Killian v. United States

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

DOCKET NO.: 7
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

ADVOCATES:
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.

Question

(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”?

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:

Yes.

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.

David B. Rothstein:

That’s — that’s right, sir.

William O. Douglas:

But it come back —

David B. Rothstein:

But the statute itself, the statute —

William O. Douglas:

— come back to the question of what is membership.

Is it active?

Is it passive?

Is it any kind?

Is it nominal?

Would nominal membership be sufficient?

David B. Rothstein:

I think, Your Honor —

William O. Douglas:

Would a member —

David B. Rothstein:

— that a — that a definition of membership similar to that —

William O. Douglas:

Would a membership —

David B. Rothstein:

— do it in no way —

William O. Douglas:

— suppose you’re —

David B. Rothstein:

— would be the appropriate (Voice Overlap).

William O. Douglas:

Suppose you — suppose you had proof that a membership — the — the membership of a particular individual was membership because of his — his belief in some wholly lawful activity of the party and his renunciation of illegal activities in the party, would that be enough?

We — we —

David B. Rothstein:

I think if he was knowing purposeful membership that would be enough under the statute.

It was his (Voice Overlap)–

William O. Douglas:

The Government had presented in the Scales case too, but didn’t succeed that.

David B. Rothstein:

Well, I —

John M. Harlan II:

(Voice Overlap) different kind of a statutes in Scale, is that your point?

David B. Rothstein:

That’s right, sir.

Scales —

John M. Harlan II:

(Inaudible) Scales had do to with membership in an organization that was devoted and only that kind of membership, it had (Inaudible) Government by enforcing violence —

David B. Rothstein:

Yes.

John M. Harlan II:

— it does membership in the Communist Party hearing?

David B. Rothstein:

That’s right, sir.

And of course, the statute does not say —

William O. Douglas:

It’s the same party —

David B. Rothstein:

— (Voice Overlap) membership in the communist party.

William O. Douglas:

It’s the same part —

David B. Rothstein:

The statute —

William O. Douglas:

— it’s the same party though, isn’t it?

David B. Rothstein:

That’s — that’s right, sir.

But the statute — the purpose of the statute is to impeach so far as possible the Communist Party as an organization from exercising influence in labor unions in such a fashion as to put it in a position to interfere with interstate commerce.

The statute is not directed primarily and its purpose is not against the individual member.

William O. Douglas:

But how about the oath provisions of the — of this (Voice Overlap)?

David B. Rothstein:

Well, the oath provisions, of course, refer to an organization that teaches and advocates the overthrow.

William O. Douglas:

While — the ones that (Voice Overlap) the one that —

David B. Rothstein:

So that you would have to show knowledge one part of the person.

William O. Douglas:

One that we — one that we have in the Douds case.

You construe the oath provisions.

It’s not parallel to the membership provisions of this Act?

These are large questions.

I don’t think (Voice Overlap).

David B. Rothstein:

Well, Your Honor, I think that — the statute deals with two things, membership and the party, for our purposes anyway, membership and the party or membership in an organization which teaches and advocates a violent overthrow.

Now, the Congress found that the Communist Party had reason to find it.

Communist Party was of — of such a nature that it likely would interfere with interstate commerce through exercising its influence over its members who were union officers.

That is the — is the legislative basis for the statute.

In a situation where you had an organization which teaches and advocates the overthrow and — and the member signing the affidavit, of course, it would be a question of proof, you would have to show knowledge that the person executing the affidavit had knowledge that the organization of which he was a member did teach and advocate.

I don’t think that’s necessarily so where the Communist Party is concerned with respect to Section 9 (h).

Now, I — I think the problem that you can’t show —

William O. Douglas:

Well, how about — how about subdivision (11) of Section 5, “Has indicated by word, action, conduct, writing, a willingness to carry out in any manner and to any degree of plan, of objectives or designs”?

David B. Rothstein:

Well, the —

William O. Douglas:

Those designs, objectives may not be unlawful that they may have lawful objectives, is not that right?

David B. Rothstein:

Well, the — these, of course, are only some of the criteria which the Court instructed the jury, can —

William O. Douglas:

I understand.

David B. Rothstein:

— or should be taken into consideration.

David B. Rothstein:

I don’t think that — I mean, many of these, standing along, would not support the ultimate conclusion that the person was a member because he did one of these things.

But these are certainly rational criteria to take into consideration in coming to the conclusion of whether or not an individual was or was not a member of a particular organization.

The fact that he attended meetings, the fact that he was an officer, the fact that he executed orders, the fact that he submitted himself to discipline of the organization, all those things, I think as a — as a matter of logic, should be taken into consideration by any fact finder in deciding whether or not the particular defendant was a member of the party.

And of course, I think contrary to what has been argued by — for the petitioners and in certain respects by the amicus, the Court did not permit the jury to conclude that membership was proved by anyone of these elements.

William O. Douglas:

Yes, but they denied instructions.

The Court denied instructions that would have as taken out of the jury’s purview the issue of nominal membership or passive membership.

David B. Rothstein:

Well, they didn’t — they didn’t, as I understand, they didn’t ask for that instruction, Your Honor.

They asked for an instruction —

William O. Douglas:

Well (Voice Overlap) not — not precisely the phraseology of Scales but in substance whether or not it was — it was active or whether they were — they merely adhere to lawful activities.

David B. Rothstein:

Well, as I understand their requested instruction, it was.

William O. Douglas:

You — you find it, I just read that it’s —

David B. Rothstein:

It was to the effect that they wanted the Court to charge the jury that they had to find that he was devoted to the unlawful objectives of the Communist —

William O. Douglas:

Well —

David B. Rothstein:

— Party, the teaching and advocacy of overthrow.

William O. Douglas:

There was that — there was that also.

David B. Rothstein:

And we don’t know the statute requires that, un — under this Court’s decision in Douds.

I think that it — it must be a meaningful knowing full membership.

It can’t be at nominal membership.

I think the (Inaudible) principle is probably more comparable to this situation than is this Court’s decision interpreting the Smith Act under Scales.

Thank you.

Earl Warren:

Mr. Pollitt.

Basil R. Pollitt:

Mr. Chief Justice and —

Felix Frankfurter:

Where you at the trial, Mr. Pollitt?

Basil R. Pollitt:

No, I wasn’t, Your Honor.

Felix Frankfurter:

But you can tell me — was —

Basil R. Pollitt:

I know this record are used to pretty well before I stopped there.

Felix Frankfurter:

— was there a consecutive — was there a charge by the trial court other than granting of request respectively by the — by the defense and the prosecution?

Did you make a consecutive charge with the jury at anytime?

Basil R. Pollitt:

No, the various request for —

Felix Frankfurter:

Yes, but —

Basil R. Pollitt:

— but there was no — I —

Felix Frankfurter:

A part from —

Basil R. Pollitt:

I had to —

Felix Frankfurter:

— my question was whether apart from submissions for request to charge, apart from request to charge, some of it he granted, some of which he didn’t.

Basil R. Pollitt:

Apart from —

Felix Frankfurter:

Apart from the things that he granted, did the judge make any — give any charge of his own?

Basil R. Pollitt:

I think it would be a fair statement that outside of some of the foreign books of charges, instructions that concur at every charge —

Felix Frankfurter:

But — but they — none of them originated from him, they were all submitted by the party.

Basil R. Pollitt:

I believe so.

Felix Frankfurter:

So that nothing originated from him.

Basil R. Pollitt:

I’m informed, that’s correct.

Felix Frankfurter:

And he just have charged about circumstantial evidence, the next about affiliation and the next about informer and they wholly unrelated tidbits, pieces and —

William O. Douglas:

As I read the record, they were handed up of separate sheets and he —

Basil R. Pollitt:

Yes, Your Honor.

William O. Douglas:

— he rejected some and took others and — and read them all to the jury.

Felix Frankfurter:

But he — but he didn’t weave it into one charge, is that correct?

Basil R. Pollitt:

It’s a reasonably disjointed charge, Your Honor.

Felix Frankfurter:

Pardon me?

Basil R. Pollitt:

It appeared to me that reading it in the record that it was — is disjointly charged.

Felix Frankfurter:

That’s — it’s bits and pieces, bits and pieces and nothing of his own.

Basil R. Pollitt:

Well (Voice Overlap) —

Felix Frankfurter:

And nothing of his own (Voice Overlap).

Well, it is —

Basil R. Pollitt:

That’s — that’s not quite fair, nothing of his own composition.

Felix Frankfurter:

I don’t mean — I don’t mean he did not — he — I seem to have difficulty in making myself clear.

Both sides handed up request to charge.

He denied some and granted some.

But apart from the grants that he made, nothing originated with him.

Basil R. Pollitt:

Yes, Your Honor.

Felix Frankfurter:

Alright.

Basil R. Pollitt:

The —

John M. Harlan II:

Is the whole charge printed however —

Basil R. Pollitt:

Nothing (Voice Overlap) —

John M. Harlan II:

— is characterized?

No, not printed, is it in the — in the minutes?

Basil R. Pollitt:

It’s in the minutes.

Felix Frankfurter:

But —

Basil R. Pollitt:

Past the request to charge.

John M. Harlan II:

And didn’t he start off by — I haven’t looked at it yet but isn’t it a charge in the conventional form when you agree with the charge or not?

As you say now it’s my review, instruct the jury and then go on?

Felix Frankfurter:

No, that’s the answer.

Basil R. Pollitt:

Well —

John M. Harlan II:

You say he does not?

Basil R. Pollitt:

Well, it appears — it appears that he would read the following charge was submitted by —

Felix Frankfurter:

Have been requested and I grant it?

Basil R. Pollitt:

Yes, it was requested and I grant it.

Charles E. Whittaker:

You mean — you mean he told the jury I have been requested to give certain charges and I’d give them or deny them?

I’ve read the charge —

Basil R. Pollitt:

I’m informed that’s not the case, Your Honor.

Charles E. Whittaker:

— it does not say that.

Could you (Inaudible)

Felix Frankfurter:

I’d like to be clear about this because the document that is on file with this Court contains no consecutive elocution by the judge to the jury.

It merely give respective bits that there was submitted respectively by the — by the prosecution and by the defense, isn’t that correct?

Kevin T. Maroney:

If that is my memory, sir.

Felix Frankfurter:

Well — but just look at the document.

Why do you — do we have in your arms up on a memory.

Hugo L. Black:

Have you jus — justify that it’s (Inaudible) on the point (Voice Overlap) appear.

Kevin T. Maroney:

Yes, specifically we did not inform the crowd or did not inform the jury that I have allowed this one or rejected that one.

We read them one after the other.

Felix Frankfurter:

Without — without any relation of the different parts to one another except that is they all have to do with the case.

Felix Frankfurter:

At least that’s the way they appear in the stenographic minutes.

I don’t know what — that’s why I’m asking counsel what present — what took place.

Kevin T. Maroney:

I think — I — I trust the minutes accurately reflect this fact.

And my memory — if my memory actively reflects the fact but I would want (Inaudible) I suppose.

Earl Warren:

Mr. Maroney, do you — do you agree with counsel that the — that the instructions, as they appear in their transcript, reflect what actually happened?

Kevin T. Maroney:

Well, I’ve — I’ve no reason to think otherwise, Your Honor.

Earl Warren:

Yes, well that’s all we could answer.

Basil R. Pollitt:

With brief reference to Section — to number 11 of the indicia which we used in argument to highlight a pervading error of all the indicia, I’d simply like to say in response to the Government’s argument that it’s my understanding of the Stromberg case, the Herndon case and the Winters case that when First Amendment — the First Amendment rights of the defendant maybe entrenched upon, the question is not whether or not there is evidence which supports the verdict but whether or not under the instructions, the jury could have rested its verdict on those First Amendment rights, which I think is the case here.

Turning briefly to the question of Section 9 (h), the purpose and the meaning of membership in that Section, the forepart of the oath seems on it’s face provide for guilt by association and that was argued before Your Honors at one time.

And to violate the doctrine that guilt is personal because members, all members of the Communist Party seemed to be denominated.

But as I read the opinion, the various opinions in Douds, if the oath is to be upheld at all, it can only be upheld because the kind of membership and the kind of affiliation involved involves a personal commitment to the political strike.

That was what we ask the Court to give and that was refused and we submit that the definition of membership and I might add the definition of affiliation, both of which fall short of that personal commitment.

That — I beg your pardon.

I don’t mean personal — I mean personal and organizational commitment, organizational involvement which means that personal commitment.

And if it fall short of that, it doesn’t meet the standards laid down by any of the six Justices on this Court who voted to uphold the forepart of the oath.

Turning now to the notes, the memoranda of which were destroyed, first of all, we’d like to clarify any doubts that maybe about — as to our position.

This was evidence.

This was produceable evidence before Jencks, produceable evidence after Jencks.

In the argument of (Inaudible) which requested in your opinion, Mr. Justice Brennan, but the one, the Government conceded that we could, at all times, have called the F.B.I. agent who took these memoranda.

And since these memoranda were made in the regular course of business, it’s his duty and his practice to make such memoranda.

We could have subpoenaed those memoranda.

So that it was evidence that the Government destroy even before Jencks.

Of course, under Section 3500, the Government concedes that these notes could, these memoranda could have been within this Section.

And once that concession is made, under the Campbell case decided last term, if those notes had existed, it would’ve been the duty of a trial judge to have — to conduct a judicial inquiry into whether or not they can within the scope of Section 3500.

So that what the Government destroyed here was evidence whether it was before or after the Jencks decision, and by the way Your Honors, we raised this position before Jencks.

This was not afore to in this alliance — reliance.

We insisted from the word “go” in his first trial that we were entitled to un-break his memoranda.

So that what the Government has done here is destroy and the police agency is to destroy potential evidence.

Our position is very simple, they have no rights or to do.