Killian v. United States

PETITIONER: John Joseph Killian
RESPONDENT: United States
LOCATION: Allen-Bradley Clock Tower

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 368 US 231 (1961)
ARGUED: Oct 10, 1961
DECIDED: Dec 11, 1961
GRANTED: Feb 20, 1961

Basil R. Pollitt - for the petitioner
David B. Rothstein - for the petitioner
Kevin T. Maroney - for the respondent

Facts of the case

John Joseph Killian was an employee at the Allen-Bradley Company in Milwaukee, Wisconsin, and a member of Local 1111, United Electrical Radio and Machine Workers of America. From October of 1952 to February 28, 1953, Killian served as an officer of Local 1111. On December 9, 1952, the president of Local 1111 ordered all officers to come to the union office to execute affidavits stating that they were not members of the Communist Party, in accordance with the Taft-Hartley Act.

As early as the fall of 1949, Killian was a member of the Communist party group on the campus of the University of Wisconsin and in the city of Madison, Wisconsin. Killian held a number of the group’s meetings in his home. Government witness Sullivan transferred his Communist Party membership to Madison in October 1949; Killian contacted him in his role assigning individuals to Communist Party groups or cells. In November of 1951, Killian and others formed a Communist Party cell to operate within the Allen-Bradley plant. Killian suggested to a government witness and co-worker, Ondrejka, that both should become stewards of Local 1111 to advance party aims within the union; both subsequently became officers and participated in union meetings.

Killian was charged with making false statements in an affidavit. At trial, both Sullivan and Onrejka testified that they joined the Communist Party at the request of the Federal Bureau of Investigation. On cross-examination, Sullivan and Ondrejka testified that the FBI paid them monthly amounts for their services, and were reimbursed for expenses incurred in Communist Party activities. Killian moved for production of all statements given by Sullivan and Ondrejka to the FBI, with a particular focus on reports made by Ondrejka of his reimbursable expenses and receipts signed by Ondrejka; Killian requested this evidence to impeach the witnesses’ testimony. Killian also moved to strike both Sullivan and Ondrejka’s testimony. The government instead offered to produce a list showing the dates and amounts of payments to Ondrejka and whether each payment was for services or expenses. Killian refused this substituted evidence, and the district court denied Killian’s motions. The United States Court of Appeals for the Seventh Circuit upheld Killian's conviction, holding that the district judge properly excluded the requested reports and receipts because they were not related to the direct testimony of the witnesses.


(1) Was the prosecution properly excused from producing statements and documents that reported payments to prosecution witnesses?

(2) Did the jury instructions properly define membership in the Communist Party?

(3) Did the jury instructions properly define “affiliation”?

Media for Killian v. United States

Audio Transcription for Oral Argument - October 10, 1961 (Part 1) in Killian v. United States

Audio Transcription for Oral Argument - October 10, 1961 (Part 2) in Killian v. United States

Earl Warren:

-- continue.

David B. Rothstein:

Mr. Chief Justice, now, I just want to summarize in a few minutes the -- what we feel we could show if the case were to be remanded in District Court conducted a hearing.

We think that we show generally the facts that have been discussed earlier with respect to the existence or non-existence of any statements or reports and in addition, the receipts themselves which we concede our statements but which we contend are too remote in the circumstances of this case to be held to relate to the direct testimony of the witness.

Now, these receipts would only show two things, most of them would only show amounts of money paid.

The nine would show amounts paid and in addition, certain itemizations.

Now, the amounts paid on all the receipts would be reflected and is reflected in the schedule that the Government offered to produce and which was refused by the defense.

Moreover, all the testimo -- all that would be shown by these receipts, as to payments received, was already in the record in the form of the direct testimony or the cross-examination testimony of the witnesses, both of whom had, as we indicated earlier, readily acknowledged that they had been paid for services and expenses and they gave the amounts that they had been paid.

So that the receipts, insofar as they reflect money received, could not be further used to impeach the impeaching testimony already given by the witnesses.

Now, in addition, as we've also indicated, we -- we feel that -- that we can show and that there is substantial reason to believe that the trial court upon examination of the itemizations would agree that considering the overall testimony, considering the nature of these receipts and the itemizations listed, would agree that the items do not relate sufficiently directly to the matters testified about -- by the witness on the -- on his direct examination.

Moreover, even if in the two respects in which we have suggested in our brief, at pages, and we've discussed them at pages 33 and 34, that two or three of the itemizations in these receipts might, in a very general sense, be considered to have related to direct testimony to matters about which the witness testified.

We feel that there is good ground for the argument that any error, if there was error, in that turning these itemizations over, was harmless and that there was no possible prejudice to the defendant in not having had access to these particular itemizations.

And of course, the reason, primary reason for that is that he had the narrative reports that the witness had furnished to the F.B.I. concerning these very activities.

William O. Douglas:

Discuss the -- discuss the membership --

David B. Rothstein:

Yes, sir.

William O. Douglas:

-- involved.

David B. Rothstein:

Yes, sir.

Now, for those reasons, we think that the Court should remand to the District Court so that a full record can be developed with respect to these matters and of course, the petitioner again as or would have recourse in the event of an adverse decision in the District Court to the appellate process.

Now, on the question of the Court's definition or instruction to the jury of membership, what constituted a mem -- membership?

William O. Douglas:

May I ask at the beginning that you can answer this at any time you'd like.

I don't see a discussion in your brief why we should adopt here a different test of membership under this statute than the Court adopted in Scales case that was foreshadowed by Yates neither of which are discussed in your brief, you can come at that --

David B. Rothstein:

You mean the activity fact?

William O. Douglas:


Why -- what the Court was -- what it's paying in the Scales to indicate that your nominal membership, passive membership could not have been within the purview of the Smith Act and there were passages indicating the constitutional overtones of -- that were present there and I -- I wondered why -- why that isn't discussed here?

David B. Rothstein:

Well, Your Honor, I think that the purposes and effects of the statute are different and bring into play different considerations on the First Amendment.

William O. Douglas:

Well, maybe so but I mean --

David B. Rothstein:

But I think --

William O. Douglas:

-- but it isn't obvious.

David B. Rothstein:

-- basically, basically, the fundamental distinction is that under the Smith Act, the -- the membership with the other elements is the -- is a criminal offense.

Whereas, this statute that we have involved in this case --

William O. Douglas:

Or statement statute but it rests on sta -- stating that you're not a member when you are.