Killian v. United States, 368 U.S. 231 (1961)
Killian v. United States
No. 7
Argued October 10, 1961
Decided December 11, 1961
368 U.S. 231
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Syllabus
Petitioner was convicted in a Federal District Court of violating 18 U.S.C. § 1001 by swearing falsely that he was not a member of, or affiliated with, the Communist Party, in an affidavit filed with the National Labor Relations Board to enable a union of which he was an officer to comply with § 9 (h) of the National Labor Relations Act, as amended by the Taft-Hartley Act. At the trial, petitioner moved under 18 U.S.C. § 3500 for production, for use in cross-examination, of all statements given by two government witnesses relating to their testimony. All narrative statements of both witnesses which related to their direct testimony were produced and made available to petitioner, but notes made by an FBI agent covering oral reports of one witness regarding his expenses and receipts signed by both witnesses for money paid to them for expenses were not produced, and they were not in the record before this Court. In this Court, the Solicitor General represented that the notes covering oral reports of the witness regarding his expenses had been destroyed before the trial, that most of the receipts for expense money signed by the witnesses did not relate to anything mentioned in their direct testimony, and that, although some of the receipts contained information relating to the direct testimony of one of the witnesses, all such information had been made available to petitioner in the narrative statements of that witness.
Held:
1. The judgment is vacated, and the cause is remanded to the District Court for a hearing and findings of fact on the issues raised by the Solicitor General’s representations. If the District Court finds that his representations are true in all material respects, it shall enter a new final judgment based upon the record as supplemented by its findings, thereby preserving to petitioner the right to appeal to the Court of Appeals. If the District Court finds that the Solicitor General’s representations are untrue in any material respect, it shall grant petitioner a new trial. Pp. 236-244.
(a) If the agent’s notes of the oral reports of expenses were made only for the purpose of transferring the data thereon to receipts to be signed by the witness, and if, after having served that purpose, they were destroyed in good faith and in accord with normal practice, their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right. Pp. 241-242.
(b) Petitioner would not be entitled to a new trial because of the nonproduction of those notes, if they were so destroyed and not in existence at the time of the trial. P. 242.
(c) Notwithstanding the fact that the receipts given by the witnesses for expense money were "statements," within the meaning of 18 U.S.C. § 3500, and were demanded under that section, petitioner would not be entitled to a new trial because of their nonproduction if they did not relate to the direct testimony of those witnesses. Pp. 242-243.
(d) If some of the receipts did relate to the direct testimony of one witness, but the information contained in them had already been given to petitioner in the narrative statements of that witness, the District Court could properly find that the error in failing to produce those receipts was harmless. Pp. 243-244.
2. The District Court’s instructions to the jury (quoted in the opinion, p. 246, n. 5, and p. 254, n. 13) properly defined "membership in," and "affiliation with," the Communist Party. Pp. 242-258.
(a) Membership in such a secretly operating organization is, to all but the organization and its member or members, necessarily subjective, and, although it must be proved by evidence of objective facts and circumstances having a rational tendency to show, and from which the jury may rationally and logically infer, the ultimate subjective fact of membership, it is, in the very nature of such a case, necessary that the court’s instructions define membership in such an organization in subjective terms or not at all. P. 249.
(b) The following definition of "membership" contained in the instructions was not erroneous:
Membership in the Communist Party, the same as membership in any other organization, constitutes the state of being one of those persons who belong to or comprise the Communist Party. It connotes a status of mutuality between the individual and the organization. That is to say, there must be present the desire on the part of the individual to belong to the Communist Party and a recognition by that Party that it considers him as a member.
Pp. 249-251.
(c) The instructions did not fail adequately to state the objective circumstances that might be considered by the jury in determining membership, and the criteria submitted were not too indefinite to give the jury the necessary guidance. Pp. 251-253.
(d) Independently of, and wholly apart from, § 5 of the Communist Control Act of 1954, it was proper to tell the jury, as this instruction did, that, in determining whether the defendant was or was not a member of the Communist Party on the date charged in the indictment, they might consider 12 of the 14 criteria specified by Congress in § 5 of that Act. Pp. 252-253.
(e) The instructions did not allow a finding of membership on a date other than that charged in the indictment. P. 253.
(f) The instructions did not violate the First Amendment or deny due process by permitting the jury to base its finding of membership upon statements and acts that are protected by that Amendment. Pp. 253-254.
(g) The Court’s instruction defining "affiliation" was correct. Pp. 254-258.
(h) The instruction was not erroneous for failure to advise the jury that one may not be "affiliated with" the Communist Party, within the meaning of § 9(h), by any direct relationship with the Party, but only by being a member of another organization that is affiliated with the Party. Pp. 256-257.
(i) The ultimate fact of affiliation, though subjective, may be proved by evidence of objective facts and circumstances having a rational tendency to show, and from which the jury may rationally and logically find, affiliation. P. 257.
(j) Though one paragraph of the instructions was erroneous and conflicted with another paragraph, it could not prejudice petitioner, because it exacted a higher standard of proof of affiliation than the law required. Pp. 257-258.
275 F. 2d 561, judgment vacated and case remanded for further proceedings.