Dennis v. United States, 6451-6459

• Decision Date: 11 April 1962
• Docket Number: 6474-6482.,No. 6451-6459,6451-6459
• Parties: Raymond DENNIS, Irving Dichter, James Durkin, Chase J. Powers, Harold Sanderson, Albert Skinner, Maurice E. Travis, Jesse R. Van Camp, Charles H. Wilson, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

302 F.2d 5 (1962)

Raymond DENNIS, Irving Dichter, James Durkin, Chase J. Powers, Harold Sanderson, Albert Skinner, Maurice E. Travis, Jesse R. Van Camp, Charles H. Wilson, Appellants, v. UNITED STATES of America, Appellee.

Nos. 6451-6459, 6474-6482.

United States Court of Appeals Tenth Circuit.

March 5, 1962.

Rehearing Denied April 11, 1962.

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

George B. Searls, Washington, D. C. (J. Walter Yeagley, Washington, D. C., Lawrence M. Henry, Denver, Colo., Robert L. Keuch and Carol Mary Brennan, Washington, D. C., on brief), for appellee.

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

MURRAH, Chief Judge.

These appeals are from judgments convicting the nine appellants of conspiracy to defraud the United States (18 U.S. C.A. § 371). The indictment charges, in essence, that appellants, together with five other defendants not involved in this appeal, and others unknown to the Grand Jury, conspired to fraudulently effectuate, on behalf of International Union of Mine, Mill and Smelter Workers, a compliance with Section 9(h) of the Labor Management Relations Act of 1947 (sometimes hereinafter referred to as the Taft-Hartley Act)¹ by means of filing false non-Communist affidavits and to thereby obtain and use the facilities and services of the National Labor Relations Board (sometimes hereinafter referred to as N.L.R.B., or Board).

Appellants were all officers or employees of the International Union of Mine, Mill and Smelter Workers (sometimes hereinafter referred to as Mine-Mill, or Union) within the period beginning in 1949 and ending in 1956, during which the alleged conspiracy existed.

It is here urged that the indictment does not state an offense; that motions for the production of grand jury testimony and statements under Section 3500, Title 18 U.S.C.A. and motions for severance, change of venue, continuance and for a new trial were improperly denied; that the evidence is insufficient to support the judgments as to any of appellants; that the trial court erred in the admission and exclusion of evidence; and that the summation by the prosecution and the court's charge to the jury were prejudicially erroneous. Appellants also preserve issues concerning the constitutionality of the general conspiracy statute (18 U.S.C.A. § 371), the non-Communist clause of the National Labor Relations Act of 1947 (29 U.S.C.A. § 159 (h)), and Section 3500, solely for further review in the Supreme Court.

In a comprehensive opinion, the trial court analyzed and sustained the sufficiency of the indictment here under attack. United States v. Pezzati, D.C., 160 F.Supp. 787. We are in full agreement with the reasoning and conclusion contained in that opinion and, for the reasons there stated, hold that the indictment charged an offense against the United States.

Appellant-Travis moved for severance, continuance, and change of venue on the ground that his recent convictions in the same court for the substantive offense of filing false non-Communist affidavits, with extensive attendant publicity, precluded a fair trial. The remaining appellants each moved for severance on the ground that they suffered prejudice by being jointly tried with Travis. Appellants acknowledge, of course, that such relief is largely within the discretion of the trial court, and that its ruling will not be disturbed in the absence of clear abuse. And see Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101.

These motions bring into focus the basic right to a fair and impartial trial, and we proceed on the premise that this right transcends any right to prejudicially publicize or sensationalize its collateral aspects. And, it is no answer to say that an unfair trial is the only one obtainable under the circumstances. See Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250; Irvin v. Doud, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751. But the mere fact of unfavorable publicity does not of itself raise a presumption of prejudice. See Blumfield v. United States (8 C.A.), 284 F.2d 46, cert. den. 365 U.S. 812, 81 S.Ct. 693, 5 L.Ed.2d 692. The prejudice must have manifested itself so as to corrupt due process.

In ruling on Travis' pre-trial motions for severance and continuance on the grounds of prejudicial publicity, the trial court indicated that the proper remedy was change of venue, and invited such motion. The record indicates that such motion did not come until after the jury was empanelled and the question of jeopardy was apparent. Moreover, there was no showing that the unfavorable publicity so saturated the community-mind as to render a fair trial unlikely. Indeed, the record affirmatively shows that only four members of the jury had ever heard of Travis and there was no showing that these four were in any way prejudiced by their knowledge of him.

The motions of the remaining appellants, in addition to the publicity touching Travis' previous trials, also alleged that their joint trial would be prejudicial because certain admissions and other evidence concerning Travis would come before the jury. But, by reason of the very nature of a conspiracy case and the overwhelming evidence as to Travis' status as one of the conspirators, the evidence as to his admissions and activities would have come before the jury regardless of his physical presence. In these circumstances, we do not think the trial court erroneously refused these motions.

The sufficiency of the evidence: without minutely detailing the proof presented by the government, it is sufficient to note that while conflicting, the evidence was such that the jury could, and obviously did, find that appellants, prior to the filing of the affidavits in question,² were members of or affiliated with the Communist Party; that such membership or affiliation continued after the filing of the affidavits; and that at least some of the affidavits thus filed were false. Equally sufficient is the proof that the purpose of filing the affidavits was to obtain the services and facilities of the N.L.R.B. and that Mine-Mill did, by means of such affidavits, secure and use those facilities.

Appellants are not, however, charged with the substantive offense of filing false affidavits. They are charged with conspiracy to defraud the United States and the conspiracy, or unlawful agreement, is the gist of the offense. Braverman v. United States, 317 U.S. 49, 54, 63 S.Ct. 99, 87 L.Ed. 23; Carlson v. United States (10 C.A.), 249 F.2d 85.

Appellants contend that the evidence is totally lacking with respect to proof that any of them agreed or conspired together, or with any other persons, to accomplish the fraud. As proof of a conspiratorial agreement encompassing all of the appellants, the government undertook to show that aside from their respective positions in Mine-Mill, the accused, as members of the Communist Party, concertedly acted in accordance with a contemporaneous Communist Party policy of having its members occupying official Union positions file false affidavits in order to avail their Union of the services of the N.L.R.B.

The government's proof satisfactorily established that in 1947, upon passage of the Taft-Hartley Act, Mine-Mill adopted a policy of noncompliance which continued until July 1949, when its International Executive Board unanimously voted to comply.³ It was further shown that Mine-Mill's policy of noncompliance, extending through 1948 and into 1949, was the same as that of the Communist Party. And, the government introduced four pieces of evidence intended to prove, inter alia, that Mine-Mill's change of policy was the implementation of a like Communist Party policy change:

1. Witness Loutner testified that in 1949 he was a Party functionary, a member of the National Review Commission, head of the New York State Review or Disciplinary Commission, and member of the New York Organizational Commission of the Communist Party and that in June of that year, he attended a meeting of the Organizational Committee in New York where one Sid Stein, whom he identified as an Assistant Secretary of the Party Labor Commission, discussed Party policy and its application relative to compliance or noncompliance with the Taft-Hartley Act. Specifically, Loutner testified that Stein said: "(T)hat our (the Party) position in the light of the situation at that particular moment must be a principle position * * * based on a consideration that we must not resign leadership in * * * the trade union movement and * * * that kind of principle understanding necessitates a change in our technical approach in relation to the Taft-Hartley noncompliance law * * * that the Party in that particular recent period suffered a lot of losses because of various raids, and that it was then the considered judgment of the Party that for the sake of carrying out a principle position there would have to be compliance with the Taft-Hartley law, as far as non-Communist affidavits are concerned * * * that there will be Party leaders in the labor movement * * * who will resign publicly. They will state in their public resignation that that resignation does not necessarily mean that they broke with the ideology or the principles of the Communist Party, but that this resignation is forced upon them in order to maintain and stay with their membership and give leadership and guidance to them. * * * Ways and means will be found to maintain contact and liaison with the Party leadership. * * *"

2. Witness Mason testified that he was a member of the Board of Mine-Mill in 1941-1942 and from 1945 to 1953, inclusive, and that in the summer of 1949, at least a month before the July meeting of the Executive Board of Mine-Mill, he had a conversation with appellant-Travis in which "Travis said that quite a number of people out in the field were in favor of...