United States v. Pezzati, Crim. A. No. 15124.

• Citation: 160 F. Supp. 787
• Decision Date: 27 March 1958
• Docket Number: Crim. A. No. 15124.
• Parties: UNITED STATES of America, Plaintiff, v. Albert PEZZATI, Raymond Dennis, Irving Dichter, Graham Dolan, James Durkin, Asbury Howard, Alton Lawrence, Jack C. Marcotti, Chase J. Powers, Harold Sanderson, Albert Skinner, Maurice E. Travis, Jesse R. Van Camp, Charles H. Wilson, Defendants.
• Court: U.S. District Court — District of Colorado

160 F. Supp. 787

UNITED STATES of America, Plaintiff, v. Albert PEZZATI, Raymond Dennis, Irving Dichter, Graham Dolan, James Durkin, Asbury Howard, Alton Lawrence, Jack C. Marcotti, Chase J. Powers, Harold Sanderson, Albert Skinner, Maurice E. Travis, Jesse R. Van Camp, Charles H. Wilson, Defendants.

Crim. A. No. 15124.

United States District Court D. Colorado.

March 27, 1958.

Donald E. Kelley, U. S. Atty. for District of Colorado, Denver, Colo., Lafayette E. Broome, Cecil R. Heflin, Dept. of Justice, Washington, D. C., for plaintiff.

Telford Taylor, Nathan Witt, New York City, Eugene Deikman, Denver, Colo., for defendants.

KNOUS, Chief Judge.

The defendants have interposed a motion to dismiss the indictment. Extended oral arguments on the motion were heard following which the parties were requested by the Court to submit memoranda on the points and authorities upon which they relied. While several alleged grounds for dismissal were enumerated in the motion, the arguments and memoranda submitted by counsel primarily have been directed to the contention of the defendants that the indictment does not state facts sufficient to constitute an offense against the United States.

The indictment charges conspiracy to defraud the United States. It covers the period from June 15, 1949, to the date of the return of the indictment, November 16, 1956. The defendants are fourteen officials and employees of the International Union of Mine, Mill and Smelter Workers, a labor organization within the meaning of the Labor Management Relations Act of 1947 (29 U.S.C.A. § 152(5)). The charge is that the defendants were members of and affiliated with the Communist Party and conspired with each other and with other persons both named and unknown:

(1) Fraudulently to effectuate on behalf of the Union a compliance with section 9(h) of the Labor Management Relations Act of 1947 by means of false and fraudulent statements made to the National Labor Relations Board, an agency of the United States;

(2) Fraudulently to obtain and use for the Union the services and facilities of the Board without a good faith qualification of the Union, and

(3) To pervert and defeat the proper administration of the 1947 Act by the Board.

The indictment asserts, inter alia, that as a part of the conspiracy the defendants would:

(1) File with the Board non-Communist affidavits which would falsely and fraudulently represent that certain Union officers were not members of and affiliates with the Communist Party;

(2) Fraudulently induce the Board to issue to the Union certificates of compliance with section 9(h) of the 1947 Act and fraudulently obtain from the Board the right to make use of the services and facilities of the Board;

(3) With knowledge of the false and fraudulent character of the affidavits and of the fraudulent compliance with section 9(h), use the services and facilities of the Board on behalf of the Union.

The indictment alleges twenty-one overt acts. The first in point of time is said to have occurred on July 19, 1949, and the last on August 11, 1955.

Section 9(h) of the Labor Management Relations Act of 1947 (29 U.S.C.A. § 159 (h)) reads:

"No investigation shall be made by the Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b) of section 160 of this title, unless there is on file with the Board an affidavit executed contemporaneously or within the preceding twelve-month period by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate or constituent unit that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods. The provisions of section 35A of the Criminal Code shall be applicable in respect to such affidavits."

Section 35A of the Criminal Code referred to in the above-quoted statute was repealed by the Act of June 25, 1948, 62 Stat. 862, and is now covered by various sections of Title 18 U.S.C. Of these, only 18 U.S.C. § 1001 is pertinent. It provides:

"Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and wilfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both."

The indictment charges a violation of 18 U.S.C. § 371 which, so far as pertinent, provides:

"If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both."

The position of the Government is that the indictment charges a conspiracy "to defraud the United States" and not a conspiracy to commit offenses.

Hence, the argument of defense counsel that the indictment is insufficient to state an offense under the conspiracy to commit offenses clause of section 371, supra, need not be considered since, as has been stated, the Government relies solely on the sufficiency of the indictment to charge a conspiracy to defraud the United States.

The fraud on the United States is alleged by the Government to be the use of the facilities and services of the Board for the Union after the fraudulent compliance with section 9(h) by filing of the non-Communist affidavits required by section 9(h) of the 1947 Act. As noted above, this section provides that before a union has certain rights under the Act affidavits must be filed with the Board stating that union officers are free from membership in or affiliation with the Communist Party.

Section 9(h) does not violate the Federal Constitution (American Communications Ass'n C.I.O. v. Douds, 1950, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925). As stated by the United States Supreme Court, the purposes of section 9(h) are:

(1) "to protect the public not against what Communists * * * advocate or believe, but against what Congress has concluded they have done and are likely to do again" (American Communications Association v. Douds, supra, 339 U.S. at page 396, 70 S.Ct. at page 683).

(2) to "wholly eradicate and bar from leadership in the American labor movement, at each and every level, adherents to the Communist party and believers in the unconstitutional overthrow of our government" (National Labor Relations Board v. Highland Park Co., 1951, 341 U.S. 322, 325, 71 S.Ct. 758, 759, 95 L.Ed. 969);

(3) "to stop the use of the Labor Board by union leaders unwilling to be limited in government by the processes of reason" (National Labor Relations Board v. Dant, 1953, 344 U.S. 375, 385, 73 S.Ct. 375, 381, 97 L.Ed. 407).

Upon their voluntary compliance with the conditions prescribed, section 9(h) makes available to labor organizations the benefits and advantages arising from

(1) the Board's investigation of questions raised by labor organizations concerning the representation of employees, and

(2) the Board's issuance of complaints pursuant to a charge made by a labor organization (United Mine Workers of America v. Arkansas Oak Flooring Co., 1956, 351 U.S. 62, 70, 73, 76 S.Ct. 559, 100 L.Ed. 941).

These rights are of the utmost importance to trade unions. As said in American Communications Ass'n v. Douds, supra, 339 U.S. at page 390, 70 S.Ct. at page 679:

"The fact is that § 9(h) may well make it difficult for unions to remain effective if their officers do not sign the affidavits."

Section 9(h) makes Section 35A of the Criminal Code applicable to the required affidavits. In Leedom v. International Union of Mine, Mill and Smelter Workers, 1956, 352 U.S. 145, 77 S.Ct. 154, 1 L.Ed.2d 201, and Amalgamated Meat Cutters, etc., v. National Labor Relations Board, 1956, 352 U.S. 153, 156, 77 S.Ct. 159, 160, 1 L.Ed.2d 207, it was held that:

"* * * the sole sanction for the filing of a false affidavit under § 9(h) is the criminal penalty imposed on the officer who files a false affidavit, not decompliance of the union nor the withholding of the benefits of the Act that are granted once the specified officers file their § 9(h) affidavits."

The prosecution here is for conspiracy to defraud in violation of the general conspiracy statute, section 371. It is not a prosecution under section 1001, the false statements statute. In Leedom v. International Union of Mine, Mill and Smelter Workers, supra, 352 U.S. at page 148, 77 S.Ct. at page 156, the Court said, with reference to section 9(h):

"We start with a statutory provision that contains only one express sanction, viz., prosecution for making a false statement."

The first question is whether a prosecution under section 371 may be maintained. Section 9(h) does not expressly repeal section 371. It is a cardinal rule of construction that repeals by implication are not favored (United States v. Borden Co., 1939, 308 U.S. 188, 198, 60 S.Ct. 182, 84 L.Ed. 181). Where Congress by more than one statute proscribes a private course of conduct, the Government may choose to invoke either applicable law (Rosenberg v. United States, 1953, 346 U.S. 273, 294, 73 S.Ct. 1152, 97 L.Ed. 1607). The existence of a specific criminal statute or a reference thereto such as appears in section 9(h) does not preclude prosecution under other applicable statutes...