, D.C., for appellee.

Before TUTTLE, CAMERON and JONES, Circuit Judges.

CAMERON, Circuit Judge.

Appellant was convicted of violating Title 18 U.S.C.A. § 1001 by making false statements to National Labor Relations Board, a government agency. The indictment was in two counts, charging that, on April 28, 1950, he executed N.L.R.B. Form 1081 pursuant to Section 159(h), Title 29 U.S.C.A., same being the Non-Communist Affidavit of a Union Officer. Count One charged that appellant falsely stated in the affidavit that he was not then a member of the Communist Party, and Count Two that he was not then affiliated with the Communist Party. The jury returned a verdict of guilty on both counts, and he was sentenced to imprisonment for five years on each count, the sentences to run concurrently.

Appellant introduced no witnesses, but assigns a large number of errors of the court below, raising chiefly these questions: whether the evidence was sufficient to establish that appellant caused the affidavit to be filed, and that he was a member of or affiliated with the Communist Party at that time; whether evidence was wrongfully admitted of the filing by appellant of an affidavit six months before the one on which he was prosecuted; and whether the court erred in refusing a bill of particulars and in refusing appellant's request for inspection of certain F.B.I. records, or in failing to caution the jury concerning credibility of informers.

The facts as established by the jury verdict are set forth in the succeeding paragraphs. On April 28, 1950 appellant signed an affidavit on N.L.R.B. Form 1081 entitled, 'Affidavit of Non-Communist Union Officer', and swore to it before a notary public, which stated that he was a responsible officer of the union known as Amalgamated Bayard District Union of Mine, Mill, and Smelter Workers, Local 890, International Union of Mine, Mill and Smelter Workers and was not a Communist at the time. This affidavit was received in due course of mail at the Regional Office of the National Labor Relations Board in El Paso, Texas, on May 1st, accompanied by an undated letter signed by appellant as President of that local union and on its letterhead, stating that he would fill out and return the requisite Labor Organization Registration Form if a copy should be forwarded to him. Under the practices in force, the Board would not extend its facilities to any union not complying with the requirements of the Taft-Hartley Law, which required that the Non-Communist Affidavit be filed. May 2nd, the Regional Office of N.L.R.B. mailed appellant an acknowledgment of his affidavit (which appellant received) and stated that his union would be considered as in compliance with the filing requirements of the law.

The El Paso Regional Office had also received in due course of mail prior documents signed by appellant tending to establish a symmetrical course of dealing obedient to the terms of the Taft-Hartley Law. Among these were a financial report dated December 31, 1948, a certified list of union officers dated October 15, 1949, showing appellant to be president of the union; a Non-Communist Affidavit dated October 15, 1949 identical with that of April 28, 1950 upon which appellant was prosecuted; a certificate dated January 13, 1950 declaring that appellant intended, within ninety days, to re-file with N.L.R.B. financial data required by the Taft-Hartley Law; a financial report dated March 30, 1950; a certificate setting forth the names of the officers of the union of which appellant was president bearing date of April 27, 1950, and a letter of the same date requesting that appellant be sent a certain Taft-Hartley form.

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Each of these documents was signed by appellant, was stamped with the rubber stamp of the Regional Office showing date of receipt, and was a part of the Government files. The Regional Office mailed appellant a letter dated May 2, 1950 acknowledging the foregoing letter of April 27th, and sent appellant a Government from requested by him and giving certain instructions including the direction that registration information must be filed annually.

Subsequent to the April 28, 1950 affidavit upon which the prosecution was based, the Regional Office received, in due course of mail, a complaint upon the regular form provided by N.L.R.B. bearing appellant's signature, and setting forth a charge by appellant's union against one of the employers having a contract with appellant's union. This complaint could be recognized and handled by N.L.R.B. only after due filing of a Non-Communist Affidavit covering the year in which it was filed.

Plaintiff published in a paper put out by his local union in October, 1949 a statement, over the names of himself as President and the other local union officers, headed, 'What The Next C.I.O. Convention Means To Our Union'. This stated that appellant's union had suffered greatly from attacks of other unions under the Taft-Hartley Act, and that President Murray had threatened to expel appellant's union, among others, and stated, 'Now that our Union has signed the phony affidavits we can defend ourselves on a ballot in case of raids. We do not fear attack from that quarter any longer.' Prior to the filing of the October, 1949 affidavit referred to in the foregoing newspaper article, appellant's union had followed the policy of refusing to file the Non-Communist Affidavits.

Appellant's connection with the Communist Party was established by the evidence as beginning with April, 1946, at which time he was Chairman of the Denver, Colorado Chapter of American Veterans Committee. He attended a Communist Party meeting at the home of the Colorado Chairman of the Party and urged that there were too many Communist Party members in the Committee of which he was Chairman, and that members should spread themselves into other veterans' organizations. Appellant was employed by the International Union of Mine, Mill and Smelter Workers in connection with the local unions at Silver City and Bayard, New Mexico in 1946, at which time he was identified as a dues-paying Communist Party member. He attended closed Communist Party meetings in 1947 and was appointed member of a committee to bring Mexican-Americans into the Communist Party.

He attended Communist Party meetings in 1948, and also meetings at which was determined strategy of elements of labor unions under fire for Communist activities. It was decided that the Non-Communist Affidavits required by the Taft-Hartley Act should not be signed. In August, 1947 appellant attended a meeting of the Communist Party Steering Committee and participated in discussing ways and means by which appellant's union could be used to carry out policies of the Communist Party. In August, 1948 appellant attended a meeting of Communists at the home of the New Mexico Chairman, at which appellant outlined his plans as a candidate for Congress on the Progressive Party ticket. Early in 1949 appellant was appointed head of the Southern Section of the Communist Party in New Mexico, and at a Communist Party meeting in April, 1949 appellant was designated as the head of the Communist Party Labor activities. Appellant accepted the designation and stated that he would use his energies to insure labor support, including greater financial support, to the Communist Party.

In May, 1949 he attended a Communist Party meeting in the home of its leader in New Mexico, reporting that he was having success in recruiting Communist Party members from the ranks of Labor, and promised that his union

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newspaper would support causes of concern to the Communist Party. He identified as his assistant in this work the notary who took both his affidavits as a Non-Communist Union Officer. At a meeting of the Communist Party in 1949, appellant and others made plans for the forthcoming meeting of the Mexican-American Association in Albuquerque, New Mexico, and all present were given specific responsibilities in connection with that meeting.

At this meeting in August, 1949, a resolution was defeated which called upon the Mexican-American Association (frequently referred to as ANMA) to disavow Communist support and to condemn any organization that advocated the violent overthrow of the United States Government. Appellant was present at the meeting and his wife led the opposition to this resolution.

It was the policy of Communist Party officers and members not to carry membership cards during 1949 and 1950. Appellant was a member of the State Board of the Communist Party of New Mexico, and the Security Officer of the Party knew of no disciplinary action taken against appellant during 1949 or 1950 or any action to remove appellant as a member of the State Board.

During 1950, 1951 and 1952 appellant urged the members of his union to read the Daily Peoples World, a Communist newspaper, appellant stating that this paper brought the truth and that other newspapers were controlled by Capitalists. Sometime after July, 1950 appellant told a member of his union, afterwards expelled for his bold Non-Communist stand, that he had signed the Non-Communist Affidavit in 1950. In July, 1950 and at subsequent dates, appellant made statements to Harvey Matusow, a member of the Communist Party, connecting appellant...

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