United States v. Lohman

• Decision Date: 19 June 1953
• Docket Number: Crim. No. 2705,2707.
• Parties: UNITED STATES of America v. Walter C. LOHMAN, Jr. UNITED STATES of America v. Everst Melvin HUPMAN.
• Court: U.S. District Court — Southern District of Ohio

127 F. Supp. 432

UNITED STATES of America v. Walter C. LOHMAN, Jr.

UNITED STATES of America v. Everst Melvin HUPMAN.

Crim. Nos. 2705, 2707.

United States District Court, S. D. Ohio, W. D.

June 19, 1953.

Ray J. O'Donnell, U. S. Dist. Atty., Columbus, Ohio, for plaintiff. Joseph C. Bullock, Asst. U. S. Atty., Cincinnati, Ohio, of counsel.

J. Paul Prear, Dayton, Ohio, David Scribner, New York City, Donner, Kinoy & Perlin, New York City, for defendants.

CECIL, District Judge.

These cases are pending before the Court on identical motions of the defendants, seeking orders from the Court as follows: First, to dismiss the indictments; Second, for a continuance; Third, for inspection of certain documents, etc., and Fourth, for a bill of particulars.

Rule 12 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., provides for the filing of motions before trial. Subdivision (b), par. (3) of this rule provides "The motion shall be made before the plea is entered, but the court may permit it to be made within a reasonable time thereafter".

On December 17, 1952, subsequent to the entering of pleas herein, and without consent of the court, defendants filed motions seeking orders similar to those now requested by the motions before the Court. The motions of December 17 were heard by Martin, Circuit Judge, sitting in this court by designation. Judge Martin wrote a very comprehensive decision upon the motions heard by him, which is filed in the respective cases herein. He overruled the motions in their entirety, except that portion by which counsel for defendants sought the inspection of records. In this regard, he stated that the United States Attorney had agreed to submit such documents as he had for inspection.

The grounds of the motions now before the Court, with the exception of the request for a continuance, have been passed upon by Judge Martin in his decision on the previous motions. Further than this, the motions have not been filed in accordance with Rule 12, above quoted. The reason stated for filing the motions at this time, as to the first branch thereof, is that there have been decisions subsequent to the decision of Judge Martin, which are in point.

The first branch of the motions attacks the sufficiency of the indictments. It was stated by Mr. Perlin, counsel for the defendants, that "the essential ingredients are one, there must be a statement, a writing, a representation, oral or written, second, that statement must be false; third, reading these statutes together, that statement must be filed with the NLRB. That is a requirement. This is a filing statute. That is the nature of this type of statute, a statute which requires filing, and until there is a filing, there is nothing. In addition to that, it must concern a matter within the jurisdiction of NLRB; it has to be a subject matter that the NLRB has power to act."

Testing both counts of the indictment by these requirements, we find that it is alleged that the defendants in an "affidavit of Non-Communist Union Officer" made a "false, fictitious and fraudulent statement and representation". It also alleges that the affidavit is in a matter within the jurisdiction of the National Labor Relations Board. It does not allege that the affidavit was filed.

Section 159, Subdivision h of Title 29, of the Labor Act, 29 U.S.C., does provide for the filing of such affidavit before certain privileges or rights shall be available.

The prosecution is under Section 1001 of Title 18 of the United States Code.

It is the opinion of this Court that it is not necessary to allege in the indictment that the affidavit was filed. It is sufficient if the indictment alleges an offense under Section 1001 above cited. The matter of filing is evidentiary.

Mr. Perlin then states "Two other final requirements that the statement made and alleged to be false and filed with the NLRB must be material and the falsity must be as to a material matter."

The indictment does not use the word "material" but certainly the facts as alleged in the indictment show the materiality of the alleged false representation.

Referring to Section 159, Subdivision h of the Labor law above cited, it is found that unless such an affidavit containing an allegation that the affiant is not a member of the Communist party, etc., "no complaint shall be issued pursuant to a charge made by a labor organization under subsection b of section 160 of this title."

Mr. Perlin further argued "Finally, there must be an intent, a criminal intent. That criminal intent must mean an attempt to misuse the processes of the NLRB. There are no facts whatsoever from which any criminal intent, other than the bold insertion of the words `knowingly', `wilfully', which constitutes the words `criminal intent' being set...