United States v. Killian

• Citation: 246 F.2d 77
• Decision Date: 19 August 1957
• Docket Number: No. 11967.,11967.
• Parties: The UNITED STATES of America, Plaintiff-Appellee, v. John Joseph KILLIAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

246 F.2d 77 (1957)

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

No. 11967.

United States Court of Appeals Seventh Circuit.

June 10, 1957.

On Petition for Rehearing August 19, 1957.

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

Carl G. Coben, Attorney, Dept. of Justice, Washington, D. C., Robert Tieken, U. S. Attorney, Chicago, Ill., William F. Tompkins, Asst. Atty. Gen., Harold D. Koffsky, Cyril S. Wofsy, Attorneys, Dept. of Justice, Washington, D. C., John Peter Lulinski, James B. Parsons, Asst. U. S. Attys., Northern District of Illinois, Chicago, Ill., for appellee.

Before DUFFY, Chief Judge, and FINNEGAN and LINDLEY, Circuit Judges.

DUFFY, Chief Judge.

Defendant was convicted on both counts of a two-count indictment charging violation of Title 18 U.S.C. § 1001.¹ This section is incorporated by reference in the Taft-Hartley Act, 29 U.S.C.A. § 159(h).² The indictment charged defendant made false statements to a Government Agency, namely, the National Labor Relations Board, in a matter within the jurisdiction of that Board.

On December 9, 1952, defendant executed an affidavit of a noncommunist union officer. The form and wording of the face of the affidavit appears in the margin.³

The first two instructions on the reverse side were, in pertinent part, as follows:

"Who Must File. — This affidavit must be filed by each officer of a labor organization before that organization may receive the help of the National Labor Relations Board. An affidavit must be on file for each officer listed in your Constitution and Bylaws.

"Where To File. — Local Labor Organizations must file this affidavit with the Regional Office of the National Labor Relations Board with which they usually file cases." It is without dispute that the Regional Office in question was located at Chicago, Illinois.

From October, 1952 to March 1, 1953, appellant was an officer of Local 1111, United Electrical, Radio and Machine Workers of America (UE). This Union had a labor contract with Allen-Bradley Company of Milwaukee. On June 9, 1952, a special meeting of the officers of Local 1111 was held. The principal, if not the sole, business transacted at the meeting was the execution of noncommunist affidavits on the form previously described. As each officer signed his affidavit, it was notarized and then stacked on a desk with the affidavits previously notarized. The affidavits were then placed in an envelope and sent to the National Labor Relations Board. The stamp of the Board on the affidavits shows they were received at the Chicago office of the Labor Board on December 11, 1952, the second day after the signing. After the Board determined that all of the officers had executed affidavits, Local 1111 was notified that it had complied with the Act and could avail itself of the facilities of the Board.

Defendant's first argument is that the allegedly false statement was not made within the jurisdiction of a Government Agency. Section 1001 requires, as an element of the crime, that such statement be "made within the jurisdiction" of an Agency of the United States. We think this contention is entirely without merit. The affidavit came within the jurisdiction of the Board as soon as it was filed. The Board had the power to act upon it, and did, in fact, find Local 1111 to be in compliance under the Labor-Management Relations Act because the affidavit of defendant and the affidavits of the other officers had been filed.

Defendant next argues that the Government did not prove that he knowingly filed the affidavit or caused it to be filed. Section 1001 is directed to the making of a false statement "in any matter within the jurisdiction of any department or agency of the United States." There is no requirement in that section as to the filing of an affidavit. However, in order to be within the jurisdiction of the National Labor Relations Board, Section 9(h) requires that such affidavit must be on file with the Board.

In response to a question on oral argument, defendant's counsel assured us that he was not contending that the Government must show that defendant, personally, filed the affidavit with the Board. However, he did insist there was no showing that defendant caused the affidavit to be filed. We do not agree. The defendant is a well-educated man. He knew the purpose of the special meeting was to have the affidavits executed. He is presumed to have read what he signed. Certainly, there is no evidence to the contrary. The instructions on the affidavit specifically stated that the affidavit had to be filed with the Board if any Union Local were to be entitled to receive the help of the Board. The affidavits were kept together and were placed in one envelope. They were promptly received by the Chicago office of the National Labor Relations Board. We hold there was sufficient proof that defendant caused the alleged false affidavit to be filed with the Board.

Defendant argues the Government failed to prove he was a member of the Communist Party or was in affiliation with the Communist Party on December 9, 1952, the date when he executed the affidavit. It is true, the record contains no evidence pin-pointing the membership or affiliation on December 9, 1952, but we do not think such proof was necessary to sustain the judgment of conviction.

The proof discloses defendant was a member of the Student Branch of the Dane County, Wisconsin, Communist Party as early as October, 1949. Meetings were held three or four times a month and defendant was a regular attendant. Some of the group meetings were held at his apartment. These meetings were open only to members of this Communist Party group, and a special procedure was used in order to gain admission. These meetings were screened by the playing of phonograph records to avoid suspicion. Defendant paid his dues to the Chairman of this group.

In November or December, 1949, defendant identified himself as a Section Organizer of the Communist Party. Defendant explained to Robert Sullivan that the Communist Party in Madison, Wisconsin, had been broken down into small groups for security purposes; that each group had particular assignments such as the National Association for the Advancement of Colored People, Young Progressives of America, and certain religious groups.

Defendant was the speaker at various Communist group meetings. At some of them he urged all present to purchase subscriptions to the Daily Worker and, on one occasion, solicited funds for the payment of a debt for Party literature. In the spring of 1951 defendant attended a meeting at the home of Jack Kling, the State Chairman of the Wisconsin Communist Party. Defendant attended other meetings where Kling spoke, including one at which Kling stated that those present must accept the fact that there never can be any permanent peace between capitalistic and socialistic countries. Kling pointed out this doctrine had been laid down at an International Conference of the Communist Party in 1927 and those present would have to accept it. Kling also stressed the importance of Communists gaining control of the labor movement in this country.

About the middle of November, 1951, a Communist Party group meeting was held at defendant's home. Defendant stated the purpose of the meeting was to form a cell of the Communist Party at the Allen-Bradley plant. Defendant informed Ondrejka who had joined the Communist Party at the request of the F. B. I., that it was of the utmost importance that they both become stewards in the plant in order to make a more effective Communist Party cell. Both did become stewards but, for security reasons, defendant and Ondrejka avoided each other at the stewards' meetings.

During February, 1953, a Communist Party meeting was held in defendant's home. Also present were Jerry Rose and Ted Silverstein, the South Side Section Leader and Youth Coordinator, respectively, of the Communist Party in Milwaukee. Rose praised the work that defendant and Ondrejka had been doing for the Communist Party at the Allen-Bradley plant, and stated that the time had arrived to coordinate activities under a new Communist Party Club. Rose suggested defendant be made Chairman of the Club because it would be easier for Rose and defendant to meet and discuss agenda. At this same meeting Silverstein discussed plans for the formation of a Labor Youth League at the Allen-Bradley plant.

Later, another Communist Party meeting was held at defendant's home. Again Rose and Silverstein were present and urged the immediate establishment of a Labor Youth League at the Allen-Bradley plant. It was decided at the meeting that this should be done.

In April, 1953, a meeting was held at defendant's house to discuss mailing to certain individuals of a special May Day edition of the Daily Worker. At defendant's suggestion it was agreed to mail a copy to each of the stewards at Allen-Bradley. A week later, a fund-raising meeting of the Communist Party was held at defendant's home. The quota for the group was $100. Defendant pledged $35 upon behalf of himself and wife.

Defendant assigned himself as a member of the Legislative Committee of Local 1111, but vetoed Ondrejka's choice to be a member of the Welfare Committee. Defendant urged the importance of committee work in a Union, that by control of a Union's committee, the Party could control the Union without being officers of it. Defendant further explained how a single member of a committee could obtain control of that committee.

A meeting was held in defendant's home in May, 1953. Recruiting of members for the...