May v. United States

• Decision Date: 11 July 1960
• Docket Number: No. 13906.,13906.
• Parties: Al MAY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

280 F.2d 555 (1960)

Al MAY, Appellant, v. UNITED STATES of America, Appellee.

No. 13906.

United States Court of Appeals Sixth Circuit.

July 11, 1960.

Louis Lusky, Louisville, Ky. (Marvin H. Morse, and Herbert L. Segal, Louisville, Ky., on the brief), for appellant.

Robert D. Simmons, Asst. U. S. Atty., Louisville, Ky. (Wm. B. Jones, U. S. Atty., and Charles E. Peyton, Asst. U. S. Atty., Louisville, Ky., on the brief), for appellee.

Before MILLER, WEICK and O'SULLIVAN,^* Circuit Judges.

O'SULLIVAN, Circuit Judge.

Appellant Al May appeals from his conviction of perjury (Sec. 1621, Title 18 U.S.C.). The perjury charged arose from his testimony at a hearing before a National Labor Relations Board trial examiner. May was an organizer for the United Hatters, Cap and Millinery Workers International Union, AFL-CIO. For some time prior to December 20, 1957, the mentioned Union had been attempting to organize the employees of the Louisville Cap Company, and had established a picket line at the plant of that company. On December 20, 1957, while these efforts were continuing, upon petition of the employer, a representative election was held. The result of the vote was 150 for no Union and 4 in favor of the Union in question. Notwithstanding the election result, the Union continued its picket line, resulting in a complaint being filed by the NLRB charging that, by maintaining the picket line and other activities, the Union was guilty of unfair labor practices, within the meaning of Sec. 8(b) (1) (A) of the National Labor Relations Act, 29 U.S.C.A. § 158(b) (1) (A). Among other charges set forth in the complaint issued by the NLRB, was that since December 20, 1957, the date of the election, the Union had picketed the plant of said company, "for the purpose of forcing the Charging Parties (the company) to recognize and bargain with it as the exclusive representative of the Charging Parties' employees." This averment, as well as other averments of the complaint, was denied by defendant Union. Hearings on the NLRB complaint were had before a trial examiner in August and September, 1958. Prior to the time of these hearings, the NLRB had handed down its decision in the case of N. L. R. B. v. Drivers, Chauffeurs and Helpers Local 639, etc., AFL-CIO, and Curtis Brothers, Inc., 119 NLRB 232 (referred to herein as the Curtis case). That decision had held that it was an unfair labor practice for a Union that had lost an election to continue maintaining a picket line for "recognitional purposes". The construction placed upon the Curtis decision by the Union as of the time of the hearing before the trial examiner in the Louisville Cap Company case, is stated in appellant's brief as follows:

"For present purposes, it is sufficient to say that the NLRB there held that a union which has lost a collective bargaining election is thereby barred from all picketing (at least until another election can take place a year later) unless it also engages in additional efforts to organize the plant by such methods as handbill distribution and personal solicitation of employees."

In its defense to the NLRB charges in the Louisville Cap case, the Union asserted and offered evidence to show that it was, at the same time it was maintaining a picket line, engaging in other organizational efforts. Appellant's brief states this as follows, "the Union (while not conceding the validity of the Curtis rule) offered evidence to show that it had, in fact, engaged in such additional organizational efforts." The perjury charge against appellant May consisted of his testimony before the examiner that while the Union was maintaining a picket line after the election, he, as organizer for the Union, was carrying on solicitation of various employees of the Louisville Cap Company in an effort to get them to join the Union. He swore that he had visited some nine women employees of the company as a part of this effort, and gave their names and addresses.

The indictment charged that his testimony in this regard was false. Eight of the nine women named by appellant were produced as witnesses for the government on the perjury trial, and each testified that appellant had never visited her as he had testified. The individual claims of four of these witnesses that appellant had not visited them were, to some extent, corroborated by evidence referred to later in this opinion.

The examiner's Intermediate Report and Recommended Order entered December 12, 1958, found the Union guilty of unfair labor practices because of its continued picketing after losing the election (finding that the picketing was for recognitional purposes) and because of other conduct of the Union and its members, not necessary here to detail. On March 16, 1959, the indictment charging appellant with perjury was returned. A jury trial was had on March 30 and 31, 1959, and defendant was convicted.

On November 26, 1958, the United States Court of Appeals for the District of Columbia reversed and set aside the order of the NLRB in the Curtis case (Drivers, Chauffeurs and Helpers Local Union No. 639, etc. v. N. L. R. B., 107 U.S.App.D.C. 42, 274 F.2d 551) holding that Sec. 8(b) (1) (A) of the National Labor Relations Act did not proscribe peaceful picketing, "whether organizational or recognitional". On April 2, 1959, the NLRB adopted and approved the trial examiner's report and order in the Louisville Cap Company case (123 NLRB Reports, No. 74) refusing to acquiesce in the aforesaid decision of the District of Columbia Court of Appeals in the Curtis case. The NLRB decision in the Louisville Cap case is now pending on appeal in the District of Columbia Court of Appeals. On March 28, 1960, the Supreme Court affirmed the decision of the District of Columbia Court of Appeals in the Curtis case, N. L. R. B. v. Drivers, Chauffeurs, Helpers Local, etc., 362 U.S. 274, 80 S.Ct. 706, 4 L.Ed.2d 710.

This appeal, in the main, presents for consideration application of the rule that perjury must be established by two witnesses, or by one with corroboration, and the rule that false testimony, to amount to perjury, must have been material to the issues involved in the hearing at which it was given.

Appellant assigns numerous grounds for reversal, three of which we will initially discuss. He contends:

a) That his motion for directed verdict of acquittal should have been granted because, he claims, there was not quantitatively sufficient evidence by two witnesses, or by one witness with corroboration, of his claimed false swearing.

b) That the court erred in refusing to instruct the jury that the mentioned rule was to be applied separately to each factual component of the alleged false testimony, e. g.,

"That is to say, for example, that if the only evidence of the falsity of some particular statement is the testimony of a single witness, you must find that said statement has not been proved to be false even though one or more other witnesses may have testified to the falsity of other statements alleged to have been made by defendant under oath."

c) That the testimony of defendant, given at the NLRB hearing, even if false, was not material. This is so, he says, because the Court of Appeals and the Supreme Court have now decided, in the Curtis case, that, at the time of the events here involved, peaceful picketing "for recognitional purposes" was not illegal — therefore, the Union's attempt to establish that its picketing of the Louisville Cap Company was part of an organizational effort was unnecessary to its defense and appellant May's testimony given in support of that defense was immaterial.

a) The two-witness rule:

The rule which bars a conviction of perjury on the uncorroborated testimony of a single witness, notwithstanding criticism of it, remains applicable to trials in Federal Courts. Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 550, 89 L.Ed. 495. We hold, however, that defendant in this case was not deprived of its protection. His perjury, if any, consisted of testimony given on one occasion in connection with one hearing, and upon a single issue involved in that hearing. On his oath, he said that he had visited some nine different women as part of his organizational effort on behalf of his Union. He contends that the testimony of eight of these women, each of whom asserted that he testified falsely when he said he had visited her, does not satisfy the requirements of the rule. No one of the eight directly corroborated the testimony of any other that she, the other, was not visited by May. Therefore, there was only one direct witness to the falsity of each component of his allegedly false testimony, taken in isolation from the whole. To hold, however, that the standard of proof required to establish perjury must be met as to each separated fragment of testimony given in response to an inquiry upon a single subject would be an unwarranted extension of the rule. The issue on appellant's trial was whether, when testifying before the trial examiner, he gave false testimony as to the extent and character of his organizational activity. Eight witnesses said that he did. We think the requirement of the rule was satisfied. The reason for the rule is stated in Weiler v. United States, supra, as follows:

"Since equally honest witnesses may well have differing recollections of the same event, we cannot reject as wholly unreasonable the notion that a conviction for perjury ought not to rest entirely upon `an oath against an oath\'".

In the case at Bar, the government's charge that the defendant committed perjury was not limited in its evidentiary support to, "an oath against an oath," but was supported by eight oaths against the one taken by May when sworn as a witness at the NLRB hearing.

The rationale of the two-witness rule was stated by the Delaware Supreme Court in the case of Marvel v. State, 3 W.W.Harr. 110, 131 A. 317, 318, 42 A.L. R. 1058, as follows:

"Almost every case upholding the rule

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