Maurice E. Travis v. United States

qualification required Forest Service TRAVIS, Appellant, Maurice E. right grazing per- preference to a for a question mit applicant here kind prop- ranch America, own commensurate UNITED STATES of ap- Appellee. erty And further it livestock. peared appellees Reid Mark S. that the No. 5879. any presently own and wife then did not Appeals States Court headquarters. But cattle ranch Tenth Circuit. appellants well that when could Aug. 3, 1959. relinquishment to executed a shall have Aug. 21, Rehearing Denied grazing outstanding permit the appellees application for an submit shall grazing permit own will to them required property and commensurate any event, supplemental livestock. In designed protect appellants

order was grazing permit against the loss any comparative benefit to

without Too, jurisdiction

appellees. the reserved ac- subsequent orders could

to enter appropriate in an tivated and exercised judicial appellants manner to afford which circumstances

relief or redress to intervening entitle future

them. remaining merits contention One argued per specific It is

attention. reason denied for the formance should be appel passing to

that the consideration disproportionate value

lants was so appellees property passing uncon

the transaction constituted bargain. was not The issue

scionable re pleaded and the evidence as defense meager. lating ranching-

There rea included unit with allotment Judge, Murrah, dissented. Circuit price sonably $52,000. The sale worth $20,000. appellants thor But oughly They property. with the familiar years in had used it for conduct nego parties

their ranch business. The from time months and

tiated to time for

finally no came accord. There was into

overreaching arising appellants out of unfamiliarity property. with the

their circumstances it cannot be in such

And disproportion price was so that the said property as to con the value ate to bargain. an unconscionable

stitute judgment is affirmed. 1001,2and ordered a trial because of new

prejudicial error committed when prosecutor improperly was allowed to appellant’s cross-examine wit character present appeal nesses. The is from second conviction after retrial of the case United States District Court District of Colorado. Reversal sought upon insufficiency of a claim of support evidence to the verdict prejudicial numerous error assertions of during committed the trial. challenges constitutionality also pro 18 U.S.C.A. 3500 both as to its § applied visions as construed the trial court. appellant, Travis, was E. Maurice by jury

convicted on counts of a four falsely charging an indictment him with fraudulently attesting that he was not an member the Com affiliate or of Party munist Non- in two “Affidavits of City, Witt, ap- Nathan New York for executed Communist Union Officers” he pellant. as a of national officer International Kelley, Atty., Denver, Donald E. Mine, U. Worke S. Union of Mill and Smelter Colo., Vincent, Atty., Dept, on executed and Paul C. rs.3 The first affidavit was (Philip of Justice on R. An- Monahan and December the other thony Ambrosio, Attys., Dept, 3, 1952, A. filed Jus- December and Mine-Mill of tice, Washington, C., Labor Relations were them them with National D. with brief), appellee. provisions on compliance for with the Board 9(h) National Labor of Section PHILLIPS, MURRAH Before by Labor amended as Relations Act Judges. LEWIS, Circuit Management (29 U.S.C.A. § Act of 159(h).) Judge. LEWIS, Circuit appeal Following appellant conviction, for here on action This appeal,1 a $2,000 the first and sentenced serve On fined four-year time. second imprisonment under each conviction of term aside set statute, U.S.C.A. fine § No of the indictment. two of counts statement false by F. investigation made shall be 4. v. United “No 1. Travis affecting any question com- Board 130. 2d representation concerning merce ju- any “Whoever, within the matter * * * complaint employees, no agency department any or risdiction charge pursuant be issued shall willfully knowingly and States the United * ** organization by a labor made any by up falsifies, covers or conceals an file the Board there is on with unless fact, scheme, trick, a material device or * * * by offi- each executed affidavit false, any or fraudu- fictitious makes or * ** organization of such labor cer representations, or or statements lent of the Com- he is not member writing any or docu- false or uses makes par- with such or affiliated any knowing same to contain ment in, ty, and he does not believe and is false, statement or fraudulent fictitious supports any of or or- member entry, more than be fined not shall ganization teaches, in or that believes imprisoned $10,000 than more five of the United States Govern- overthrow years, or both.” illegal force or uncon- ment ” * * * methods. 3. Hereafter called Mine-Mill. stitutional remaining usually imposed two tivities as to within the Union were four-year presided counts, sentenced him other but he was over “or some concurrently ranking prison in- run terms on Communist official.” both His meetings imposed on the fluence notable. with terms these Thus, On one the other counts. he was sentenced occasion he stated to eight years prison fined committee members total of that since gained majority $4,000.5 votes on Executive should Board of Mine-Mill challenges appellant the sufficien- Since changes effect Union staff certain cy summarize shall the evidence we previous taken actions government urged by the that evidence Board anti-Communist faction of the ample This as verdict. basis proposals should be reversed. These testimony primarily consists adopted by subsequently the Mine- Party members three former Communist Mill oc- Board. another Executive On who capacities with Travis various associated Travis, the Steer- casion as a member Their Mine-Mill. as officersof ing Committee, participated nation- with in 1942 Travis indicates that Party in al officers of the Communist employed by Mine-Mill coordina- planning strategy selection California. for the of Northern tor area support Party-approved candidates member of He was at time a Mine-Mill. international offices assignment strategy substan- The resultant was later carry activities on the Communist tially national a Mine-Mill carried out at among in his area. the Mine-Millworkers convention. positions of Thereafter, advanced to he Congress amended the Na- prominent leadership Mine-Mill tional Relations as re- Labor enjoyment Act so to becoming Presi- Union Assistant to the strict the collective bar- of in 1947 and dent in Vice President gaining advantages provisions to of its year. He has been President later that organizations labor whose had officers Secretary-Treasurer the Union from attesting filed affidavits that were was trial. There until the time affiliated with the not members of or activities extensive Travis’ evidence of Party. Communist 29 U.S.C.A. § prior to Party member as a Communist (h). description prolonged his of except 1949. No government here actions will be undertaken The introduced into evi- point progressed to that he to copy public out as a dence of a statement made positions leadership by of national in Mine- by Travis in paper the Union positions Mill to resigned he was able to use those he declared he had Party. further Illus- Party the interests of the the Communist in order to com- scope trative of the of his ply Taft-Hartley activities is with the new amend- in evidence that 1946 the It then ment. undertook to show that Party designated group resignation of members its merely pretense prominent who were Mine-Mill leaders and that in membership fact Travis’ in Party coordinate the Communist during to activities period continued con- within Mine-Mill with a view to to material this conviction. The evidence trolling Although proper. regard Union in this delineated a Communist organization Mine-Mill, meeting an official New labor York called to de- “Steering group known became cide whether would advocate sign Committee.” Travis one of the its members the non-Com- Steering initial of the members Commit- under the affidavits new law. It meetings frequent plan- Party policy tee its decided that would strategy ning Party organizing signing. against Appellant participated ac- giving judgment imposed 5. Tho rise to the instant on all four at the counts former judgment appeal making $8,000. differed from the a total fine of trial $2,000 in that the first trial fines were meeting. Later, parent re- advantages when he loss of ported Party members causing to difficulty, decision Unions was Mine- of his his fellow own Union he asked Mill re Executive resolution Board teachings previous adopted Communist Gil Green if the versed position its Lenin, policy V. Com- effect compliance. Travis was working unions munists trade inside member of when Board Executive including costs, must remain there at all that decision was made. statements His so, government the use Mason, of artifice or device do set forth witness applicable infra, “resigna Green situation. their at the he wrote his time replied affirmatively pointed out tion action statement” his indicated that the law labor could circumvent leaders was in accordance with Communist “Thursday belonging policy. afternoon resignation This statement only pertained August published social club” law since the paper Union present past membership 1949.6 membership. future government pertaining Following passage appellant’s membership non-Com- of the continued requirement Taft- resignation munist affidavit after the statement showed Hartley gov- law, Executive Mine-Mill that in the fall 1951 Travis used policy non-com- adopted Gardner, who Board ernment witness Fred exercising option as thereby Mine-Mill, its pliance, recently employed been Non-compliance, of crossing into Act. provided assist him border inability Union course, explained resulted to Gardner Canada. Travis utilizing advantages crossing difficulty having to receive that he was charges filing facilities N.L.R.B. of his border because participation resignation practices public state- labor unfair and the ap- it became When cross Board elections. be easier to that it would ment and his ions are an unionist union that low members affidavits ests. national ter trade as a their a call as a tome My make Hartley sense the Union is statement been signing Excerpts “This has “The “Since union. On the big Japan resignation utmost misled confronted member and result, it interests I have to os (Emphasis talce. very lie Party possible from owes indignation, affidavit. the Union, greater uppermost unionist: illustrate down from this biga reluctance premise integral part interest I have solemn say been Membership the has peoples that has now above all other for me with that that a lie, been an effort in higher Communist a always I have officer of its contrary, it road member, the same sort to in signed I pledge original.) the I could public has meant would Communist trade take such my general tenor: in to the taken loyalty Germany, to problem of a Socialist easy sign the Taft- meant behalf decided, with Taft-Hartley in with mind, International the fascism. to in order resignation the Inter- trade the Com- be fight Party, of place and step affidavit. my than to a a I to to inter- of lie Italy great step. have bet- me, fel- un- me re- It to vinced best dear sistent consistent with International Union.” is Union and the American and that unemployment constantly mass generate. tinues sions bor end of unionists. of the charter of change that along munists believe. absolutely society, “Therefore, “I am convinced that “At the same responsible & ^[*] produces all interests good that destruction and the lines producer it insecurity, with the finest to be that in the structure I the am ** to remember my clear ^[*] Communists ^[*] kind responsible danger I want especially happy for war and its attendant implied what I belief in Communism is thereof,’ time, * wealth —wealth that our discrimination, depres- Therefore, society ^{[*] [*]} only of war. to make it horror, International, I want mass members of this my opinion believe to traditions capitalistic people are that can lead of our a fundamental in which Com- ^{[*] [*]} misery depression, good very I am con- to make it it to be able I believe generally is con- belongs society, crystal be to words greed ^[*] trade ^[*] they con- ‘La- the day, “these later that Mason Travis told it would in Gardner’s car because things, too, repeal other of the Mc- He like police. recognized by be Canadian Act, important, Carran and he said well are himto stated had come that Gardner they Party they get ‘When will us Communists Communist recommended get glad you people after we don’t be like if he was Cleveland, Ohio, that ” repealed.’ regret these laws his that expressed of that. Travis necessary resignation public been In June was to witness Gardner conform in order for Mine-Mill to a new transferred Mine-Mill as- filing requirements and Taft-Hartley signment Mining d’Alene the Coeur “ *** discussing he said that this he District of instructed him Travis Idaho. gave because was a mistake believed it stop Colorado, way Denver, on his Party opportunity enemies of “briefing to Idaho for a on the Coeur his pointing out that to use that thereto, Pursuant d’Alene situation.” Party, resignation wasn’t true Gardner with in Denver and met Travis merely con- actually it done was told of a factional dis- that because Taft-Hartley affidavits. form to the Party pute between members Communist (cid:127)X' *X* * >f of Mine-Mill he was to d’Alene Coeur activity “remain aloof” from until after execu- Relative to (December further stated he notified. Travis tion of affidavit the first dispute 1951), in felt assured would be testified that Mason witness expulsion of to him that resolved the leader of stated March 1952 Travis regional opposing delegation faction World Feder- at the the Soviet France, Paris, officers and instructed Gardner once Unions in ation of Trade demanding problem left- resolved he “American would that the wing expelled from contacted whom Travis would had been someone unions” who Organizations Congress identify to and that Industrial him beforehand He that time reactivate him- federation.” said Gardner could form a “third up Party. had left it self the Communist make the decisions in the Unions to those August 1953, witness Mason had a what his view was. Mason and asked Butte, conversation tana, with Travis Mon- agreement expressed Ma- Travis appellant in which he accused opposed response he such son’s trying his associates of boys in that “the move and said leadership of Mine-Mill undermine him, and had left it to unions” concurred Travis, District 1 while were in the Number reply Par- to communicate bargaining midst of conflict with em- is. ployers. Mason that he was stated aware postdating the The evidence execution that this done because the District leadership opposed in of the affidavit that 1 second indicated Communist domina- Mine-Mill, Mine- March 1953 a staff conference of tion of that some of the men Denver, Colorado, very angry in Mill was held Montana were about in organizational addressing po- the discussion of and and he was situation that At this litical action. conference Trav- himself to Travis as the leader of the Appellant copy Mason a in is handed to witness of the the Union. made no agenda. suggested proposed that conference Mason ex- but he would denials like legislative “boys pro- up with amined the outline gram to take matter in suggested therein which that Mason contained listed a Denver.” He meet “repeal days in number items such in a him few Denver talk “fight against things compliance McCarran Act” and witch- over. Mason met hunting” again expressed Travis’ and called attention to in and Travis Denver his nothing pertain- opposition in fact that listed various activities Mine- ing including Travis view that betterment workers. his Mill Union agreed sug- constantly foreign paper and matters criticized the directed gested by However, Mason be included. policies of the United States without once 936 781; attacking States, Cir., Un- position the Soviet United 9 180 F.2d Spaeth posi- States, Cir., 218 F.2d v. United 6 ion. Travis that Mason’s answered case, However', 361. this opposition to Par- in the tion ty in Sells direct being if and circuit followed the the 7th and that not realistic view of he was change thought circuits, 9th appellant the court-established he could governing Appellant quantum policies rule required paper. con- perjury, prosecution stating in a tinued, that the viz., falsity leadership must there of the statement in Mine-Mill felt he, independ- shown compromises of two “and that should be no corroboration, Travis, ent is witnesses or other is one who of those many inapplicable prosecution Sec- to a under thinks that compromises already, have been too there Killian, 7 tion 1001. United States v. [Mason did] Cir., 77; situation, grasp United 246 F.2d Fisher v. not the new 99; becoming Cir., stronger, Fisher F.2d Union Soviet 302; see position 254 F.2d in that the of the Communists States, Cir., stronger, Hupman also v. United Union we have has been Hence, to, said, repulse F.2d the trial court did not able

been he raid submitting err the case to the Ma- hold this union and unions.” instructing fight open without accordance with son the Com- threatened an perjury pointed rule. issue Travis out that fighters, the ma- he would have seasoned con evidence of Travis’ against paper, Ma- to use chine and the tinued stands fight. con- in such Travis then son at uncontradicted. made no by telling Mason: cluded conversation govern tempt affirmatively rebut the in- brother] “You Joe were [Mason’s ment did he evidence on that issue nor get Party, you done vited to into the purported res evidence of his introduce sitting high so, you would be ignation. Instead, his consist defense organization us, councils of but this primarily ed in extensive cross-examina you failed to do so.” prosecution in an en tion of witnesses Many ap points raised impeach deavor their discredit pellant’s brief considered testimony. He also the testi introduced of Sells v. Unit the recent case mony of character witnesses as to his States, Cir., 262 F.2d and need ed veracity. reputation truth Of length. again be treated As rebutting course, evi the absence involved, evidentiary questions government way no relieves the dence in proposition that case for the Sells stands meeting proof. the burden of Nev prosecution the false statements under principle ertheless, fundamental it is a temporary statute not defeated appellate review criminal cases signing “resignation” purpose of for the concluded, jury has as it did once the only. Evidence active the affidavits guilt here, of the accused was that the continuing participation basis both on a doubt, beyond proven it is reasonable sign crucial time of and after the before province nor the of this function filing ing the affidavit sufficient weigh test court to the evidence to jury might the in from which evidence credibility of witnesses. United the during membership continued fer Green, Cir., F.2d 155. 7 246 States v. question. in time the scope Furthermore, are we limited urged determination of Appellant per of our review a has that the apply is substantial evidence jury whether there must con rule evidence verdict, support Wilcoxon v. United false statements under the victions Sec States, Cir., 384, U.S.C.A., 1001, 231 must 18 and that 10 F.2d since the tion light concededly government’s most favor case is circum the evidence view legally government, is Evans v. United the evidence insufficient able to the stantial verdict, Radomsky States, 240 F.2d 695. cf. 10 With these sustain the v. 937 evidence, jected the to the introduction of mind, review principles careful in a asserting based was that the persuades us record the voluminous by facts, by upon opinion unsupported amply jury sustained the verdict the date with appellant’s Com- it was unconnected time proof that cumulative resignation in or the of filing 1949 defendant’s not sev- was 1952, resignation in 1951 and of the affidavits by purported the ered gov- by attempt the that it was an on the dates member was that he a guilt impute by association. ernment to crucial to this decision. pro assuredly, Most evidence necessity to consider no There is of the side of the bative second sufficiency under evidence membership, i. e. whether the indictment be of the “affiliation” counts willing accept defendant and imposed thereon were no fines cause recognize member, and hence him as a counts were prison on those sentences admissible, more it could without but pris concurrently with the run made to nothing show of mind of the of the state “membership” counts. of the on sentences not show that he defendant and could 339, States, 355 U.S. at Lawn United v. resign not, fact, from the did 321; 311, 359, 2 page L.Ed.2d 78 S.Ct. by he claimed. As was said the date Hirabayashi States, 320 United U.S. Judge special opinion writ Bazclon 1375, 1774; 81, Roviaro 87 L.Ed. 63 S.Ct. States, U.S.App. 99 ten in Cold v. 53, 59, States, page 353 U.S. v. United 136, 772, 764, D.C. 237 F.2d reversed on 6, 623, 1 L.Ed.2d 639. S.Ct. footnote 77 grounds 985, 352 U.S. 77 S.Ct. contends, but without 360: L.Ed.2d merit, affida statements that the effectively resign no one can “If vits, the evidence found shown with, Party, from the appellant’s no union officer jury false at the to have been history comply can ever made, not “materi time were (h) statutory phrase with and the § Union did utilize the al” because precisely equiv ‘is not member’ recognition by procedures after N.L.R.B. alent to never ‘has been member.’ Relations Labor Board. the National possibility specifically This Douds granted Recognition the Mine-Mill rejects.” See American Communi filing among Travis result of the Association, cations C. I. O. v. others, indeed must have been his Douds, U.S. filing, and false statement intent 94 L.Ed. 925. influencing, “capable the decision making sought given tribunal a determina Defendant to have made,” required jury to be tion Weinstock to the an instruction which could be U.S.App.D.C. 365, purpose v. United understood limit the materiality The testimony, 231 F.2d admission of this but the trial that, the false statement tested not court ruled considered with other record, use of the N.L.R.B.’s Union’s facilities evidence was probative thereby relevant and Union’s whether or but achievement resignation resig right defendant’s was a true which carries it the of a status nation or mere sham obtain bene National to invoke benefit La fits of National Labor Relations bor Relations Act. Sells v. United Act Upon premise, Mine-Mill. supra. coun argued sel that numerous government’s tes- witness Eckert including government’s persons, wit during the time that he was tified regardless Party, nesses, had left the Party, member Party’s policy. the continuing 1948, policy to it was the of having joined jury Party the proper- “that once not the Whether could Party you ly from could not infer the related Communist leave evidence that being expelled.” continued to act in Defendant ob- defendant without obedi- resigna- policy resignation to pnce this that and his from the in which he only pointed tion was in form resig- understood to be out that he believed that nation, determines the court was cor- public resignation whether that a mis- was refusing rect in .by gave to its use circumscribe take because it enemies of the (cid:127) jury. Wigmore, Evidence, I sec. opportunity point- an to use that ing 13. resigna- out that his wasn’t a true n Party, actually tion from the that meeting 1948, City In a in New York merely Taft-Hartley done conform among significance persons was held of affidavits, they recognized, ene- in the trade unions Communist Party recognized mies of the this Party7 including the defendant * * resignation, was not actual an government Eckert, witness who related transpired. what Party’s The National Trade policy Thus of the the evidence Secretary Ünion of the Communist interpretation Par of the relevant ty presided purpose behavior, and stated that the statements and defendant’s meeting of the was to analogous determine whether impu prohibited is not to the membership not officials the unions Communist tation alone drawn granted permission fully the Par of should be that a endorses all member sign Party. ty affidavits. precepts the non-Communist Schneiderman Cf. Despite protesting speeches 118, that the un 320 U.S. v. 1796; appearing on election bal 1333, ions were 87 L.Ed. Nowak United compliance 963, with of lack of lots because 356 U.S. 78 S.Ct. Maisenberg 1048; law, that Communist it was decided v. United 2 L.Ed.2d States, sign affidavits. would 78 S.Ct. L. Union men 356 U.S. decision was one 1056. Travis’ reaction Ed.2d Mine-Mill support The and obedience. charge that Eckert’s signing policy adopted of not opinion unsupported point was this affidavits. non-Communist going the main issue results facts gov- Subsequently, told another as to Travis the record from confusion testifying Mason, witness, that the Union as an ex- Eckert was ernment whether pert. knowing becoming position more concerned more and what Eckert’s policy during of elections and the time his the losses because through had been was shown customarily discussing again the Communist evoked to whether similar to sign expert, qualify affidavits. but he testified officialsshould an Union knowledge with Mason in rather than within his conversation a fact In second copy expert. giving opinion July, 1949, him as an Travis offered statement, resignation which was lat- his did not instruct The trial court paper, published Union’s er presumption, that there was ab- had been cleared the statement said contradicting evidence, either sence Party people in and the Ben Gold with resignations Party’s policy of no Mason told that “the He York. New Party membership, that Travis’ continued policy is the best thinks alleged having prior to the been admitted follow.” unions lis inferentially resignation shown sub- time, during October, 1951, continued sequent Travis had conver- In. witness affidavits were Gardner: filed. The time sation “ * * * briefly very of the evidence was left discussed his effect we factual Party, Eckert, tary Arnold Travis and the Communist besides attendance ' Secretary Foster, Johnson, National State Chair- Ohio Z. were William Equip- Eugene Party, Party, Farm and officials the Communist man Dennis, Union, Secretary, Gold, Furniture Workers Union Ben ment General Electrical, Radio, and Machine Work- and an the Central Committee member Union, John Union. the Fur Workers ers official Williamson, Trade Union Secre- National ques- might tion jury. body have had well Naturalization Service That Party ap- past member- tioned him his about unfavorable drawn an inference ship. Mason if asked pellant. The defense then v. United See Jencks again 547, 540, questioned on other he was that Service reversed 226 F.2d gov- 1007, grounds 1 about the same in 1952. The matter 353 U.S. objected question ernment as im- L.Ed.2d 1103. proper and counsel cross-examination urges Appellant Eckert’s The were heard chambers. defense testimony remote, in irrelevant was argued that it to show that the wanted proceed flammatory early in the because testifying. witness an had interest ings stipulate defense counsel offered suggested Counsel Mason that pro- knew Party member that Travis had been a Congress passed Act the McCarran August Eckert 1949 and from 1941 to viding deportation aliens on than an adherence could show no more grounds past membership Com- Party principles a until 1948. Since sought Party and asserted that it necessarily be man’s mind must state of agents government to elicit evidence that conduct, from his shown statements promises held out or threats to Ma- prosecution burden of dem bore gov- testify. son induce him to The onstrating of activities continuation a purpose ernment insisted that the performed those similar to and attitudes merely defense was to embarrass the during time of his Travis and held witness. The court then addressed de- the date of after admitted counsel as a member of Bar fense resignation. purported evidence The his if of the Court and asked he knew of zealously actively extensively, of how anything which substantiate would as member worked Travis had a charge. responded counsel Defense leadership in was clear his knowledge promises he had no or ly or of whether relevant to threats said he had been but informed resignation pretense. a mere during period pertinent the wit- that evidence Communist If it is true very concerned about his ness status tendency pro a has activities “going as an alien and around ask- prejudice, juries present-day toward voke ing people questions” about it. The court suppose that the atti it ridiculous to government objection then sustained the against public will crime tude of the stating did not think the infer- prosecution. prevent If evidence its promises ence that there were threats ordinarily probative value, it is ad has warranted. imagined regardless of reac missible Suhay jury, United tion of Cross-examination of witness Cir., 95 F.2d 890. right, Ottawa, a matter 3 Wall. 18 L.Ed. cannot insists that trial improperly circumscribed the courts where restricted his cross-examina- questions propounded prosecution are within witnesses al- tion of lowing framework of his to show that witness him Mason direct examination, government through except informant extent the wit was a deportation privilege claims and that himself ness consti fear of Eckert and organ- protection. However, tutional were members of labor the dem Gardner rival interests onstration of a witness’ bias to those of almost al ization Mason, ways requires As a search of his Mine-Mill. conduct situation, of his been a the circumstances that he had member of the showed period which facts irrelevant to the brief is early cross-examining important sues at trial but 1930’s. the liti Ma- against safeguard gants son, counsel false elicited the infor- defense testimony. Wigmore, Ill he had become colored Evi naturalized mation Prolonged digressions dence, prior § in 1938 and that to his nat- citizen pur- Immigra- hand the matters States uralization pose exploring 687, 218, and mor- 624; the manners 51 S.Ct. L.Ed. District als, hopes fears, and con- Clawans, beliefs 617, Columbia v. 300 U.S. personality flicts whose connection S.Ct. 81 L.Ed. 843. But cases these merely govern with the because of trial occurs do not the situation of the wit- readily position spectator his as can as present ness and, Mason in the case process justice fact, abort the as can de- reaffirm the of the view Blitz case right that, nial of the of cross-examination. in the absence of an of dis- abuse long Thus, cretion, it has been held that permitting the decision of or seeking scope excluding of cross-examination to dis- impeach- extrinsic evidence for may reasonably lim- purposes credit the be witness ment judge. rests with the trial by responsible ited the court for the trial As stated Wigmore, Professor new In Blitz United case. constantly present- circumstances will be 924, 925, suggestive 153 U.S. 38 ed personal as prejudice seeking question to L.Ed. where a trial court must determine wheth- impeach deputy per- marshal was not er conduct, language from the or cir- mitted, stated: the court palpable cumstances of the witness a hos- tility party to sympathy one or question clearly “The irrele- other is inferable. vant, properly and was excluded. reasons, they may have whatever The inference that the witness been, that induced the witness not to coercively Mason was testify influenced to arrest the when the latter defendant by power immigration over him held voted the second in the same time imagination requires officials ap be to light election, any upon did not throw plied disparagement appear of facts the issue object be determined. If the ing in the record. Mason ais naturalized accuracy towas test the citizen, subject deporta an alien credibility witness, quite it is tion. If permit wild surmise the deduc say sufficient to the extent tion that he had committed a fraud which a cross-examination application Mis citizenship conceal purpose especial- allowedfor such a ing — his in a subversive ly where, case, question inas group, might be used to return had no reference to matter dis- him status, conjecture to an alien such closed the examination-in-chief— dispelled by is his revelations to the largely subject to the sound dis- Therefore, Service in 1938. we find no court, cretion of the trial abuse part of discretion on the exercise of that not re- discretion is excluding trial court in toas upon error; viewable writ of cer- the witness’ more recent contacts with tainly question, upon not where the immigration officials. suggests nothing face, its material toAs the cross-examination inquiry whether the defendant urges Gardner, appellant of Eckert guilty guilty specific was error for the trial that it charged offense in the indictment.” objections questions sustain concern alleged ing classes of facts such Certain rivalries between Mine-Mill party relationship organization family employ to a have been the labor then and ing give strongly inferences rise to those witnesses. The trial court held so two ruling expressed and bias the witness’ interest matter relevant any possible room for an exercise no leave view that inference toas admissibility. Wigmore, showing Ill from a of such drawn discretion could Among always Evidence, rivalry these would be too to be rele remote § arguing error, ap the fact circumstances is vant. this was admissible prosecution proposi pellant under witness cites authorities for custody proper scope time within tion that it is indictment trial, Alford v. United U.S. of cross-examination show Travis, brought against employer,8 action it testifying his is for is witness against appellant the not Mine-Mill. What interest in employer an has his that rivalry by firm asks show law is he be allowed to the recovery,9 employed is impute test between the Unions in order whom he party for representing the prejudice against wit- to the employer Mine-Mill is busi ifies,10 or when his against jury infer ness and the party then asks competitor of ness against It deci therefrom Travis. cites a bias also He he testifies.11 whom reversible error to restrict cross-examina- it effect to the of this court sion slight having only questions tion employment of proper probe bearing credi- adjuster indirect the bias and on where he witness bility pos companies, of of Columbia a witness. District group of fire insurance cor- Clawans, supra. ac v. court suit, The trial sibly where the interested in the rectly re- negligent in too sought damages ruled that tion However, none mote be admissible. of a furnace.12 stallation appel gone far as so of those cases has complains next go Each of those here. that we lant asks concerning jury to the instructions in which action civil cases meaning membership in affiliation out in employer interest some argues Party.13 He with Communist criminal is a of the suit. But this come only mind can Lott, Lines, “Intent is a state 5 v. 8. Central Truck Inc. says by an individual what determined 249 F.2d 722. determining the does. In what he Majestic Co., Cir., 9. R. Louisville & N. issue whether defendant as to 147 F.2d 621. or Party member of the was not a Communist alleged indict- times at the Lexington 10. v. Zurich General Glass Co. ment, you may into take consideration Liability Co., Ky.App., Acc. & Ins. defendant, as acts this and statements of S.W.2d 909. evidence, bearing in mind disclosed and unrelated isolated Manley individual 11. County, v. Northumberland D.C. coopera- showing acts of M.D.Pa., the defendant F.Stipp. 775. Party tion or isolated with Communist 12. Theurer Co., v. Holland Furnace showing statements sympathy the defendant Cir., 124 F.2d 494. Party are with the Communist in conclusive evidence of themselves jury 13. trial instructed the as membership but are circumstances which follows: you along may into take consideration “Whether or not defendant was a with all the other evidence in this case. Party member of the Communist at the determining “In whether not the de- or alleged ques- in times the indictment is a fendant was a member the Communist you tion of fact which are determine Party alleged times the indict- in from all of the evidence in the case. In ment, you take into consideration determining question you must bear whether defendant: made 1. Has proof in mind that the burden of rests subject discipline himself to the of the prove on the Government to the defend- Party any in Communist form whatso- guilty beyond ant a reasonable doubt. ever; orders, plans, Has executed 2. Membership membership or lack in any or directives of kind of the Communist Party may the Communist be established Party; agent, acted 3. Has as an by direct as well as circumstantial evi- messenger, correspondent, courier, or- dence. any capacity ganizer, other be- or “Membership Party, in the Communist Party; membership half of the Communist 4. Has any the same as other (cid:127)organization, or conferred with officers other members the state constitutes of be- ing person (s) belong one of behalf the Communist those who comprise enterprise organiza- Party. any plan to or the Communist accepted mutuality tion; It connotes a knowl- status been to his Has between 5. organization. edge the individual or member of the Com- and the officer That as an say, present is to there as one to be called must the de- part upon sire long other officers or services individual to be- organization; Has and a members of rec- ognition by way spoken written, considers by signal, sign, semaphore, him as a member. communicated “membership” the definition appeál.14 used first The instructions embracing meaningful court was all They so included and clear. vague destroying meaningless as to be the 14 indicia of outlined consequence any by Congress between distinction Commu Section 5 of the “membership” and see “affiliation.” We nist (50 Control Act of 1954 U.S.C.A. no 844) substance to this contention. emphasized primary § ele charging respect suggested ment of Mr. membership as components Party mem- of Communist Justice Burton in Jencks v. United bership and court affiliation the trial 1007, 1019, 657, U.S. 1 L.Ed. carefully this followed the 1103, directions 2d present “the there must expressed opinion in the belong desire an individual any or in other communication indictment, form of and fourth as counts of the orders, directives, plans or of the Com- you you, I have outlined them to then Party; prepared munist docu- 7. Has guilty must find the defendant as to pamphlets, ments, leaflets, books, any or first and fourth counts. type publication other “If, in behalf of however, you find that the Gov- objectives purposes and or- of the ernment has not sustained the burden of ganization; mailed, shipped, proving beyond 8. cir- any Has a reasonable doubt culated, distributed, delivered, or in the defendant was a member Com- way other Party alleged sent or delivered to others munist on the dates in the any propaganda indictment, you material or kind be- then him must find not organization; guilty half of ad- 9. Has as to the first fourth counts. “ vised, any way counseled or other im- ‘Affiliation’ as used in the second parted information, .suggestions, recom- and fifth counts of the indictment not membership. to officers or mendations members the same as word ‘af- The Party anyone filiated,’ Communist or to else in as used in the second and fifth objectives organiza- of the indictment, behalf of the tion; counts of the means a rela- word, tionship indicated ac- 10. Has short of and than less member- any tion, conduct, writing way ship other Party, or in the Communist but more any willingness carry sympathy a out in manner than that of mere for the aims any degree plans, designs, objectives Party. ob- Communist o.f jectives, purposes organiza- person may or “A be found to be ‘af- tion; par- way organization, though 11. Has filiated’ with an even ticipated activities, planning, member, in the ac- a not when there is shown to- tions, purposes objectives, working or of the or- be a close alliance or associa- ganization. organization, tion between him and the together understanding with a mutal “These are of the indicia of some Com- recognition organization can Party membership you munist but are not rely depend upon cooperate him to solely limited I have those enumerated. it, benefit, with and to work for its your As sole arbiters of the facts it is period upon fairly perma- an indefinite a duty to consider all the evidence either nent basis. upon direct or circumstantial which bears “ ‘Affiliation’ includes element of de- of whether or not the de- upon organization pendability which the fendant Party was member the Communist rely which, though equivalent not alleged can on the in the dates indict- membership duty, upon does rest a course ment. abruptly could not be of conduct that end- determining question, you “In this must giving a ed without reasonable cause for proof bear in mind that the burden of good charge of a breach of faith. upon prove rests the Government not the defendant “Whether or was af- guilty beyond the defendant a reason- filiated with the Communist at the you able If doubt. find that the Gov- alleged ques- in the indictment time ernment has sustained this burden you, gentle- tion of fact ladies and beyond proving doubt, a reasonable men, are to determine from all the evi- the defendant was member of the Com- dence in the ease. Affiliation lack of 19, on December Party may the Communist affiliation in 3, 1952, alleged December dictment, as in- be established direct as well as cir- you and if find also that (Record evidence.” cumstantial 1228— proved beyond' Government has a rea- 1230.) sonable doubt the other essential ele- charged ments of the pages offense in the first F.2d 135 and 136. argu- recognition by clearly organization structions contravene this organization him ment: it considers adequately crucial outlined “The issue of fact in member.” This evi- case whether on considered December that could

kind acts 3,1952, and December Maurice included dence of continuing reciprocal rela- Travis not then E. or was idea of tionship necessary member that status. Communist party. affiliated with such Travis’ told that upon call “The affidavits do not Party at membership in Communist any person to state whether or alleged in the indictment times past he ever been a mem- has the evidence from “ail to be determined ber or affil- and that case” person iated it. A who has solely consideration limited past been time in either at some the by membership enumerated of indicia Party or a member the Communist of way indi However, in no court. this contends, the affiliated but who with that cates, the appellant that membership or has terminated such jury consider free to told it was was making prior of affiliation the proof anything of member evidenceas sign affidavits would be entitled to clarify: ship. went on to The court “ * * (cid:127)* the affidavits under oath without vio- lating your duty consider it is * * * the law. which bears all the evidence upon speak “Since the in the the affidavits whether or not the of present only, tense the fundamental a member the Commu- was of defendant nist alleged you fact for is in the issue of to decide dates on the alleged added.) (Emphasis Fur- whether not the times indictment.” thermore, presumed the defendant that the indictment it must be knowingly wilfully affi- and jury, used careful instructions after such per- he membership, davit which false which components was and the fectly

capable separating time. evidence knew to be false at that not the case. argues as the isolated acts evidence which does not. single which tends structions left basis items of for their or statements They prove membership from connection that were instructed jurors findings. standing were free to use Such circum- the alone that was also in- may such any fact or facts ence of guilty “You ^[*] other fact or circumstance. presumed not infer from may ^[*] fact and then infer not of the offenses that # fact presume the defendant the ^[*] any existence the ^[*] presumed charged exist- from You ^[*] they consider, indictment.” could but were stances were not in them- cautioned that these urged It the trial membership proof of selves conclusive bearing should have clarified what only in connec- to be considered and were pre-affidavit post-affidavit and evi evidence, with the other tion guilt it dence had on should weigh bearing all the evidence were pointed out which evidence rele have was gov- issues, and that the on the crucial agree. do affidavit. We not vant each proving ernment retained burden required court should to em The phasize guilt beyond a reasonable doubt. portions particular of the evi any merit to the require there conten- sug Nor is To trial courts to dence. jury jury left infer gest free to the inferences tion which signing membership at the time from the evidence be drawn would appellant’s past Party error. Radius v. invite Travelers be to affidavits Further, Co., 9 87 F.2d 412. or from the conclusion Ins. resignation province not honest. in- an invasion of The would 944 jury judicially judgment measure the trial ness court’s eliminating jury weight of circumstances which the it from consideration Majestic equally as defense. can well. determine Co., Cir., F.2d 147 & N. R. Louisville Supreme The United States Court has decisions, held recent Palermo v. Unit- alleged refusal Further error is ed 360 U.S. S.Ct. requested give court to several Rosenberg 3 L.Ed.2d v. United lengthen this instructions. We shall not opinion U.S. many discussing appellant’s L.Ed.2d 1304 that con- Section 3500 is regard. It is suffi- contentions in this rights governs stitutional given say instructions cient to that the production documents defendant to the jury complete proper. to Moreover, prosecution. Further, in the hands of the admonished approved inspec- the court camera safeguards particularity all the as to proper tion the trial court as properly surround determining should criminal procedure to be followed in rejected prosecution. instructions application par- statute charge proper added no sought by defense. ticular statements given actually there covered those compar- carefully have examined We refusing give them. was no error in complete the docu- ed the documents finally to government ments as were submitted After each of the witness- only the the defense conclude that and at es had on direct examination testified portions and related to matters excised trial, appellant prose- the moved that the present persons the produce reports not connected with required cution to all by case. previously those statements made agent govern- any of witnesses the skillfully an- appellant has Counsel for provided ment under 18 § as U.S.C.A. great many problems which ticipated a granted 3500. The motions were but yet the administration arise before will government since the claimed that the by prece- of is stabilized Section of statements each witness contained problems are not these dent. Most of subject matter not related to the matter present ripe under for made decision testimony witness, of his trial as a ease. court, pursuant 3500(c), ex- to Section suggests that the trial court amined the in camera statements delegated prosecution responsi- to the its de- excised the unrelated matters before livering bility for the determination of or whether appellant. them to not certain documents contained “state- Appellant’s claims purview anent ments” within the of Section constitutionality 3500(e) of section 3500 were which should be made available fully case, supra. examined in the Sells to the He defense. if the contends that availability prosecution Inasmuch the de part determines that no of a by govern held fense documents subject statement or, relates matter does, ment is under the limited decision if it is not a “statement” States, 414, Gordonv. United (e), U.S. 73 as defined in subsection then the trial 369, 447, S.Ct. L.Ed. v. inspects Jencks court never the statement at all 657, 353 U.S. preserved it is for the record. appellate 1 L.Ed.2d only matters relevant part “There is review if testimony of a witness for of a document is withheld from the de- prosecution, merely pro fense; Section 3500 none, if the entire document is by procedure problem vides the which that rele withheld.” This was foreseen may

vancy deprives be determined Supreme the United States Court nothing case, the defendant he supra, which pro- the Palermo and the formerly course, government entitled. Of the duction doubtful portion writings of a statement excised must be and in camera determination subject for to test the available review correct- matter and whether it comes any of “statement” of deliberations and the definition vote of within the juror (e) approved. may attorneys rul- This be made to the subsection ing, government appellant however, for aid does use in performance merely that the three of their the record shows witnesses, Eckert, duties. Other- Gardner, Mason, juror, attorney, wise interpreter attorneys in government stenographer may or disclose matters talked had preparation occurring grand jury only that Eckert case and before for this investigator pre- a con- when to an so talked directed court subject liminarily gressional or in committee. connection with a judicial proceeding permit- and Mine- Travis when these conversations nothing Mill, the record request ted there is but showing upon had in these defendant that these witnesses indicate ap- grounds signed, adopted written, exist for a motion instances recording any writing any or that proved dismiss the indictment because of occurring grand made any statement matters oral made before * ** jury. agents. presumed that It to these agents made sum- notes or took these It has been held that instances with the their conversations maries grand when the need for disclosure interpretations would but such witnesses outweighs proceedings the counter properly could “statements not be vailing policy maintaining secrecy words,” Paler- own the witness’ be called proceedings of such must be shown with witnesses v. United mo particularity, United States Procter & signing adopting such denied Co., Gamble 356 U.S. 78 S.Ct. statements. L.Ed.2d The burden is on production particularized “a Appellant moved for defense to show out or need” for the before one exists minutes which witnesses’ the Pittsburgh weighs juries. theory policy secrecy, grand of that the more States, supra. decision, v. Plate Glass Co. v. United Jencks Jencks either the Act, portion States, Thus, supra, or the where some of a defend Jencks United grand jury impeached 3500, encompasses testimony by the was ant’s Section Pittsburgh grand government’s testimony jury her in of testi use discarded mony, 360 U.S. it held that the trial Plate 395, Co.v. United has Glass been 1237, inspection Un- all 79 S.Ct. 3 L.Ed.2d 1323. court make of should appellant case, however, testimony purpose the dis like the in that her of of closing appellant use here moved the for in- to the other inconsistencies spection grand jury co-defendant, as a H. minutes United v. of States right alternatively Cir., Corporation, or matter to have K. J. Theatre produced cry minutes for the ex- re the court’s this a far from F.2d but in- quiring amination determination the whether court to examine all trial of appeared testimony consistencies between wit- the the of of the witnesses for all grand testimony jury hope ness’ the of prosecution upon before the defense’s testimony inconsistency. and his at trial. uncovering thereby some prior wit of these In view statements Thus, par- the the here is one defense, to nesses made available the ticularly Pittsburgh left the undecided suggestion appeared no there which case: Plate Glass Whether the trial court inconsistency, unlikely it that material granted may, in the discretion him under grand jury occur their statements 6(e), Procedure, Rule Fed.Rules Crim. 18 ring giving at a time between the U.S.C.A., transcript refuse to examine the statements consistent state such grand jury requested of the when to do produce upon impeach trial would ments provides: 6(e) so. Rule ing material. shows inaccura testimony occurring “Disclosure of the witnesses matters in the cies grand thought jury (i. the other than he before its e. Gardner had testified actually “merely prior week but thwart the the case the attainment of another earlier; Congress sought accomplish end Eckert to was two weeks previous Paragraph 9(h).” occasions the on seven enactment testified testimony as against See Sells v. Mine-Mill but his United nothing precisely on same F.2d 815. But the not there Is details was legislative occasion; history 9(h) in- Gardner’s each Section Congress reports which dicate that the not entertained shown trial F.B.I.; perjury inappli- view Mason stated he rule was made prosecutions en- he was “unable cable to under Section the F.B.I. large” appellant, Judge about Section 1621. Bazelon on information See feeling specific case, gave informa- Gold Note trial 17. While but at give might myself pronouncements well ; bound tion) these inaccuracies concerning my argument case, wit- court in the re- I cannot Sells rise to' powers expressing hope of observa- frain from nesses’ memories to the defense such kind. available the law cases tion which gov- produced the materials I would remand reverse this case and They not demonstrate do ernment. it for a new trial the refusal of believing the witnesses’ reason for grand jury trial court to examine the impeachable on testimony biased camera, evidence in to determine wheth- compel They do material fact. secrecy ought er the lid of lifted testimony before that the conclusion proper interest of administra- investiga- grand jury requires further justice. tion of criminal We know tion. grand jury testimony may disclosed only showing upon particularized re permission Since need, showing burden of grand inspection of a defense fusal seeking if it. But need is on one in the discretion jury rests minutes any efficacy, rule is have its bur- Socony- court, States trial ought not to dens be insurmountable. Co., 310 U.S. Oil Vacuum showing lay How then the accused a foun- since no 811, 84 L.Ed. requisite inconsistency particularized need dation for when of a made he mainte does not have access grand minutes Pittsburgh except defense, Plate other means cross-examina- nance something States, supra, hope hold we tion in the will United v. Glass Co. up its dis abuse turn ? our case the cross-examina- court did trial production prosecuting failing tion of the dis- order witnesses cretion where case had in numerous jury in this closed that testified grand minutes kind, from arisen cases grand well as before have difficulties plethora. jury its which had ac- indicted the but paucity of evidence cused. There inconsistencies were some Affirmed. given testimony they in the open proceedings. Judge (dissenting). MURRAH, Circuit But there was no con- showing way particularized ceivable apply per place, I would first In the get accused could need unless the jury so the reasons well stated rule grand jury testimony before court. Judge Bazelon in Gold United v. U.S.App.D.C. F.2d for these It is have reasons that we charge case, judicial false in that As to the trial committed court the 764. swearing, determining parte indirect evidence is indeed ex function wrhether circumstantial, my judgment the stantially of the witnesses is sub assigned only And, reason inconclusive. consistent. the inapplicability important ancient exercise that cannot function requiring perjury something accepted rule direct unless wit he knows guilt, testimony. positive evidence of It nesses’ would seem there kind, application erroneously its of this would fore that the trial court cases judicial prejudicially to take a refused testimony. Cf. grand look at Cir., 258 Spangelet, 2 United v. States that we would F.2d 338. It grand jury having justified testi here, as mony examination certified Lev, 2 v. United was done in States certainly done, I it is Unless 9. F.2d error harmless say can’t it it.

refuse to look only important, not case is This guiding precedent here, but as

accused can we do not believe I in other cases. saying by simply dispose of the harmless. TYNDALL

Preston Lee CORPO- AND FOUNDATION

CONDUIT RATION, Appellant.

No. 12875. Appeals Court States Circuit. Third

Argued June 31, 1959. Aug.

Decided

Case Details

Case Name: Maurice E. Travis v. United States

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Aug 21, 1959

Citation: 269 F.2d 928

Docket Number: 5879

Court Abbreviation: 10th Cir.