United States v. Killian, 12407.

• Decision Date: 13 April 1960
• Docket Number: No. 12407.,12407.
• Citation: 275 F.2d 561
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Joseph KILLIAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

275 F.2d 561 (1960)

UNITED STATES of America, Plaintiff-Appellee, v. John Joseph KILLIAN, Defendant-Appellant.

No. 12407.

United States Court of Appeals Seventh Circuit.

January 11, 1960.

Rehearing Denied April 13, 1960.

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David B. Rothstein Chicago, Ill., M. Michael Essin, Milwaukee, Wis., (Meyers & Rothstein Chicago, Ill., and Basil Pollitt, Brooklyn, N. Y., of counsel), for appellant.

Robert Tieken, U. S. Atty., James B. Parsons, Asst. U. S. Atty., Chicago, Ill., J. Walter Yeagley, Acting Asst. Atty. Gen., Jerome L. Avedon, Atty., Dept. of Justice, Washington, D. C. for appellee.

Before DUFFY and CASTLE, Circuit Judges, and MERCER, District Judge.

MERCER, District Judge.

This appeal is taken from a judgment entered upon a verdict finding the defendant guilty on each of two counts of an indictment charging him with having made false statements in an affidavit of non-Communist Union officer filed with the National Labor Relations Board, in violation of Title 18 U.S.C. § 1001.¹

A prior judgment of his conviction of the same charge was first affirmed by us, United States v. Killian, 7 Cir., 246 F.2d 77, but, upon rehearing, on authority of Jencks v. United States 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, we reversed the judgment because of the failure of the trial judge to require the government to produce for defendant's inspection statements made by certain government witnesses to the Federal Bureau of Investigation, United States v. Killian, supra, 246 F.2d at page 82.

A second trial of the cause before a jury has resulted in a verdict and judgment of guilt on both counts. The latter judgment is now before us on review. Our task is largely simplified by reason of the fact of our prior opinion in this cause. While that fact does not lessen the burden of our duty to review the whole of the immediate record upon defendant's contention that the government has not sustained its burden of proof, we are convinced that several of defendant's contentions are controlled by our prior decision. We have reviewed the entire record and have compared the evidence adduced with our summary of relevant evidence in United States v. Killian, supra, 246 F.2d at pages 80-82. From that review and comparison we find that the relevant evidence adduced on the second trial is essentially a carbon copy of the evidence adduced at the defendant's first trial. We therefore conclude that we can, and must, follow our prior adjudication that the evidence was sufficient to support the jury's finding of the existence of every element necessary to proof of the crime charged. Accordingly, we adopt and follow our prior decision in the above respect and limit this opinion to a brief summary of the evidence tending to prove defendant's guilt as found by the jury.

On, prior to and after December 9, 1952 and December 11, 1952, defendant was an employee of the Allen-Bradley Company of Milwaukee, Wisconsin, and a member of Local 1111, United Electrical Radio and Machine Workers of America. From October 1952 to February 28, 1953, defendant served as an officer of Local 1111 by appointment for the unexpired term of an officer who was then being replaced. The president of the Local notified all officers of that Union to come to the Union Office on December 9, 1952 to execute non-Communist affidavits. Defendant and all other officers came to the office on that date and each executed the requisite affidavits (NLRB Form No. 1081).² Defendant was given the affidavit form bearing his name, told to read the document, and then to sign the same, listing his present address. After all affidavits had been signed and notarized, they were mailed by the president or at his direction, to the National Labor Relations Board. Those affidavits were received by the Chicago Regional Office of the Labor Board on December 11, 1952. After receipt of the affidavit, the Chicago office notified Local 1111 that it had complied with Section 9(h) of the Taft Hartley Act. 29 U.S.C.A. § 159(h).³

We agree with our prior opinion, 246 F.2d at page 80, that the jury could find that defendant wilfully and knowingly caused the affidavit executed by him to be filed with the Labor Board. In addition to the facts to which we there alluded that defendant is well-educated, that he knew the purpose of the special meeting of union officers called for December 9, 1952 and that defendant is presumed to have read what he signed, we add, only that defendant had been active in the labor movement and in the Communist Party for some years prior to the critical date and that he cannot be presumed to have been unaware of the purpose and necessity for the execution of such affidavits.

In disposing of the contention that the government failed to prove that defendant was a member of and affiliated with the Communist Party on December 11, 1952, we need do no more than refer to the able summary by Judge Duffy of the evidence relating to that issue, which evidence is, as we have observed, in all material respects identical to the evidence transcribed in the record before us. See 246 F.2d 80-82.

Out of deference to the earnestness of defendant's advancement of that contention now, however, we will briefly summarize a part of the revelation of the present record concerning defendant's Communist Party membership and activities. As early as the fall of 1949 defendant was a member of the Communist Party group on the campus of the University of Wisconsin and in the city of Madison, Wisconsin. Meetings of the Party group were held at relatively regular intervals at which meetings Party aims and objectives were discussed and planned. A number of these meetings were held in defendant's home. Witness Sullivan testified that in October 1949 he transferred his Communist Party membership from Cincinnati, Ohio, to Madison, Wisconsin. He first identified himself to the Wisconsin State Chairman of the Communist Party who advised Sullivan that someone in Madison would contact him. Defendant made that contact and identified himself to Sullivan as Section Organizer of the Party in Madison. Defendant handled the chore of assigning Sullivan and others to the Party group or cell with which they were to work. The testimony reveals a pattern of defendant's activity and leadership in Communist Party matters from late 1949 to the middle of November, 1951, when a Communist Party cell was formed to operate within the Allen-Bradley plant. Defendant suggested to the witness Ondrejka that both he and the defendant should become stewards of Local 1111 to enhance their opportunity for fostering Party aims within the Union. Both became stewards and participated in the stewards' meetings of the Local. In February 1953, defendant took an active part in the efforts of the Communist Party to establish a Labor Youth League Branch within the Allen-Bradley plant.

Ondrejka further testified that defendant discussed Party matters with him at the Allen-Bradley plant on several occasions in the fall of 1952, and that he, Ondrejka, personally knew defendant as a member of the Communist Party from the Spring of 1951 through August 1953. The record reveals a pattern of defendant's active participation in Communist Party meetings and affairs in, and subsequent to, the month of February, 1953.

There is substantial evidence from which the jury could find beyond all reasonable doubt that defendant was a member of the Communist Party when his non-Communist affidavit was signed and filed. To hold otherwise would deny all office to permissible inference and all value to circumstantial evidence as proof of state of mind on a particular day. The jury was certainly justified in inferring upon all of the evidence that defendant's membership and affiliation in and with the Party, which was so actively pursued for a long period of time to a time within a month or two of the date of December 11, 1952, and which was so actively continued beginning in February, 1953, was a continuing membership and affiliation which bridged the critical period without interruption. If that permissible inference is not enough to sustain the verdict the jury may have believed Ondrejka's testimony that he, personally, knew defendant to have been a member of the Communist Party from 1951 through August 1953. This conclusion is consistent with our prior decision which we consider to be controlling upon this question. United States v. Killian, supra.

We come now to the principal issues of this appeal which relate to defendant's requests for the production of documents for use in the cross-examination of government witnesses, Fensholt, Sullivan and Ondrejka, upon whose testimony proof of defendant's Communist Party membership rests.

Witness Fensholt testified that he had joined the student group of the Communist Party in October 1949 when he was a student at the University of Wisconsin and that he had been an active member of the Party until August 1950, when he left the University; that he participated with defendant and others in Party meetings and activities during that period of time; and that subsequent to his leaving the University of Wisconsin he had related the facts of the Communist Party activities of himself, defendant and other members of the student group to an agent, or agents, of the FBI.

Sullivan and Ondrejka each testified that he had joined the Communist Party at the request of the FBI for the purpose of reporting to the FBI the identity and activities of Party members. Each testified that he had been paid by the FBI for his services. Each testified that he had made reports to the FBI during the period of his Party membership.

Each of the three witnesses had also testified before the grand jury which had found the indictment against defendant.

We have before us three principal issues, or three prongs of the same principal issue relating to the court's rulings on defendant's demand for production. As to each of the three...