Frasier v. United States, 5407.

• Decision Date: 22 May 1959
• Docket Number: No. 5407.,5407.
• Citation: 267 F.2d 62
• Parties: Rufus FRASIER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

267 F.2d 62 (1959)

Rufus FRASIER, Appellant, v. UNITED STATES of America, Appellee.

No. 5407.

United States Court of Appeals First Circuit.

May 22, 1959.

Herald P. Fahringer, Jr., Buffalo, N. Y., Lipsitz, Green & Fahringer, Buffalo, N. Y., on the brief, for appellant.

George H. Lewald, Asst. U. S. Atty., Boston, Mass., J. Walter Yeagley, Acting Asst. Atty. Gen., Anthony Julian, U. S. Atty., Boston, Mass., and Clinton B. D. Brown and Jerome L. Avedon, Attys., Department of Justice, Washington, D. C., on the brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

HARTIGAN, Circuit Judge.

This is an appeal by the defendant, Rufus Frasier, from a judgment of conviction of the United States District Court for the District of Massachusetts entered on July 22, 1958. The judgment was based on a jury verdict finding the defendant guilty on two counts of an indictment charging violations of 18 U.S. C. § 1001 (1952).¹ The first count charged that the defendant knowingly and willfully on or about August 6, 1952 executed and presented a false statement to the Department of the Army of the United States when he represented that he had not been a member of the Communist Party, U.S.A. The second count charged the defendant with a similar false statement in his denial of having attended formal or informal meetings or gatherings of the Communist Party, U.S.A.

The Government in support of these charges introduced a "Loyalty Certificate for Personnel of the Armed Forces." The defendant's signature was at the bottom of the second and third pages of this form. The third page contained a list of totalitarian, subversive and anti-constitutional organizations which organizations had been so designated by the United States Attorney General on October 30, 1950, pursuant to Executive Order 9835, 3 C.F.R., 1943-1948 Comp., p. 627, 5 U.S.C.A. § 631 note. One of these organizations was the Communist Party, U.S.A. The third page of this form also contained a statement immediately above the signature that the signer had read the list of organizations. The second page, which contained the allegedly false statements, states that the signer has read and understood the instructions on the form and has also read the list of subversive organizations on page three. This page also states that the signer has listed in a table below any subversive organizations with which he was associated in any of the following respects: (1) as a member, (2) as an employee, (3) by attendance or presence at formal or informal meetings or gatherings, (4) by attendance or presence at organizational or social activities of these subversive organizations or sponsored by them, (5) by distribution of their publications or (6) by any other identification or association. If the signer had no association with any of the listed subversive organizations he was to so indicate by writing "none" in the space indicated. The Loyalty Certificate executed by the defendant had the word "none" stamped in the appropriate space and did not list the Communist Party, U.S.A. as an organization with which he had any association.

In support of its contention that the defendant had been a member of and associated with the Communist Party, the Government relied on the testimony of two paid F.B.I. informants who had been members of the Communist Party in the Buffalo, New York, area. These witnesses testified that the defendant in 1948, 1949, 1950 and 1952 had attended many Communist Party meetings, some of which were closed to nonmembers of the Communist Party, and had also attended many Communist Party social functions, one of the objectives of which was to raise funds for the Communist Party. The defendant who took the stand on his own behalf, although contending that he had been mainly interested in Negro rights, the Henry Wallace campaign, and the American Labor Party, admitted that he probably had made contributions to the Communist Party, that he had attended meetings at Communist Party headquarters, that he had been notified to attend these meetings, and that he had also attended at least one Communist Party convention. He further testified that he first refused to sign the Army Loyalty Certificate but did so later following a personal conference with the Army officer in charge of such certificates at Fort Devens. He testified that he was reluctant to sign because of his association with the American Labor Party but did so when he discovered this organization was not on the list of subversive organizations.

The defendant has raised five points in his appeal. Four of these are without substantial merit and do not warrant extensive discussion. The fifth point, however, does raise a substantial question, our answer to which necessitates vacating the judgment below.

The defendant first suggests that the district judge's instruction to the jury as to the material elements required for the finding of membership in the Communist Party was defective and relies on Fisher v. United States, 9 Cir., 1956, 231 F.2d 99 as support for this contention. However, we are of the opinion that viewed as a whole the court's charge met the standards laid down in that case. The jury was specifically instructed that "* * * before you can find that the defendant was a member of the Communist Party, you must find that he was aware * * * that he was joining an organization known as the Communist Party and joined it of his own free will; also that he was accepted by the organization. In deciding these matters you may take into consideration whether the defendant complied with any of the Party's requirements of membership, such as signing the registration form. There is some evidence here that he did. Attendance at meetings as a delegate, and whether or not he made any contributions to the Party. * * *" The jury was further instructed that "* * * if you find the defendant was merely in sympathy with the aims of the Communist Party, he merely cooperated intermittently with the Communist Party in some of its lawful activities but was not cooperating in his capacity as a member, you would not be warranted in finding from this that he was a member of the Party." Moreover, there is ample evidence to support the jury's finding that the defendant desired to become a member of the Communist Party and that it, as is evidenced by...