Dennis v. United States, 7621-7626.

• Decision Date: 28 June 1965
• Docket Number: No. 7621-7626.,7621-7626.
• Citation: 346 F.2d 10
• Parties: Raymonds DENNIS, Appellant, v. UNITED STATES of America, Appellee. Irving DICHTER, Appellant, v. UNITED STATES of America, Appellee. Harold SANDERSON, Appellant, v. UNITED STATES of America, Appellee. Albert SKINNER, Appellant, v. UNITED STATES of America, Appellee. Maurice E. TRAVIS, Appellant, v. UNITED STATES of America, Appellee. Charles H. WILSON, Appellant, v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

346 F.2d 10 (1965)

Raymonds DENNIS, Appellant, v. UNITED STATES of America, Appellee.

Irving DICHTER, Appellant, v. UNITED STATES of America, Appellee.

Harold SANDERSON, Appellant, v. UNITED STATES of America, Appellee.

Albert SKINNER, Appellant, v. UNITED STATES of America, Appellee.

Maurice E. TRAVIS, Appellant, v. UNITED STATES of America, Appellee.

Charles H. WILSON, Appellant, v. UNITED STATES of America, Appellant.

Nos. 7621-7626.

United States Court of Appeals Tenth Circuit.

April 26, 1965.

Rehearing Denied June 28, 1965.

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Telford Taylor and Nathan Witt, New York City (George J. Francis, Denver, Colo., on brief), for appellants.

Donald P. MacDonald, Denver, Colo. (J. Walter Yeagley, Washington, D. C., Lawrence M. Henry, Denver, Colo., and George B. Searls, Washington, D. C., on brief), for appellee.

Before MURRAH, Chief Judge, and PICKETT and HILL, Circuit Judges.

MURRAH, Chief Judge.

Appellants appeal from a judgment of conviction on retrial after reversal of convictions on prior trial. See Dennis v. United States, 10 Cir., 302 F.2d 5.

On the prior appeal we sustained the validity of the indictment and the Court's denial of all pre-trial motions. We reversed the case for admission of hearsay testimony, but sustained the sufficiency of admissible testimony to support the verdict of the jury as to all of the appellants except Durkin and Powers. As to them, we held the evidence insufficient to support conviction.

This appeal perpetuates the attack on the indictment, the constitutionality of § 9(h) of the National Labor Relations Act, and the bar of the Statute of Limitations, but these points are not argued. The appellants do sharply challenge the sufficiency of the evidence on retrial to establish a conspiracy to violate § 9(h), but argue if a conspiracy is established, it is at variance with the one charged in the indictment. The contention is that the evidence on retrial is decisively different because some of the witnesses who testified in the former trial did not testify in this trial, and some who did gave materially different testimony. Several trial errors relating to the admission of evidence and instructions to the jury are reassigned in different trial context.

On the sufficiency of the evidence in this appeal to prove the alleged conspiracy the Government adheres to its original theory to the effect that before and after the enactment of § 9(h) the Communist Party was opposed to its non-communist affidavit provisions; that the appellants were at once members of the Communist Party subject to its discipline and officers or functionaries in the "Mine Mill" Union; that the Communist Party dictated the Union's opposition and consequent refusal to comply with the provisions of § 9(h); that in the Summer of 1949 the Communist Party changed its policy to comply with the provisions of the Act, and the Union, acting through the appellants as its officers, obediently changed its policy to one of compliance; and that pursuant to this changed policy, some of the appellants filed false non-communist affidavits with the knowledge and guilty intent of all.

It does not seem to be disputed that during all or part of the time laid in the indictment, all the appellants were members of the Communist Party and also officers or staff members of "Mine Mill";¹ that the Communist Party and the Union both opposed compliance with § 9(h), and at first the Union refused to comply. That thereafter the Communist Party changed its policy to advocate compliance with the Act, and the Union, acting through the appellant-directors, complied with the Act by filing non-communist affidavits, some of which were false. But, the appellants earnestly contend that this parallelism of policy and identity of membership falls far short of proving a conspiracy among the appellants to defraud the Government by filing false non-communist affidavits to effectuate Union compliance with § 9(h). We are reminded that the gist of the offense charged is the unlawful agreement which is not proved by the factum of filing false affidavits by one or more of the appellants. See United States v. Borelli, 2 Cir., 336 F.2d 376, 384.

The Government pins its case of unlawful agreement on the prolonged association of the appellants as members of the Party and officers of the Union, dedicated to a common cause, i. e. compliance with § 9(h), by the conscious filing of false noncommunist affidavits.

In the former appeal we were of the view that quite apart from the excluded testimony, the statements made by appellants Travis and Wilson relative to a change in the Party policy; the record proof that appellants as Party Members subjected themselves to Party discipline; the evidence that a "Steering Committee", "of which some of the appellants were members" transmitted the "Communist Party program, decisions, to the Union * * *" for implementation; appellants' common knowledge of the problems presented by the Taft-Hartley Act; and the common bonds existing between appellants as members of the Communist Party and as officers and employees of "Mine Mill", authorized the jury's findings that the alleged conspiracy laid in the indictment was consummated, i. e. See Dennis v. United States, supra, 302 F.2d p. 10.

We then proceeded to analyze the evidence to determine its sufficiency to justify the jury's findings of conscious participation on the part of the individual appellants. In doing so we observed the well known and salutary rule that "mere knowledge, approval or acquiescence in the object or purpose of a conspiracy does not make one a conspirator". Id. p. 12. We thought that while the evidence was unquestionably sufficient to show that Durkin and Powers were active members of the Communist Party, it was insufficient to connect them with the conspiracy. We reversed the case as to them with directions to grant the motion for acquittal.

After reviewing the record in some detail, we thought the evidence sufficiently connected Dichter, Sanderson and VanCamp with the conspiracy to justify the jury's verdict. VanCamp was acquitted on retrial.

Without tediously analyzing the proof relating directly to the appellants Dennis, Skinner, Travis and Wilson, we were of the view that their "individual acts and declarations were forcefully demonstrative of their culpable association in the conspiracy." (Former appeal, 302 F.2d p. 13)

If the evidence was sufficient to convict on the former appeal, the same evidence is, of course sufficient now, and the only question of sufficiency then is whether, as appellants contend, it was materially different and decisively less convincing.

Witness Mason died before retrial, and his testimony (Former appeal, 302 F.2d p. 9) concerning appellant Travis was perpetuated under the rule of Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409; West v. State of Louisiana, 194 U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965.

As to appellant Wilson, it is argued that testimony in this trial tending to connect him with the conspiracy is materially different from the former. Specifically, witness Fikes' testimony in the former trial concerning Wilson's incriminatory statements (made at a meeting in Bessemer, Alabama, in the Summer of 1949) to the effect that the letters of resignation from the Communist Party "wouldn't mean anything and would be phoney" was not repeated on retrial. Instead, Fikes and Lawrence (a member of the Communist Party who attended the Bessemer meeting but did not testify in the first trial) testified concerning the meeting that Wilson was opposed to policy change, and they gave no testimony concerning any statement by him that the resignations from the Party would not be genuine. Witness Lawrence is represented as quoting Wilson to the effect that "none of the Executive Officers could have any connection with the Party, that is, they could not attend meetings, meet with the Party officials or make contributions directly to the Party." The testimony of these witnesses was literally different, but the import of the language used was the same. It was susceptible to the inference that Wilson knew of and consented to the change in Party policy and actively participated in the effectuation of it as a Union officer.²

At the time of the Bessemer meeting in the Summer of 1949, Travis and Wilson were officers of the Union. Travis was Secretary-Treasurer and Wilson was a member of the Board. In accordance with the understanding at the meeting, Travis soon thereafter publicly announced his resignation from the Party in adherence to clearly articulated Party-Union policy. (See Mason's testimony, Former appeal, 302 F.2d p. 9)

Appellants suggest that the Government's case against each of the appellants is made up of uncorroborated statements of witnesses concerning incriminating statements by the appellants or by others in their presence, and these statements or admissions are wholly inadequate as a matter of law to prove the offense charged.

Uncorroborated statements or admissions are insufficient to prove guilt. See Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101; Yarbrough v. United States, 10 Cir., 309 F.2d 936; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Annotation 45 A.L.R.2d 1317; Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L. Ed. 790. But, incriminating statements made by one co-conspirator during the pendency and in furtherance of a conspiracy are admissible as an exception to the hearsay rule once a conspiracy has been shown.³ See Wong Sun v. United States, supra, citing Developments in the Law — Criminal Conspiracy, 72 Harv.L. R. 922, 989, 990; Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196; Krulewitch v. United States, supra; Gay v. United States, 10 Cir., 322 F.2d 208; and Cleaver v. United States, 10 Cir., 238 F.2d 766; Briggs v. United States, 10 Cir., 176 F.2d 317.⁴ This practice has often been...