Hupman v. United States, 12203.

• Decision Date: 07 February 1955
• Docket Number: No. 12203.,12203.
• Citation: 219 F.2d 243
• Parties: Everest Melvin HUPMAN, also known as Melvin E. Hupman, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

219 F.2d 243 (1955)

Everest Melvin HUPMAN, also known as Melvin E. Hupman, Appellant, v. UNITED STATES of America, Appellee.

No. 12203.

United States Court of Appeals, Sixth Circuit.

February 7, 1955.

Marshall Perlin, New York City, and J. Paul Prear, Dayton, Ohio (Donner, Kinoy & Perlin, David Scribner, New York City, on the brief), for appellant.

Thomas Stueve, First Asst. U. S. Atty., Cincinnati, Ohio (Hugh K. Martin, U. S. Atty., George S. Heitzler, Asst. U. S. Atty., Cincinnati, Ohio, on the brief), for appellee.

Before SIMONS, Chief Judge, and MILLER and STEWART, Circuit Judges.

SIMONS, Chief Judge.

The appellant was convicted on January 15, 1954 upon an indictment filed in the United States District Court for the Southern District of Ohio, containing two counts, each charging the appellant with violating § 1001 of Title 18 U.S.C., in that he made a false, fictitious and fraudulent affidavit, as a Non-Communist Union Officer. He was sentenced separately on each count but the prison sentences were made to run concurrently. Upon his appeal, he presents nineteen separate specifications of error with some of them divided under multiple sub-heads, each claim of error being fully, and with great emphasis, argued in his brief.

We have given careful consideration to them all, realizing, as we said in Stumbo v. United States, 6 Cir., 90 F.2d 828, 833, that where everything is emphasized, it often results that there is no emphasis and that substantial error might be overlooked in the unnecessary massing of insubstantial complaints. The extravagant and unnecessary multiplications of exceptions and assignments of error have often been condemned, Badders v. United States, 240 U.S. 391, 36 S.Ct. 367, 60 L.Ed. 706; Central Vermont Railway Co. v. White, 238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433. In Gariepy v. United States, 6 Cir., 189 F.2d 459, 461, we noted the observation in the dissent of Mr. Justice Holmes in United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 304, 66 L.Ed. 619, "`If this case raised a question of pleading I should go far in agreeing to disregard technicalities that were deemed vital a hundred or perhaps even fifty years ago.'"

In respect to the sufficiency of an indictment, it has been repeatedly held, as in the Behrman case, supra, "It is enough to sustain an indictment that the offense be described with sufficient clearness to show a violation of law, and to enable the accused to know the nature and cause of the accusation and to plead the judgment, if one be rendered, in bar of further prosecution for the same offense." The indictment, in the present case, was thoroughly considered by Judge Martin of this court when sitting, by designation, in the District Court, he denied a motion to dismiss it for failure to state an offense. With his well considered views developed in his memorandum opinion of January 29, 1953, we are in full accord.

The statute under which the appellant was indicted is Title 18 U.S.C. § 1001. It is printed in the margin.¹ It is incorporated by reference in § 159(h) of the Taft-Hartley Act, Title 29 U.S.C.A., which is likewise printed in the margin.²

The major controversy revolves about the admission into evidence of an Affidavit of Non-Communist Union Officer, purporting to be signed and sworn to by the appellant, which was found in the files of the Labor Board at Washington. That affidavit is printed in the margin.³ It was made upon a printed form provided by the Labor Board and appears to be regular upon its face. The question, therefore, is not one of "admissibility" but whether, by itself alone, without support of the notary or identification of signature, it can support a jury verdict which, necessarily, requires a finding of fact by the jury that it was signed and sworn to by the appellant and that he either filed it or caused it to be filed with the Labor Board.

We turn, therefore, to the record which we have taken great pains to review. Virginia Bantel was the Legal Examiner for the Cincinnati office of the Labor Board. Her duties included determining the sufficiency of documents filed by labor organizations which desired to comply with §§ 9(f, g, h) of the National Labor Relations Act, correspondence with those organizations and maintaining records concerning their compliance with the requirements of the Act. She received the documents, determined their completeness and, if all the papers had not been received, she requested those that were missing. When she determined that all of the documents received were complete, she placed the Union in compliance by letter. She then sent the documents to the Washington office of the Board for permanent filing. While she had no personal or independent recollection of the receipt of the affidavit here involved, and the affidavit itself contains no identifying marks as to how it got to her office, it was her office practice to maintain notes in her files and upon reference to such notes she testified that she received the affidavit on January 5, 1950, along with other documents at her Cincinnati office from Frigidaire Local 801 of the United Electrical Radio & Machine Workers of America, of Dayton, Ohio. On the same day, she determined that the proposed filings were not complete so she requested Mr. Lem Markland, president of the Local Union, by letter, to submit additional documents. Compliance with this request was received on January 12, 1950. One of the requested documents was not in order, so, she again wrote to Markland and received the corrected document on January 17, 1950. On the latter date, she notified Markland by mail that the Union was in full compliance with the requirements of the National Labor Relations Act, as amended, under §§ 9(f, g) and (h), and, on the same day, sent the documents to Washington for permanent filing. Her notes indicated that she requested the Constitution and D. L. (Department of Labor letter) on January 5. She testified further that had the documents been delivered personally, she would have asked for the missing documents orally. Her notes also indicate that the correspondence should be sent to Mr. Markland. The Cincinnati office receipt stamp was not on the original affidavit and she had nothing to do with the date that was upon the photostatic copy thereof in evidence.

Had the record shown nothing more, we should be obliged to reverse. We do not agree with the government's contention that because the affidavit appears regular upon its face and was found in the files of the Labor Board that that would sustain the jury's verdict, nor do we agree with its contention that the gist of the crime is the making of the false statement, if there is no proof that the affidavit had been delivered to the Board and placed on file. Until it is filed, the Board is not empowered to deal with it or to act in the light of it and it is not yet a matter which comes within its jurisdiction. United States v. Valenti, 3 Cir., 207 F.2d 242, 244; Reass v. United States, 4 Cir., 99 F.2d 752; United States v. Borow, D.C.N.J., 101 F. Supp. 211. Moreover, in the absence of further proofs, there would have been nothing to show that the appellant signed and swore to the affidavit, filed, or caused it to be filed. The mere fact that an affidavit is found in the files of an agency of the United States is not enough, for the government still has the burden of proving that the appellant had filed or caused it to be filed with the Board.

But the fact that the affidavit was found in the files of the Labor Board, without any notation thereon indicating by whom it was filed, does not stand alone in the record. Two witnesses, Dunham and Strunk, while ostensibly members of the Communist Party, were giving information to the Federal Bureau of Investigation, with respect to Communist meetings and activities. Dunham testified as to a meeting that took place at the appellant's home in January or February of 1950, at which the appellant and his wife, Dunham and Joe Brant were present. Brant was the labor organizer for the Communist Party for the State of Ohio. There, Brant said to the appellant: "Since you signed this affidavit, the Taft-Hartley affidavit, read the Worker, the literature; don't pay any dues but contribute, support the Party and don't attend any closed meetings." The appellant replied, saying he would go along with that. Dunham and the appellant were both employees at the Frigidaire plant, in Dayton. Strunk had joined the Communist Party in 1944, became Financial Secretary of the Dayton branch, held that office from 1945 till the latter part of 1952 and attended Executive Board Meetings. He attended a meeting at the appellant's home on December 3, 1949. The appellant and his wife and Martin Chancy were present. Chancy was State Chairman of the Communist Party in Ohio. Strunk testified that Chancy said the following at that meeting: "Five communist members would have to sign the Taft-Hartley affidavit, and the same five should not attend any meetings after he had signed it, not pay any dues; just donate every month so much money. He should meet as an individual group which would be called the Taft-Hartley group." Strunk also testified that during 1950 the Taft-Hartley group was added to three other groups already in existence; that at a registration meeting at appellant's home, in 1950, the appellant was reregistered and assigned to the Taft-Hartley group; that this group consisted of four other party members who had signed Taft-Hartley affidavits. The group included Markland, the president of the Local, with whom Miss Bantel had had her correspondence. Neither Dunham's nor Strunk's evidence was traversed nor successfully shaken by cross-examination. Circumstantial evidence from which reasonable inferences may be drawn will sustain a verdict. American Bureau of Shipping v. Allied Oil Co., 6 Cir., 64 F.2d 509; Stumbo v. United States, supra. We think the record presents circumstances which...