Killian v. United States, 7

• Citation: 368 U.S. 231,82 S.Ct. 302,7 L.Ed.2d 256
• Decision Date: 11 December 1961
• Docket Number: No. 7,7
• Parties: John Joseph KILLIAN, Petitioner, v. UNITED STATES
• Court: United States Supreme Court

368 U.S. 231

82 S.Ct. 302

7 L.Ed.2d 256

John Joseph KILLIAN, Petitioner,

v UNITED STATES.

No. 7.

Argued Oct. 10, 1961.

Decided Dec. 11, 1961.

Rehearing Denied Jan. 22, 1962.

See 368 U.S. 979, 82 S.Ct. 476.

[Syllabus from pages 231-233 intentionally omitted] David B. Rothstein, Chicago, Ill., and Basil R. Pollitt, Brooklyn, N.Y., for petitioner.

Kevin T. Maroney, Washington, D.C., for respondent.

Mr. Justice WHITTAKER delivered the opinion of the Court.

For the purpose of enabling a labor union of which he was then an officer to comply with § 9(h) of the National Labor Relations Act, as amended 29 U.S.C. § 159(h), 29 U.S.C.A. § 159(h), and hence to use the processes of the National Labor Relations Board,¹ petitioner made on December 9, and caused to be filed with the Board on December 11, 1952, an affidavit reciting, inter alia, 'I am not a member of the Communist Party or affiliated with such Party.' Upon receipt of that affidavit and like ones of all other officers of the union, the Board advised the union that it had complied with § 9(h) and could make use of the Board's processes.

In November 1955, an indictment in two counts was returned against petitioner in the United States District Court for the Northern District of Illinois. The first count charged that, in violation of 18 U.S.C. § 1001, 18 U.S.C.A. § 1001, ² petitioner had falsely sworn, in the affidavit, that he was not a member of the Communist Party, and the second charged that, in violation of the same statute, he had also falsely sworn in that affidavit that he was not affiliated with the Communist Party. A jury trial was had which resulted in a verdict of guilty on both counts, and the court sentenced petitioner to imprisonment. On appeal, the United States Court of Appeals for the Seventh Circuit originally affirmed, but, before the motion for rehearing was ruled, this Court's decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, came down, and, on the authority of that case, the court granted the motion for rehearing, reversed the judgment and remanded the case for a new trial. United States v. Killian, 7 Cir., 246 F.2d 77, 82. A new trial was had. It also resulted in a verdict of guilty on both counts, and petitioner was sentenced to imprisonment for five years on Count I, and for three years on Count II, the sentences to run concurrently. On appeal, the United States Court of Appeals for the Seventh Circuit affirmed, United States v. Killian, 275 F.2d 561, and we granted certiorari limited to two questions, namely, (1) whether production of statements submitted by Government informer witnesses for their expenses, and the receipts executed by them for the payments, is required by 18 U.S.C. § 3500, 18 U.S.C.A. § 3500 when the Government offers at the trial to produce a list of the dates and amounts of the payments, and (2) whether the instructions to the jury properly defined membership in and affiliation with the Communist Party. 365 U.S. 810, 81 S.Ct. 688, 5 L.Ed.2d 690.

The Government introduced evidence tending to show that petitioner was a member and active in the affairs of the Communist Party from 1949 through August 1953, but, inasmuch as there is not before us any question concerning the sufficiency of the evidence to make a submissible case for the jury, it is not necessary to review the evidence in detail.

I. The Document Production Questions.

Intelligent understanding of the document production questions presented requires a brief statement of their basis. They arose in connection with the testimony of Government witnesses Sullivan and Ondrejka.

On direct examination, Sullivan testified that he joined the Communist Party in 1948 at the request of the Federal Bureau of Investigation, and in October 1949 transferred his membership from Cincinnati, Ohio, to Madison, Wisconsin, where, by secret means, he made contact with local leaders of the Communist Party and became active in its affairs. In those activities, he met petitioner in December 1949. Petitioner was then the section organizer for the Party in Madison. Thereafter, Sullivan attended a number of secret Communist Party group meetings in Madison in 1949 and 1950 at which petitioner was present and acted as the spokesman and leader. Sullivan testified that he gave written reports to the F.B.I. respecting Party meetings and activities soon after they occurred.

At the close of Sullivan's direct testimony, petitioner moved for production, for use in cross-examination, of all statements given by the witness to the F.B.I. relating to his direct testimony. The narrative statements were produced to the judge, in camera, who, after excising the parts that did not relate to the witness' direct testimony, handed them to petitioner's counsel. On cross-examination, Sullivan testified that he was paid stipulated monthly amounts for his services, and was reimbursed for his expenses incurred in Communist Party activities, by the F.B.I., and that when he received the money he signed a receipt for it. His connection with the F.B.I. terminated in 1952.

After completing the cross-examination of the witness, petitioner again moved for production of all statements made by the witness to the F.B.I., without excision. The Government objected to the motion on the grounds that it had produced all of the witness' statements that related to his direct testimony, and that there was no showing that the witness had given any other statements to the Government that related to his direct testimony. Thereupon, the court denied petitioner's motion. Petitioner then moved to strike the testimony of the witness, and that motion, too, was denied.

On direct examination, Ondrejka testified that he joined the Communist Party at the request of the F.B.I. in October 1949 and remained a member of the Party until November 1953. He met petitioner at a Communist Party meeting in Milwaukee, Wisconsin, in January 1951, and thereafter attended many secret Communist Party meetings in Milwaukee where petitioner was present and active, and also participated with petitioner in numerous Party activities, until August 1953, and knew petitioner to be a member of the Communist Party throughout that period. Ondrejka testified that he gave written reports to the F.B.I. respecting Party meetings and activities soon after they occurred.

At the conclusion of Ondrejka's direct testimony, petitioner moved for production, for use in cross-examination, of all statements given by the witness to the F.B.I. The court ordered to Government to produce to the judge in camera, 'all statements that in any way affect the direct examination of the witness.' Accordingly, all of the narrative statements given by the witness to the Government relating to his direct testimony were produced to the judge, who, after excising such parts as did not relate to the witness' direct testimony, delivered them to petitioner's counsel. Petitioner then moved for production of all statements relating to the testimony of the witness, without excision. That motion was denied.

On cross-examination, Ondrejka testified that he was paid stipulated monthly amounts in cash for his services by the F.B.I., and, in addition, was reimbursed by the F.B.I. for his expenses, such as Communist Party dues, literature, contributions and travel, which he orally reported to an F.B.I. agent, who made notes thereof and later reimbursed him in cash. The court sustained the Government's objection to a question asking whether Ondrejka signed receipts for the moneys paid to him in reimbursement for his expenses.

Petitioner then moved for production of all statements given by the witness to the F.B.I., whether written by the witness or by an F.B.I. agent as the result of interviews with the witness, which related to the witness' testimony on cross-examination, including particularly reports by the witness of his reimbursable expenses and the receipts which he signed evidencing reimbursement for those expenses. The Government opposed production of the documents on the ground that they did not relate to the direct testimony of the witness. It further objected to producing Ondrejka's reports of expenses, and the receipts he had signed when reimbursed for those expenses, on the grounds that they were administrative records of the F.B.I. and were immaterial and irrelevant, but the Government offered to produce a list showing the dates and amounts of the payments and whether they were for services or expenses. Petitioner refused to receive that proffered list. Thereupon, the court denied the motion. Petitioner then moved to strike all of Ondrejka's testimony, and that motion, too, was denied.

Petitioner contends that his general demands for 'all statements,' as well as his specific demand for the reports and receipts made by Ondrejka, encompassed, and the trial court erred to his prejudice in denying his motion to require the Government to produce, (1) the notes made by the F.B.I. agents covering Ondrejka's oral reports of expenses and (2) the receipts signed by Sullivan and Ondrejka for moneys paid to them in reimbursement for expenses. He supports these contentions with an elaborate argument which we need not delineate because the Solicitor General now concedes that the F.B.I. notes of Ondrejka's oral reports may have been 'statements' within the meaning of 18 U.S.C. § 3500(e)(2), 18 U.S.C.A. § 3500(e)(2),³ and he flatly concedes that the receipts signed by Sullivan and Ondrejka were 'statements' within the meaning of § 3500.

However, the Solicitor General contends that on the actual facts—many of which are not incorporated in the record before us petitioner is not entitled to, and that we should not on this incomplete and imperfect record order, a new trial, because the true facts are that the F.B.I. agents' notes covering Ondrejka's oral reports of expenses were not in existence at the time of the trial, and the receipts signed by Sullivan and...