De Rosier v. United States, 14839.

• Decision Date: 18 February 1955
• Docket Number: No. 14839.,14839.
• Citation: 218 F.2d 420
• Parties: Harvey George DE ROSIER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

218 F.2d 420 (1955)

Harvey George DE ROSIER, Appellant, v. UNITED STATES of America, Appellee.

No. 14839.

United States Court of Appeals, Fifth Circuit.

January 18, 1955.

Rehearing Denied February 18, 1955.

Herbert A. Warren, Jr., and Hilton R. Carr, Jr., Miami, Fla., for appellant.

L. E. Broome, Atty., Dept. of Justice, Washington, D. C., James L. Guilmartin, U. S. Atty., Miami, Fla., for appellee.

Before HOLMES, BORAH, and RUSSELL, Circuit Judges.

HOLMES, Circuit Judge.

Appellant was convicted on both counts of a two-count indictment charging violations of Section 1001 of Title 18, U.S.Code. This appeal challenges the jurisdiction and the venue of the court below, the sufficiency of the indictment to charge an offense, the substantiality of the evidence to support the verdict, and the correctness of the instructions under which the case was submitted to the jury.

The evidence shows that the Post Office Department Loyalty Board, acting on information to the effect that appellant was, or had recently been, a member of the J. B. Gordon Klavern of the Ku Klux Klan, issued to appellant, an employee of the Post Office Department, a "Notice of Proposed Removal Action," telling him that, because of his membership in and activity on behalf of the Klan organization, it had reasonable doubt as to his loyalty to the Government of the United States. He was advised of his right to answer the charges in writing within thirty days and to apply for an oral hearing at which he could be represented by counsel.

In response to this notice, appellant wrote a letter addressed to the Chairman of the Loyalty Board at Washington, D. C., in which he made certain false statements concerning his membership in the Ku Klux Klan. The letter was sworn to and signed in the presence of a notary public in the City of Hialeah, Florida, on August 18, 1951, and was sent from Florida to the Loyalty Board in Washington, D. C., where it was received two days later. To the letter was attached a copy of a letter purporting to have been written on May 1, 1950, and addressed to the Secretary of Sports, Inc., evidencing appellant's claim that he resigned from the Ku Klux Klan. Actually, this document was not what it purported to be, but was in fact a false writing or document fabricated by appellant to support his contention that he resigned from the Ku Klux Klan as soon as he realized that Sports, Inc., was merely a front for that organization.

The evidence shows further that appellant joined the J. B. Gordon Klavern of the Ku Klux Klan in April, 1950, and remained a member of that organization at least until January, 1951. At the time appellant joined the Klavern, it was affiliated with the Association of Georgia Klans. This affiliation continued for a period of about four months after appellant became a member. The Ku Klux Klan and the Association of Georgia Klans are both contained in the Attorney General's list of subversive organizations.

The only substantial question presented is the one relating to the venue of the court being laid in the Southern District of Florida. The other issues, for the most part, are foreclosed by the record, the oral and documentary evidence, and the verdict of the jury. We have no doubt that the indictment was sufficient to charge offenses prohibited by the statute, and that the facts alleged therein were sufficient to advise appellant of the materiality of the false statements and the false document which he was accused of making and uttering. Neither are we in doubt as to the jurisdiction of the Loyalty Board to inquire into the past membership of appellant in an organization which, to say the least, was affiliated with a subversive organization named on the Attorney General's list at the time appellant became a member and for several months thereafter. Among the activities and associations of an employee which may be considered in connection with the determination of disloyalty may be one or more of the following:

"(vi) Membership in affiliation with or sympathetic association with any foreign or domestic organization * * * designated by the attorney general as * * having adopted a policy of advocating or approving the commission of acts of force or violence to deny other persons their rights under the Constitution of the United States." 5 C.F.R. (1949 Edition), Section 220.2 (2).

The venue and jurisdictional questions are raised in two ways: First, appellant contends that no offense was committed until his letter was received by the Loyalty Board in Washington, D. C.; therefore, no offense triable in the Southern District of Florida has been charged or proven. Second, he contends that, even if proof that he prepared the letter in the Southern District of Florida and forwarded it from there would support venue and jurisdiction, the evidence is insufficient to show that he did actually forward the letter from that District. In answer to the first of these propositions, the Government relies upon 18 U.S.C. § 3237, which provides that any offense against the United States begun in one district and completed in another, or...