Sells v. United States

• Decision Date: 14 January 1959
• Docket Number: No. 5992.,5992.
• Citation: 262 F.2d 815
• Parties: Newell Chilton SELLS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

262 F.2d 815 (1958)

Newell Chilton SELLS, Appellant, v. UNITED STATES of America, Appellee.

No. 5992.

United States Court of Appeals Tenth Circuit.

December 30, 1958.

Rehearing Denied January 14, 1959.

COPYRIGHT MATERIAL OMITTED

Eugene Deikman, Denver, Colo., for appellant.

Anthony A. Ambrosio, Atty., Dept. of Justice, Brooklyn, N. Y. (Donald E. Kelley, U. S. Atty. for Dist. of Colorado, Denver, Colo., Bruno A. Ristau, Washington, D. C., and Paul C. Vincent, Attys., Dept. of Justice, New York City, were with him on the brief), for appellee.

Before BRATTON, Chief Judge, and PICKETT and BREITENSTEIN, Circuit Judges.

BREITENSTEIN, Circuit Judge.

Sells was charged with making and using a false "Affidavit of Noncommunist Union Officer" in violation of the false statement statute.¹ The jury found him guilty under each of the two counts of the indictment and he was sentenced to a term of two years' imprisonment under each count, the sentences to run concurrently. Also, he was adjudged guilty of contempt of court for failure to answer certain questions when he testified in his own behalf and for this offense he was sentenced to thirty days. The contempt sentence was to run consecutively with the indictment sentences. He appeals form each conviction.

Section 9(h) of the National Labor Relations Act, as amended,² provides that the National Labor Relations Board³ shall make no investigation and issue no complaint on behalf of a union unless there is on file with the Board an affidavit of each officer of the union and of any national or international labor organization of which the union is an affiliate that he is not a member of or affiliated with the Communist Party. It is further provided that "The provisions of section 35A of the Criminal Code shall be applicable in respect to such affidavits." Under the 1948 revision of the Criminal Code, the applicable provision of former § 35A is now found in 18 U.S.C. § 1001.⁴ The only sanction contained in § 9(h) is that of prosecution for making a false statement.⁵

Each count of the indictment concerns an affidavit made, used and filed with the Board at its Denver, Colorado, office on or about August 12, 1952. The false statement alleged in the first count is that he, Sells, was not a member of the Communist Party, and in the second count it is that he was not affiliated with the Communist Party whereas in each instance the facts were to the contrary. Thus each count accuses Sells of a different false statement but both statements were made in the same affidavit.

Many of the facts upon which the government relies are not contradicted. Sells admittedly joined the Communist Party in Texas during the year 1948 and was active in Party meetings and enterprises in that state until he moved to Colorado in 1950. His participation in Party affairs continued and at least until about May, 1952, he attended local, organizational and educational meetings of the Communist Party and was a delegate to its 1950 Colorado state convention. He was chairman of the student group of the Communist Party in Boulder. At the request of the Party he sought industrial employment so that he could become active in labor unions but had difficulty in securing such employment because of his physical condition. In the early part of 1952 he started working for an air cleaner service company in Denver and became a member of Amalgamated Local No. 186, UAW-CIO, an affiliate of the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America. Soon he became a steward of this unit and served in various capacities as a representative of the union. Sometime in the spring of 1952 he was elected recording secretary of the local union but he did not take office until the union meeting held on the first Thursday of August, 1952.

Sells received from the president of the local union NLRB form 1081, "Affidavit of Noncommunist Union Officer," signed it before a notary public on June 3, 1952, and returned it to the union president who filed it with the Denver Board office.⁶ In two statements given by Sells to agents of the Federal Bureau of Investigation he related, in substance, that after he was aware of his possible election to union office he discussed the matter with Denver members of the Communist Party and it was agreed by him and them that he should take the office, should discontinue open Communist Party activities, and should keep in touch with the Party through an arranged contact. In his testimony at the trial Sells asserted that he left the Party prior to his election to union office and remained out of the Party until after he resigned that union office about December, 1953. He thereafter continued his active participation in Communist Party matters until he left the Party in 1955. Since then he has not been a member or an affiliate.

Asserting that the evidence was insufficient to sustain the verdict, counsel for Sells first urges that the materiality of the false statements was not established because there was no substantial evidence that Sells was a union officer and because it was not shown that the union was in compliance with the act or availed itself of the facilities of the Board. While the government contends that the allegation of materiality is surplusage,⁷ we deem it unnecessary to determine the point and merely note that there is a conflict in the decisions.⁸ In the instant case the record establishes materiality.

The status of Sells as a union officer is clear. In his affidavit Sells swore that he was "a responsible officer of the union." As said in Hupman v. United States, 6 Cir., 219 F.2d 243, 249, certiorari denied 349 U.S. 953, 75 S.Ct. 882, 99 L.Ed. 1278, "he can not now complain, if the jury took him at his word." If the test of identification of the office in the constitution of the union, as adopted by the Board and approved in National Labor Relations Board v. Coca-Cola Bottling Co., 350 U.S. 264, 269, 76 S.Ct. 383, 100 L.Ed. 285, is applied, the necessary proof is supplied by the "Certificate of Union Officers" signed by the union president, filed with the Board, and received in evidence. The instructions on the reverse of this form direct the insertion in the space provided of "the exact title of each officer listed in your constitution and bylaws." The form as filed names the office of "Recording Sec'ty." Sells admittedly assumed that office and performed its duties. While the date of taking office is not entirely clear from the evidence, in no event was it later than the first Thursday in August, 1952, and hence preceded the August 12, 1952, filing of Sells' affidavit with the Board.

Compliance by the union with the act is urged as a prerequisite to materiality. Proof of such status is said to require evidence that the local and its parent organization have made the filings required by § 9(f), (g), and (h). If this is necessary, the requirement was satisfied by the testimony of the officer in charge of the Denver office of the Board who, after the filing of the Sells affidavit and the aforementioned Certificate of Union Officers, wrote the local union that it would be considered in compliance until December 31, 1952, provided there were no intervening changes in officers and provided the parent union was in continuous compliance. No independent showing of the filings required by § 9(f) and (g) was necessary. The officer testified that the usual proof of such filings with the Secretary of Labor had been made and there was no evidence to the contrary.

Materiality is not dependent upon the use of the Board facilities by the union. The test is not use but right to use. The filing of the noncommunist affidavits is "the key that makes available to the union the benefits of the Act."⁹ These benefits are of the utmost importance to labor unions.¹⁰ The attainment of the right to these benefits by a false statement establishes beyond question the materiality of that false statement.

The sufficiency of the evidence is attacked on the ground that there was no substantial evidence of membership in or affiliation with the Communist Party on the critical date. This point was resolved against the defendant by the jury and its verdict must be sustained if, taking the view most favorable to the government, there is substantial evidence to support it.¹¹ Admittedly Sells was an active member of the Communist Party before taking union office and after leaving that office. However, he testified that he was neither a member nor an affiliate while he was a union officer.

Sells gave two written statements to agents of the Federal Bureau of Investigation.¹² In these Sells related the arrangements which he made with his Communist Party associates prior to his election to union office and his participation in Communist Party activities while he held such office.¹³

Two government witnesses, Duran and Fortson, joined the Communist Party at the behest of, and gave information to, the Federal Bureau of Investigation. In substance, their testimony established that Sells was a devoted and dedicated member of the Communist Party during the period when they knew him. Duran's testimony as to Sells' Communist activities covered the period from November, 1950, to July 27, 1952, and Fortson's testimony the period from December, 1950, to December, 1951. While Sells vigorously denied the statements of Duran that he, Sells, attended a secret meeting of Communist Party leaders near Sedalia, Colorado, on July 27, 1952, this merely raised a question of credibility to be resolved by the jury.¹⁴

Invoking the familiar rule that a conviction cannot be had when the corpus delicti of an offense is proved solely by the unsupported extrajudicial statements of the accused,¹⁵ counsel urges that this prosecution must fail because the only proof of the corpus delicti is that contained in the defendant's extrajudicial statements. As there was independent proof of the making and using of...