Travis v. United States

• Decision Date: 27 August 1957
• Docket Number: No. 5379.,5379.
• Citation: 247 F.2d 130
• Parties: Maurice E. TRAVIS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

247 F.2d 130 (1957)

Maurice E. TRAVIS, Appellant, v. UNITED STATES of America, Appellee.

No. 5379.

United States Court of Appeals Tenth Circuit.

July 15, 1957.

Rehearing Denied August 27, 1957.

Nathan Witt, New York City (Montfort, Wilson & Deikman, Eugene Deikman and Charles D. Montfort, Denver, Colo., were with him on the brief), for appellant.

Thomas Mitchell and Donald E. Kelley, U. S. Atty., Denver, Colo. (Harold D. Koffsky, Carl G. Coben and Cyril S. Wofsy, Attys., Dept. of Justice, Washington, D. C., were with them on the brief), for appellee.

Before PHILLIPS, MURRAH and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

The defendant was indicted in the United States District Court for the District of Colorado upon six counts alleging violation of the false statement statute, 18 U.S.C. § 1001.¹ The Government dismissed two counts before trial and defendant was found guilty upon each of the remaining counts. The basis of defendant's conviction lies in the falsity of two "Affidavits of Non-Communist Union Officer" in which he swore he was "not a member of the Communist Party or affiliated with such party." Each of the affidavits were executed by defendant in Denver, Colorado, and mailed from Denver to the National Labor Relations Board in Washington, D. C., where they were received and filed pursuant to 29 U.S.C.A. § 159(h).² Defendant was an officer of the International Union of Mine, Mill and Smelter Workers and it is agreed that the making and filing of the affidavits is a matter within the jurisdiction of an agency of the United States and that during the life of the affidavits Mine-Mill was in compliance with sections 9(f), (g) and (h) of the Labor Management Relations Act of 1947 and used the facilities of the N.L. R.B.

Upon conviction defendant was sentenced to imprisonment for four years on each of two counts, to run concurrently, and for four years on each of the other counts, to run concurrently, a total of eight years. Fines totalling $8,000 were also imposed.

Defendant on appeal does not challenge the sufficiency of the evidence to support conviction but seeks reversal upon claim of lack of jurisdiction in the Colorado court and numerous assertions of errors occurring during trial.

Since we conclude that a new trial must be granted we limit our consideration to matters requiring reversal and those contentions of appellant which will necessarily recur on retrial.

Travis did not testify at the trial and as a consequence his contemporary credibility was not at issue. He did, however, call as character witnesses four persons each of whom stated that Travis's general reputation for truth and veracity was good. Upon cross examination, over objection, the trial court allowed the credibility of the character witnesses to be tested by inquiry as to whether or not the witnesses had heard: (1) that Travis had been convicted of criminal contempt of court in Grant County, New Mexico, and (2) that when Travis had been asked before the McCarren Committee of the United States Senate in Salt Lake City in October, 1952, if he was at that time a member of the Communist Party, he had refused to answer on the ground that it would incriminate him.

Before overruling objection to the questions the trial court very properly made inquiry as to the factual background of the assumptions contained in the questions. Both occurrences were admitted by Travis to be actualities, the criminal contempt conviction arising as a result of a labor dispute.

In Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 220, 93 L.Ed. 168, it is said, "The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him." In attempting to prove a good reputation for truth and veracity Travis placed in issue those characteristics determinative of his capability of the commission of the crime charged — false swearing in a labor matter. Since lack of veracity is the very essence of the indictment of Travis an attempt by him to negative the existence in him of those traits existent in one guilty of such an offense places in issue all characteristics affecting reputation which explore the crime itself and the ability of the accused to commit the crime. So viewed, inquiry from the witness as to his knowledge of Travis's conviction for criminal contempt is relevant and as Michelson holds, inquiry is proper although "the crimes may be unalike, but both alike proceed from the same defects of character which the witnesses said this defendant was reputed not to exhibit." Those defects of character which would lead one to disregard the lawful order of the court in a labor dispute may well be the same defects which might lead one to falsely swear to the affidavits upon which the instant prosecution is based. See Hawley v. United States, 10 Cir., 133 F. 2d 966.

But the reasoning of Michelson clearly negatives the relevancy of examination relative to Travis's claim of constitutional privilege before the McCarren Committee. One who claims the rights and privileges of the Constitution most certainly does not exhibit a character defect of any kind and, if one who lawfully asserts the shelter of the Fifth Amendment becomes, in so doing, a person of guilt or a perjurer in the minds of some, the shame lies with those who misunderstand and not with him who is entitled to protection. Cross examination probing the witnesses' knowledge of Travis's claim of constitutional immunity during the McCarren hearing had, we believe, no proper probative value but if such existed it was, as stated by Mr. Justice Harlan in Grunewald v. United States, 77 S.Ct. 963, 982, "far outweighed by its possible impermissible impact on the jury," had "grave constitutional overtones," and was fraught with "the danger that the jury made impermissible use of the testimony by implicitly equating the plea of the Fifth Amendment with guilt * * *." The admission of this evidence necessitates a new trial. Grunewald v. United States, supra; Curcio v. United States, 77 S.Ct. 1145.

But appellant insists that the action should be dismissed in its entirety for lack of venue jurisdiction in Colorado. As noted, it is unquestioned that Travis executed and mailed the affidavits at Denver, Colorado. It is appellant's view that his "making and using" the false document was completed in Colorado, prior to the time when such activities became "a matter within the jurisdiction of any department or agency of the United States" and hence a federal crime. For this reason, he maintains that 18 U.S.C. § 3237, known as the continuing offense statute, which provides that any offense against the United States begun in one district and completed in another, or committed in more than one district, may be prosecuted in any district in which the offense was begun, continued, or completed, does not apply. He neglects, however, to point out any possible use to which such a false affidavit might be put other than as a filing with the N.L.R.B. in Washington, which was his intent and his consummated purpose.

In the case of United States v. Valenti, 3 Cir., 207 F.2d 242, the Third Circuit held that the act denounced by Section 1001 is the filing of a false noncommunist affidavit with the Board and that no crime is committed until the affidavit, through its filing, has become the basis for action by the Board. Also, although the concurring opinion suggests that the case is based upon a failure of proof of mailing, the majority clearly holds that constructive filing by deposit in the mails is not sufficient to lay venue at the place of deposit. The court's rejection of the government's contention that the continuing offense statute should apply claims support in language of United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897. In the Lombardo case, the crime committed was a failure to file a required statement with a government agency and the Supreme Court understandably held that the accused could not be prosecuted at the place of his residence on the theory that the failure to deposit the statement in the mail is the beginning of a continuing offense. The distinction between a situation where the accused fails to file and one where he makes a false affidavit with the intent to file it with the Board and entrusts it to an irrevocable agency for that purpose is clear.

While we recognize the important issues of public policy involved in the setting of venue and the necessity of maintaining a taut rein against possible abuses by the prosecution and hardship to the defendant in a trial far from his abode, United States v. Johnson, 323 U.S. 273, 65 S.Ct. 249, 89 L.Ed. 236, it appears that such considerations are not present here and that this...