Bryson v. United States

• Decision Date: 30 November 1956
• Docket Number: No. 14859.,14859.
• Citation: 238 F.2d 657
• Parties: Hugh BRYSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

238 F.2d 657 (1956)

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

No. 14859.

United States Court of Appeals Ninth Circuit.

November 30, 1956.

COPYRIGHT MATERIAL OMITTED

Gladstein, Andersen, Leonard & Sibbett, Norman Leonard, Richard Gladstein, George R. Anderson, San Francisco, Cal., for appellant.

Lloyd H. Burke, U. S. Atty., Robert H. Schnacke, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before CHAMBERS, Circuit Judge, and HAMLIN and SOLOMON, District Judges.

SOLOMON, District Judge.

Hugh Bryson, president of the National Union of Marine Cooks and Stewards, was tried on two counts of an indictment which charged that he filed with the National Labor Relations Board "an affidavit of a non-Communist union officer," in which he falsely alleged that he was "not a member of the Communist Party or affiliated with such Party." He was charged with falsely denying membership in the first count and affiliation in the second count, all in violation of § 1001, Title 18, United States Code. The jury acquitted him on the membership count but found him guilty on the affiliation count. From a judgment of conviction and a sentence of five years imprisonment plus a $10,000 fine, Bryson appeals.

As early as 1937, Bryson was an active and militant member of both the Communist Party and the Marine Cooks and Stewards. He frequently caucused with other Communist members of the union for the purpose of influencing the union's meetings, elections and policies. Thereafter, and particularly between 1941 and 1947, the evidence showed that Bryson attended many Communist Party meetings. He solicited new members and participated in the expulsion of old ones. He was a member of the county and state committees of the Party. He acted as chairman of some meetings and gave "educational" talks at others. In one of these talks to new members he stated, "When you are in the Communist Party you accept discipline. You ask no questions. * * * for the good of the party you carry out any order that is given to you from the top fraction and you ask no questions."

Bryson's rise in his union was rapid. In 1937, he was a rank and file member of the San Francisco local; in 1947, he became national president of the union.

By 1947, Communist domination of labor unions was recognized as a national problem; for communists in great numbers had infiltrated union organizations not for proper and legitimate union objectives, but for the purpose of engaging in obstructive strikes called by the Communist Party often to support policies of a foreign government.¹ Congress, in an effort to rid unions of communist domination, enacted § 9(h) of the Labor Management Relations Act, 1947, 61 Stat. 136, 146, 29 U.S.C.A. §§ 141, 159 (h), popularly called the Taft-Hartley Act. § 9(h) provides that no representation cases and no unfair labor charges may be asserted by unions before the National Labor Relations Board until and unless each of their officers file with the Board affidavits that they are not members of or affiliated with the Communist Party or any other organization that believes in or teaches the overthrow of the United States Government by force or by any illegal or unconstitutional methods. § 1001 of Title 18, which provides penalties for false statements, was made applicable to such affidavits.

The Communist Party was concerned over the effect that this law would have on its influence in labor unions. At a meeting held in San Francisco during the summer of 1947 to discuss this problem, Leonard Kaplan, the trade union director of the Communist Party, who presided at the meeting, announced that it would be Party policy for Party members in labor unions to boycott the Taft-Hartley Act for the present, but if rival unions should raid their membership or involve them in jurisdictional disputes, they would resign from the Party in name only but remain in close touch and alliance with the Party. He further stated, "The Communist Party has spent many years in building and training leadership for the more progressive unions on the West Coast and they were not going to sacrifice that overnight by complying with the Taft-Hartley Act."

Bryson stated in reply that he did not see any need to comply with the Act for the present but that an impending struggle between his union and the rival Sailor's Union of the Pacific might make it necessary to file an affidavit at a later time.

Although there was no evidence of Bryson's attendance at Communist Party meetings subsequent to 1947, Clarence Ward, a member of Bryson's union, testified that Bryson urged him to go to Georgia and get signatures for the Progressive Party. He told Ward that the "Progressive Party isn't the Communist Party, but they have a program — the best program and we want to work hand in hand with them." Bryson offered to do things for Ward if he helped the Communist Party get Wallace on the ballot.

Ward also testified that in 1949 he was in an argument with Bryson over whether he would be seated at the union convention and whether he would get his expenses. Bryson told him that he had been given an opportunity to join the Communist Party but instead continued to fight the Party.

In the years following the enactment of the Taft-Hartley Act, unions whose officers had signed non-Communist affidavits attempted to take over the membership and job areas of non-qualifying unions. The Marine Cooks and Stewards was being harassed by other unions, particularly by the National Maritime Union. In this effort the other unions were aided by dissatisfied members of the Marine Cooks and Stewards. In April, 1951, and during the course of these struggles, Bryson and the other officers of the union, in order to be able to use the machinery of the National Labor Relations Board to protect the union against these attacks, swore that they were neither members of nor affiliated with the Communist Party.

In July, 1951, John Tiernan was being tried by the Marine Cooks and Stewards on the ground that he was guilty of dual unionism. After the trial and while he was arguing with Bryson, Tiernan said, "The American people are getting sick and tired of the Communist Party and their carryings-on in unions." To this Bryson replied, "If you are referring to me, I'm still a Communist and proud of it."

In the same month, two other union members, Stewart and Whitelaw, came to Bryson's office to ask for job assignment slips. Both of them had been assisting a rival union. As they were waiting to enter Bryson's office, they heard Bryson telephone for assignment slips for two other men who were in his office. However, when Stewart and Whitelaw asked for assignment slips, Bryson told them that he did not issue them. Stewart then called Bryson's attention to the fact that he had just arranged for assignment slips for the other men. When Whitelaw asked what a man had to do to get his job back, Stewart said, "Yes, belong to the Communist Party?" Bryson answered, "That might help." Stewart testified that he then said to Bryson, "Now comes the $64 question, Hugh. Tell me, are you a member of the Communist Party?" To this Bryson answered, "Yes, and I'm proud of it."

In his defense Bryson called 16 witnesses. They testified that Bryson's reputation for truth and veracity was good and that the reputations of the prosecution's witnesses, many of whom harbored deep animosity towards Bryson, were bad. They contradicted witnesses who had placed Bryson at particular Communist Party meetings and who had claimed that Bryson made admissions that he was a member of the Communist Party.

Bryson did not testify.

Bryson's first and principal contention is that the evidence is insufficient to support the jury's verdict that he was affiliated with the Communist Party at the time he filed his non-Communist affidavit.

Before considering that question, we shall first examine his objections to specific portions of the evidence to determine which evidence was properly admitted.

Bryson asks us to disregard as inadmissible hearsay, Leonard Kaplan's statements of Communist Party policy towards the non-Communist affidavit provision of the Taft-Hartley Act made at the Party meeting held in San Francisco in 1947.

These statements were properly admitted on the theory of "testimonial completeness." Bryson's reply to Kaplan becomes understandable only in the light of the statements to which he was replying. Here the principal fact was Bryson's intention as expressed in his reply. Other facts which were necessary to place the principal fact in its true light and which were part of the same transaction were admissible. Beaver v. Taylor, 1863, 1 Wall. 637, 68 U.S. 637, 17 L.Ed. 601.

Irrespective of Bryson's reply, the Government was entitled to prove that it was Communist Party policy for its labor union members to assume a clandestine relationship to the Party in the event it became necessary for them to file non-Communist affidavits. The relevance of this Party policy is manifest. Even apart from its acceptance by Bryson when it was announced at the San Francisco meeting, his proven knowledge of the policy and his strict and unquestioning obedience to Party directive would tend to show that he did comply with this policy. This, in turn, would tend to explain the absence of evidence of Bryson's active participation in Party functions after 1947, a deficiency which otherwise might be taken to indicate that Bryson had severed his connections with the Party. In fact, it is apparent from this and similar cases² that the Party adopted this policy precisely for the purpose of making it difficult to prove the falsity of non-Communist affidavits executed by Party members.

This method of proof, whereby the commission of future acts is inferred from an earlier intent to perform those acts, was sanctioned in the much-cited case of Mutual Life Insurance Co. of New York v. Hillmon, 1892, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706. Under the rule in ...