Killian v. United States, 368 U.S. 231 (1961)

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Author: Charles Evans Whittaker

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Killian v. United States, 368 U.S. 231 (1961)

MR. JUSTICE WHITTAKER delivered the opinion of the Court.

For the purpose of enabling a labor union of which he was then an officer to comply with § 9(h) of the National Labor Relations Act, as amended 29 U.S.C. § 159(h), and hence to use the processes of the National Labor Relations Board,{1} petitioner made on December 9, and caused to be filed with the Board on December 11, 1952, an affidavit reciting, inter alia, "I am not a member of the Communist Party or affiliated with such Party." Upon receipt of that affidavit and like ones of all other officers of the union, the Board advised the union that it had complied with § 9(h) and could make use of the Board’s processes.

In November, 1955, an indictment in two counts was returned against petitioner in the United States District Court for the Northern District of Illinois. The first count charged that, in violation of 18 U.S.C. § 1001,{2} petitioner had falsely sworn, in the affidavit, that he was not a member of the Communist Party, and the second charged that, in violation of the same statute, he had also falsely sworn in that affidavit that he was not affiliated with the Communist Party. A jury trial was had which resulted in a verdict of guilty on both counts, and the court sentenced petitioner to imprisonment. On appeal, the United States Court of Appeals for the Seventh Circuit originally affirmed, but, before the motion for rehearing was ruled, this Court’s decision in Jencks v. United States, 353 U.S. 657, came down, and, on the authority of that case, the court granted the motion for rehearing, reversed the judgment and remanded the case for a new trial. United States v. Killian, 246 F.2d 77, 82. A new trial was had. It also resulted in a verdict of guilty on both counts, and petitioner was sentenced to imprisonment for five years on Count I, and for three years on Count II, the sentences to run concurrently. On appeal, the United States Court of Appeals for the Seventh Circuit affirmed, United States v. Killian, 275 F.2d 561, and we granted certiorari limited to two questions, namely, (1) whether production of statements submitted by Government informer witnesses for their expenses, and the receipts executed by them for the payments, is required by 18 U.S.C. § 3500 when the Government offers at the trial to produce a list of the dates and amounts of the payments, and (2) whether the instructions to the jury properly defined membership in and affiliation with the Communist Party. 365 U.S. 810.

The Government introduced evidence tending to show that petitioner was a member and active in the affairs of the Communist Party from 1949 through August, 1953, but, inasmuch as there is not before us any question concerning the sufficiency of the evidence to make a submissible case for the jury, it is not necessary to review the evidence in detail.

I. The Document Production Questions

Intelligent understanding of the document production questions presented requires a brief statement of their basis. They arose in connection with the testimony of Government witnesses Sullivan and Ondrejka.

On direct examination, Sullivan testified that he joined the Communist Party in 1948 at the request of the Federal Bureau of Investigation, and, in October, 1949, transferred his membership from Cincinnati, Ohio, to Madison, Wisconsin, where, by secret means, he made contact with local leaders of the Communist Party and became active in its affairs. In those activities, he met petitioner in December, 1949. Petitioner was then the section organizer for the Party in Madison. Thereafter, Sullivan attended a number of secret Communist Party group meetings in Madison in 1949 and 1950 at which petitioner was present and acted as the spokesman and leader. Sullivan testified that he gave written reports to the FBI respecting Party meetings and activities soon after they occurred.

At the close of Sullivan’s direct testimony, petitioner moved for production, for use in cross-examination, of all statements given by the witness to the FBI relating to his direct testimony. The narrative statements were produced to the judge in camera, who, after excising the parts that did not relate to the witness’ direct testimony, handed them to petitioner’s counsel. On cross-examination, Sullivan testified that he was paid stipulated monthly amounts for his services, and was reimbursed for his expenses incurred in Communist Party activities, by the FBI, and that, when he received the money, he signed a receipt for it. His connection with the FBI terminated in 1952.

After completing the cross-examination of the witness, petitioner again moved for production of all statements made by the witness to the FBI, without excision. The Government objected to the motion on the grounds that it had produced all of the witness’ statements that related to his direct testimony, and that there was no showing that the witness had given any other statements to the Government that related to his direct testimony. Thereupon, the court denied petitioner’s motion. Petitioner then moved to strike the testimony of the witness, and that motion, too, was denied.

On direct examination, Ondrejka testified that he joined the Communist Party at the request of the FBI in October, 1949, and remained a member of the Party until November, 1953. He met petitioner at a Communist Party meeting in Milwaukee, Wisconsin, in January, 1951, and thereafter attended many secret Communist Party meetings in Milwaukee where petitioner was present and active, and also participated with petitioner in numerous Party activities, until August, 1953, and knew petitioner to be a member of the Communist Party throughout that period. Ondrejka testified that he gave written reports to the FBI respecting Party meetings and activities soon after they occurred.

At the conclusion of Ondrejka’s direct testimony, petitioner moved for production, for use in cross-examination, of all statements given by the witness to the FBI. The court ordered to Government to produce to the judge,in camera, "all statements that in any way affect the direct examination of the witness." Accordingly, all of the narrative statements given by the witness to the Government relating to his direct testimony were produced to the judge, who, after excising such parts as did not relate to the witness’ direct testimony, delivered them to petitioner’s counsel. Petitioner then moved for production of all statements relating to the testimony of the witness, without excision. That motion was denied.

On cross-examination, Ondrejka testified that he was paid stipulated monthly amounts in cash for his services by the FBI, and, in addition, was reimbursed by the FBI for his expenses, such as Communist Party dues, literature, contributions and travel, which he orally reported to an FBI agent, who made notes thereof and later reimbursed him in cash. The court sustained the Government’s objection to a question asking whether Ondrejka signed receipts for the moneys paid to him in reimbursement for his expenses.

Petitioner then moved for production of all statements given by the witness to the FBI, whether written by the witness or by an FBI agent as the result of interviews with the witness, which related to the witness’ testimony on cross-examination, including particularly reports by the witness of his reimbursable expenses and the receipts which he signed evidencing reimbursement for those expenses. The Government opposed production of the documents on the ground that they did not relate to the direct testimony of the witness. It further objected to producing Ondrejka’s reports of expenses, and the receipts he had signed when reimbursed for those expenses, on the grounds that they were administrative records of the FBI, and were immaterial and irrelevant, but the Government offered to produce a list showing the dates and amounts of the payments and whether they were for services or expenses. Petitioner refused to receive that proffered list. Thereupon, the court denied the motion. Petitioner then moved to strike all of Ondrejka’s testimony, and that motion, too, was denied.

Petitioner contends that his general demands for "all statements," as well as his specific demand for the reports and receipts made by Ondrejka, encompassed, and the trial court erred to his prejudice in denying his motion to require the Government to produce, (1) the notes made by the FBI agents covering Ondrejka’s oral reports of expenses, and (2) the receipts signed by Sullivan and Ondrejka for moneys paid to them in reimbursement for expenses. He supports these contentions with an elaborate argument which we need not delineate because the Solicitor General now concedes that the FBI notes of Ondrejka’s oral reports may have been "statements" within the meaning of 18 U.S.C. § 3500(e)(2),{3} and he flatly concedes that the receipts signed by Sullivan and Ondrejka were "statements" within the meaning of § 3500.

However, the Solicitor General contends that, on the actual facts -- many of which are not incorporated in the record before us -- petitioner is not entitled to, and that we should not on this incomplete and imperfect record order, a new trial because the true facts are that the FBI agents’ notes covering Ondrejka’s oral reports of expenses were not in existence at the time of the trial, and the receipts signed by Sullivan and Ondrejka do not "relate to" their direct testimony, as required by § 3500, or, if it may be said that any of them do "relate to" their direct testimony, that the same information, in much greater detail, was given to petitioner in the witnesses’ narrative statements that were produced and delivered to his counsel at the trial, and hence, if there was any error, it was harmless.

More specifically, the Solicitor General tells us in his brief that, although the nature of the Government’s objections in the courts below implied that the agents’ notes were in existence, his interrogation of the FBI agents has disclosed that, after they incorporated the data contained in their notes of Ondrejka’s oral reports into the receipts to be signed by him, the agents destroyed the notes in accord with their normal practice, and hence those notes were not in existence at the time of either of petitioner’s trials. Although the receipts are not contained in the record before us, the Solicitor General says that there are 124 of them, and that a careful examination of them reveals that none of Sullivan’s receipts contains any itemization whatever of the nature of the reimbursed expenses, and thus they do not "relate to" anything mentioned in his direct testimony. With respect to Ondrejka’s receipts, the Solicitor General says that, although the Government inadvertently represented to the District Court and the Court of Appeals that the list, proffered to petitioner at the trial and showing the dates and amounts of payments made to Ondrejka, gave all of the information that was contained in the receipts, his examination has disclosed that nine of Ondrejka’s receipts do contain some itemization of the nature of his reimbursed expenses, but that only two of the nine can be said to "relate to" anything mentioned by Ondrejka on his direct examination, and that the same information, in greater detail, was contained in Ondrejka’s narrative statements that were produced and delivered to petitioner’s counsel at the trial.

For these reasons, the Solicitor General contends that, viewed upon the now known and readily available actual facts, no error -- at least no prejudicial error -- resulted from the nonproduction of the FBI notes and the Sullivan and Ondrejka receipts at the trial. However, the Solicitor General recognizes that petitioner is not bound to accept his statement that the FBI notes of Ondrejka’s oral reports of expenses were destroyed in accord with normal practice long prior to the trial, and that petitioner is entitled to an opportunity to examine the FBI agents and other responsible Government officials on these matters, which, of course, can be done only in the District Court. He recognizes, too, that his contentions with respect to the receipts signed by Sullivan and Ondrejka necessarily involve a detailed examination and comparison of the lengthy direct testimony of Sullivan and Ondrejka, the 124 receipts, the list showing the dates and amounts of payments to Ondrejka that was proffered to petitioner by the Government at the trial, and the numerous narrative statements by Sullivan and Ondrejka that were produced and delivered to petitioner at the trial, and he submits that this cannot appropriately be done in this Court, especially since neither the receipts nor the proffered list is contained in the present record, but can properly be done only in the District Court. He therefore asks us to vacate the judgment and remand the case to the District Court to hear these issues and to determine whether a new trial should be ordered or the judgment should be reinstated with the right in the petitioner, of course, to appeal from any such judgment to the Court of Appeals.

In opposition, petitioner argues that the claimed destruction of the agents’ notes admits the destruction of evidence that may have been helpful to him, and deprives him of his rights under § 3500 and to due process of law, and therefore the judgment should be reversed. Alternatively, he argues that only he and his counsel could determine the uses that might have been made of the receipts had they been produced, and he concludes that it would not be possible for the District Court, on remand, to find that the failure to produce the receipts was nonprejudicial or harmless error, and that therefore he is entitled to a new trial.

As to petitioner’s contention that the claimed destruction of the agents’ notes admits the destruction of evidence, deprives him of legal rights, and requires reversal of the judgment, it seems appropriate to observe that almost everything is evidence of something, but that does not mean that nothing can ever safely be destroyed. If the agents’ notes of Ondrejka’s oral reports of expenses were made only for the purpose of transferring the data thereon to the receipts to be signed by Ondrejka, and if, after having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practice, it would be clear that their destruction did not constitute an impermissible destruction of evidence, nor deprive petitioner of any right. Those are the factual representations made by the Solicitor General. Whether they are true can be determined only upon a hearing in the District Court.

It is entirely clear that petitioner would not be entitled to a new trial because of the nonproduction of the agents’ notes if those notes were so destroyed, and not in existence at the time of the trial. It is equally clear that, notwithstanding the fact that the Sullivan and Ondrejka receipts were "statements" within the meaning of § 3500 and were demanded under that section, petitioner would not be entitled to a new trial because of the nonproduction of those receipts if, in truth, they do not relate to the direct testimony of those witnesses inasmuch as § 3500(c) requires "the court [to] excise the portions of [the] statement which do not relate to the subject matter of the testimony of the witness." The Solicitor General represents that 115 of the 124 receipts signed by Sullivan and Ondrejka do not contain any itemization of the nature of the reimbursed expenses nor relate to the direct testimony of those witnesses. If those representations are true, petitioner would not be entitled to a new trial because of the nonproduction of those 115 receipts. Inasmuch as the receipts are not contained in the record before us, whether the Solicitor General’s representations are true can be determined only upon a hearing in the District Court.

But the Solicitor General finds that two of Ondrejka’s receipts may be said to relate to Ondrejka’s direct testimony. However, he says that the same information as they contain and much more on the same subjects was contained in Ondrejka’s narrative statements that were produced and delivered to petitioner at the trial, and therefore petitioner could not have been prejudiced by the nonproduction of those two receipts, and is not entitled to a new trial on that account. It is true, as petitioner argues, that only the defense is in position to determine the precise uses that may be made of demanded documents, Jencks v. United States, 353 U.S. 657, 668, but that is not to say that the harmless error rule is never applicable in respect to the nonproduction of demanded documents. Upon very similar facts, we recently approved a holding that nonproduction of demanded documents was harmless error. Rosenberg v. United States, 360 U.S. 367. We there said:

Since the same information that would have been afforded had the document been given to defendant was already in the possession of the defense by way of the witness’ admissions while testifying, it would deny reason to entertain the belief that defendant could have been prejudiced by not having had opportunity to inspect the letter.

360 U.S. at 371.

While, as we said in the Rosenberg case, supra, a

court should not confidently guess what defendant’s attorney might have found useful for impeachment purposes in withheld documents to which the defense is entitled . . . , when the very same information was possessed by defendant’s counsel as would have been available were error not committed, [a court properly can find that] it would offend common sense and the fair administration of justice to order a new trial.

360 U.S. at 371.

If it is true, as the Solicitor General represents, that the information contained on the two Ondrejka receipts had already been given to petitioner in Ondrejka’s narrative statements covering the same subjects, it is clear that the District Court properly could find that the error in failing to produce those two receipts was harmless.

Accordingly, we vacate the judgment and remand the cause to the District Court for a hearing confined to the issues raised by the Solicitor General’s representations as stated in this opinion. The District Court shall make findings of fact on those issues. If the District Court finds that the Solicitor General’s 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, on the other hand, the District Court finds that the Solicitor General’s representations are untrue in any material respect, it shall grant petitioner a new trial.

II. The Instructions to the Jury

Whether the District Court, on remand, grants or denies a new trial, it is obvious that petitioner’s contentions respecting the court’s instructions to the jury will not be mooted,{4} and it seems necessary to decide them.

Because of the nature of some of petitioner’s contentions respecting the instructions, it seems appropriate to make clear just what was the charge upon which petitioner was convicted. He was not charged with criminality for being a member of or affiliated with the Communist Party, nor for participation in any criminal activities of or for the Communist Party. He was not charged with advocating or teaching the overthrow of the Government, as was the case in Yates v. United States, 354 U.S. 298, or with knowing membership in an organization advocating the overthrow of the Government by force and violence, as in Scales v. United States, 367 U.S. 203, and Noto v. United States, 367 U.S. 290. The charge was that, to enable a labor union of which he was an officer to comply with § 9(h) of the National Labor Relations Act and thus be permitted to use the processes of the Labor Board, petitioner, on December 11, 1952, knowingly made and caused to be transmitted to the Labor Board a false affidavit, saying he was not then a member of or affiliated with the Communist Party when, in fact, he was both a member of and affiliated with the Communist Party, and that those acts were made criminal and punishable by 18 U.S.C. § 1001.

Nothing in § 9(h) or elsewhere in the Labor Management Relations Act makes or purports to make criminal either membership in or affiliation with the Communist Party, American Communications Ass’n v. Douds, 339 U.S. 382, 402, but § 1001 provides that

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies . . . a material fact . . . or makes or uses any false writing or document knowing the same to contain any false . . . statement . . . shall be fined not more than $10,000 or imprisoned not more than five years, or both.

Petitioner was charged with and convicted for violating that statute -- of knowingly making and transmitting to the Labor Board on December 11, 1952, an affidavit falsely swearing that he was not a member of or affiliated with the Communist Party -- not for being a member of or affiliated with the Communist Party, nor for participating in any activities, lawful or unlawful, of the Communist Party, although, of course, determination of whether the affidavit was true or false requires a determination of whether petitioner was a member of or affiliated with the Communist Party on December 11, 1952. Neither is there any question here about the fact that the evidence was sufficient to make a submissible case for the jury and to support its verdict -- notwithstanding petitioner’s tangential implications to the contrary. The questions here are simply whether the court’s instructions to the jury properly defined membership in and affiliation with the Communist Party.

Membership. Petitioner first contends that the instruction respecting membership{5} should have defined "membership" as, and required a finding of, "a definite objective factual phenomenon" or a "specific formal act of joining," rather than, as was done, in the subjective terms of a state of mind. If petitioner is right in this contention, it would follow, despite the fact the question is foreclosed against him here, that the evidence did not make a submissible case for the jury on Count I of the indictment, and his motion for a directed verdict of acquittal on that count should have been granted, for there was no evidence of "a definite objective factual phenomenon [of joining]" or of "a specific formal act of joining." Indeed, the very nature of the case -- claimed membership in an underground or secretly operating organization whose membership records, if any, are not available to the Government -- precludes the possibility of such evidence, and, if the rule were as petitioner contends, false affidavits of non-Communist Party membership could be made and submitted to the Labor Board with impunity. 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.

A similar question arising under § 9(h) was presented in Jencks v. United States, 353 U.S. 657, but the Court’s opinion, turning on the document production question, did not reach it. However, Mr. Justice Burton’s separate concurring opinion, joined by MR. JUSTICE HARLAN, 353 U.S. at 672, and, on the question here considered, also by MR. JUSTICE FRANKFURTER, 353 U.S. at 672, did reach the question. It found the membership defining instruction given in that case to be deficient because it

failed to emphasize to the jury the essential element of membership in an organized group-the desire of an individual to belong to the organization and a recognition by the organization that it considers him as a member.

353 U.S. at 679. In the instant case, the District Court’s instruction to the jury defined membership to the jury in almost precisely that language (seenote 5, sixth paragraph). Similar instructions in cases arising under § 9(h) have been held proper by every United States Court of Appeals that has passed upon the question. Fisher v. United States, 231 F.2d 99, 107 (C.A.9th Cir.);{6} Lohman v. United States, 251 F.2d 951, 954 (C.A.6th Cir.);{7} Lohman v. United States, 266 F.2d 3 (C.A.6th Cir.);{8} Travis v. United States, 269 F.2d 928, 942-943 (C.A.10th Cir.).{9} From these consistent holdings and upon principle, it seems clear that the instruction’s definition of membership was not erroneous under Count I of the indictment.

Petitioner next contends that the court’s instruction failed to tell the jury precisely what objective circumstances would be sufficient to justify a finding of membership, and that the criteria which it told the jury they might consider in determining the question of membership were too indefinite to give the jury the necessary guidance. Although the ultimate fact of membership in such a case is almost necessarily a subjective one, it may be proved, as we have said, by objective facts and circumstances having a rational tendency to show, and from which the jury rationally and logically may find, the ultimate fact of membership. But, for the purpose of confining the jury’s considerations to the relevant evidence, it was proper for the court to outline the objective acts, shown in the evidence, which they might consider in determining the ultimate subjective fact of membership. Here, the court’s instruction, after telling the jury that intent is a state of mind and can only be determined by what an individual says and does, went on to say that, in determining the issue as to whether the defendant was or was not a member of the Communist Party at the time alleged in the indictment, the jury might take into consideration, as circumstances bearing on that question, the acts and statements of the defendant (seenote 5, sixth paragraph), and, in this connection, they might take into consideration whether the defendant did the things set forth in the 12 numbered paragraphs that followed, which, it said, were some of the indicia of Communist Party membership (seenote 5, eighth paragraph).

While the criteria specified in the numbered paragraphs of the challenged instruction were, in substance, 12 of the 14 criteria specified by Congress in § 5 of the Communist Control Act of 1954 (50 U.S.C. § 844) to be considered by a jury in determining Communist Party membership under that Act, it is unnecessary for us to determine in this case whether that section applies, by force of law, to prosecutions under 18 U.S.C. § 1001 for making a false affidavit to the Labor Board in purported compliance with § 9(h) of the National Labor Relations Act, for it is obvious that those 12 criteria rationally tend to show, and were sufficient to enable a jury rationally and logically to find, the ultimate fact of membership, though subjective, and hence it was proper, independently of and wholly apart from § 5 of the Communist Control Act of 1954, to tell the jury, as this instruction did, that they might consider those criteria in determining whether the defendant was or was not a member of the Communist Party on the date charged in the indictment.

Similar criteria were contained in the membership instruction given in the Jencks case, supra,{10} and the opinion of Mr. Justice Burton did not find any error in that aspect of the instruction. Very similar instructions telling the jury that they might consider such or similar criteria in determining the ultimate subjective fact of membership within the meaning of § 9(h) have been consistently and uniformly approved, Hupman v. United States, 219 F.2d 243 (C.A.6th Cir.);{11} Fisher v. United States, 231 F.2d 99, 107 (C.A.9th Cir.).{12} In Travis v. United States, 247 F.2d 130, 135, the United States Court of Appeals for the Tenth Circuit reversed because the membership instruction failed to specify and require the jury to consider such criteria in determining the question of membership. On retrial, the jury was instructed to consider virtually the same criteria of membership as was the jury in the instant case. The defendants were again convicted, and, on appeal, the Court of Appeals specifically approved the instruction. Travis v. United States, 269 F.2d 928, 942-943.

We think there is no merit in petitioner’s contention that the instruction failed adequately to state the objective circumstances that might be considered by the jury in determining membership or that the criteria submitted were too indefinite to give the jury the necessary guidance.

Nor is there any merit in petitioner’s contention that those criteria allowed a finding of membership on a date other than that charged in the indictment. That contention fails to consider the whole charge, particularly the vital fact that the court repeatedly emphasized to the jury that the issue for them to determine was whether petitioner was or was not a member of the Communist Party on the date that he executed and transmitted the affidavit.

Petitioner, and the amici curiae, contend that § 5 of the Communist Control Act of 1954 (50 U.S.C. § 844) is constitutionally invalid in that it violates the First Amendment of the Constitution and denies due process because it permits a jury to base its finding of membership upon statements and acts that are protected by the First Amendment. They then argue that, because the challenged instruction substantially adopted 12 of the 14 criteria mentioned in that section this instruction, too, was violative of the First Amendment and denied due process. We have no occasion here to consider the constitutionality of § 5 of the Communist Control Act of 1954 because, as we have said, the indicia which the challenged instruction told the jury to consider as circumstances bearing upon the issue of membership did rationally tend to show, and were sufficient, if believed, to enable the jury rationally and logically to find, the ultimate subjective fact of membership, wholly apart from and independently of § 5 of the Communist Control Act of 1954. To petitioner’s argument that the submitted criteria permitted the jury to find membership from statements and acts that were wholly innocent in themselves or even protected by the First Amendment, it is enough to recall that nothing in § 9(h) or elsewhere in the National Labor Relations Act makes or purports to make criminal either membership in or affiliation with the Communist Party, American Communications Ass’n v. Douds, supra, 339 U.S. at 402, and that petitioner was not charged with criminality for being a member of or affiliated with the Communist Party, nor with participating in any criminal activities of or for the Communist Party, but only with having made and submitted to the Government an affidavit falsely swearing that he was not a member of or affiliated with the Communist Party in violation of 18 U.S.C. § 1001. It would be strange doctrine, indeed, to say that membership in the Communist Party -- when, as here, a lawful status -- cannot be proved by evidence of lawful acts and statements, but only by evidence of unlawful acts and statements.

Affiliation. We think the court’s instruction defining affiliation{13} was correct under Count II of the indictment and in accord with all the precedents. A far less complete and definitive instruction on affiliation was given by the trial court in Jencks v. United States, supra, and was challenged in this Court. That instruction merely quoted dictionary definitions and then stated that

[a]ffiliation . . . means something less than membership but more than sympathy. Affiliation with the Communist Party may be proved by either circumstantial or direct evidence, or both.

See 353 U.S. at 679. The Court’s opinion, turning on the document production problem, did not reach that question. However the opinion of Mr. Justice Burton did reach the question. It did not find the instruction erroneous insofar as it went, but found it to be deficient because

It did not require a continuing course of conduct "on a fairly permanent basis" "that could not be abruptly ended without giving at least reasonable cause for the charge of a breach of good faith,"

and thus "allowed the jury to convict petitioner on the basis of acts of intermittent cooperation." 353 U.S. at 679-680. The instruction given in this case contained not only the definition given in the Jencks case (seenote 13, paragraph one) but went on to embody almost exactly the expanded definition prescribed by Mr. Justice Burton (seenote 13, paragraph two). The opinions of the Court of Appeals have uniformly approved that definition. In Bryson v. United States, 238 F.2d 657, 664, the United States Court of Appeals for the Ninth Circuit found an identical instruction to be "full and complete," and said that it "adequately informed the jury of the meaning of the term [affiliated with] and provided an adequate standard for evaluating the evidence." In Lohman v. United States, 251 F.2d 951, 954, the United States Court of Appeals for the Sixth Circuit, speaking through Judge, now MR. JUSTICE, STEWART, specifically approved the definition of "affiliated with" prescribed by Mr. Justice Burton’s opinion in the Jencks case; and in Travis v. United States, 247 F.2d 130, 135, the United States Court of Appeals for the Tenth Circuit approved an almost identical instruction.{14}

Petitioner contends 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, and that the instruction was erroneous for failure so to advise the jury. If petitioner is right in this contention, it would follow, despite the fact the question is foreclosed against him here, that the evidence did not make a submissible case for the jury on Count II of the indictment, and his motion for a directed verdict of acquittal on that count should have been granted, for there was no evidence that petitioner was affiliated with the Communist Party through membership in some other organization. It is true that one may be "affiliated with" the Communist Party through membership in an organization that is affiliated with the Communist Party, American Communications Ass’n v. Douds, supra, 339 U.S. at 406, 421, 450, but that is not to say one may not do so directly, and every decision that has considered the meaning of "affiliated with," as used in § 9(h), has held that one may be directly affiliated with the Communist Party. See Mr. Justice Burton’s separate concurring opinion in Jencks v. United States, supra, 353 U.S. at 672, 679; and Bryson v. United States, supra, 238 F.2d at 664; Lohman v. United States, supra, 251 F.2d at 954; Travis v. United States, supra, 269 F.2d at 942.

In a manner similar to his attack upon the court’s instruction defining membership, petitioner contends that the instruction in question erroneously defined the phrase "affiliated with" only in subjective terms, and without objective criteria. However, just as with regard to membership, affiliation, in relation to Count II in this case, is necessarily subjective. But 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, the ultimate fact of affiliation. It cannot be disputed here that there was such evidence at the trial. The court’s instruction told the jury that

[w]hether or not the defendant was affiliated with the Communist party . . . is a question of fact which you are to determine from all the evidence in the case,

and that their determination should be based on the "statements made or acts done by the accused, and all other facts and circumstances in evidence. . . ." We think that instruction was adequate.

Petitioner argues that because the first paragraph of the instruction stated that affiliation

means a relationship short of and less than membership in the Communist Party, but more than that of mere sympathy for the aims and objectives of the Communist Party,

and the third paragraph of the instruction stated that "affiliation . . . means a relationship which is equivalent or equal to that of membership in all but name," it was contradictory and confusing. We agree that the third paragraph appears inconsistent with the first. However, it is evident that the erroneous third paragraph could not have prejudiced petitioner, for it, though inconsistent with the correct first paragraph, exacted a higher standard of proof of affiliation than the law required.

Petitioner, quite understandably, would require instructions as specific as mathematical formulas. But such specificity often is impossible. The phrases "member of" and "affiliated with," especially when applied to the relationship between persons and organizations that conceal their connection, cannot be defined in absolute terms. The most that is possible, and hence all that can be expected, is that the trial court shall give the jury a fair statement of the issues -- i.e., whether petitioner was a member of or affiliated with the Communist Party on the date of his affidavit -- give a reasonable definition of the terms and outline the various criteria, shown in the evidence, which the jury may consider in determining the ultimate issues. We believe that the instructions in this case, which are consistent with all the judicial precedents under § 9(h), adequately met those tests.

Accordingly, the judgment is vacated, and the case is remanded to the District Court for further proceedings consistent with this opinion.

It is so ordered.

1. Section 9(h), 29 U.S.C. § 159(h), provided in pertinent part that

No investigation shall be made by the Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b) of section 160 of this title, unless there is on file with the Board an affidavit executed contemporaneously or within the preceding twelvemonth period by each officer of such labor organization . . . that he is not a member of the Communist Party or affiliated with such party. . . .

This section was repealed by Pub.L. 86-257, 86th Cong., 1st Sess., § 201(d), 73 Stat. 519, 525.

2. 18 U.S.C. § 1001:

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

3. The Solicitor General concedes that the FBI notes of Ondrejka’s oral reports may have come within the meaning of "statement" as defined by 18 U.S.C. § 3500(e)(2), namely,

a stenographic . . . recording . . . which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement.

4. These instruction questions are not likely to be mooted on remand, because, if a new trial is granted, it is probable, since the Court of Appeals has already approved them, the District Court would give the same or similar instructions to the jury on the new trial, and, if petitioner should be convicted, the same question would likely be brought here again. If we then disapproved the instructions, a fourth trial would be necessary. If, on the other hand, the District Court denies a new trial and enters a new judgment, it is likely that the Court of Appeals would again approve these instructions, and that the same questions would be brought here again.

5. The instruction respecting membership was as follows:

The crucial issue of fact in this case is whether, on December 11, 1952, John Joseph Killian was or was not then a member of the Communist Party or affiliated with such Party.

The affidavit does not call upon any person to state whether or not in the past he has ever been a member of the Communist Party or affiliated with it. A person who has been at some time in the past a member of the Communist Party or affiliated with that Party but who has terminated such membership or affiliation prior to the making of the affidavit would be entitled to sign the affidavit under oath without violating the law.

Since the affidavit speaks in the present tense only, the fundamental issue of fact for you to decide is whether or not at the time alleged in the indictment the defendant knowingly and willfully used an affidavit which was false and which he knew to be false at that time.

Whether or not the defendant was a member of the Communist Party at the time alleged in the indictment is a question of fact which you are to determine from all of the evidence in the case. In determining this question, you must bear in mind that the burden of proof rests on the Government to prove the defendant guilty beyond a reasonable doubt. Membership or lack of membership in the Communist Party may be established by direct, as well as circumstantial, evidence.

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.

Intent is a state mind, and can only be determined by what an individual says and what he does. In determining the issue as to whether the defendant was or was not a member of the Communist Party at the time alleged in the indictment, you may take into consideration the acts and statements of this defendant, as disclosed by the evidence, bearing in mind that individual and unrelated isolated acts of the defendant showing cooperation with the Communist Party or isolated statements of the defendant showing sympathy with the Communist Party are not, in themselves, conclusive evidence of membership, but are circumstances which you may take into consideration along with all the other evidence in this case.

In determining whether or not the defendant was a member of the Communist Party at the time alleged in the indictment, you may take into consideration whether the defendant:

1. Paid dues or made any financial contributions to the Communist Party or collected any funds on its behalf;

2. Attended Communist Party meetings, classes, conferences, or any other type of Communist Party gathering;

3. Had made himself subject to the discipline of the Communist Party in any form whatsoever;

4. Participated in any recruiting activities on behalf of the Communist Party;

5. Has executed orders, plans or directives of any kind of the Communist Party;

6. Has acted as an agent, messenger, correspondent, organizer, or in any other capacity in behalf of the Communist Party;

7. Has been accepted to his knowledge as an officer or member of the Communist Party, or as one to be called upon for services by other officers or members of the Communist Party;

8. Has conferred with officers or other members of the Communist Party in behalf of any plan or enterprise of the Communist Party;

9. Has spoken or in any other way communicated orders, directives or plans of the Communist Party;

10. Has advised, counseled, or in any other way imparted information, suggestions, or recommendations, to officers or members of the Communist Party, or to anyone else, in behalf of the Communist Party;

11. Has indicated by word, action, conduct, writing, or in any other way, a willingness to carry out in any manner and to any degree the plans, objectives or designs of the Communist Party;

12. Has in any other way participated in the activities, planning or actions of the Communist Party;

These are some of the indicia of Communist Party membership, but you are not limited solely to those I have enumerated. As sole arbiters of the facts, it is your duty to consider all the evidence, either direct or circumstantial, which bears upon the question of whether or not the defendant was a member of the Communist Party on the date alleged in the indictment.

In determining this question, you must bear in mind that the burden of proof rests upon the Government to prove the defendant guilty beyond a reasonable doubt. If you find that the Government has sustained this burden by proving beyond a reasonable doubt that the defendant was a member of the Communist Party on December 11, 1952, as alleged in the indictment, and if you find also that the Government has proved beyond a reasonable doubt the other essential elements of the offense charged in the first count of the indictment, as I have outlined them to you, then you must find the defendant guilty as to the first count.

6. In Fisher v. United States, supra, the Court of Appeals for the Ninth Circuit said:

Membership is composed of a desire on the part of the person in question to belong to an organization and acceptance by the organization. Moreover, certain actions are usually required, such as paying dues, attending meetings, and doing some of the work of the group.

231 F.2d at 107.

7. In Lohman v. United States, supra, the Court of Appeals for the Sixth Circuit, speaking through Judge, now MR. JUSTICE, STEWART, said:

Membership should be so defined as to emphasize to the jury the necessity of finding that the appellant desired to belong to the Communist Party, and that the Communist Party recognized that it considered him as a member. Jencks v. United States, 353 U.S. at 657, 679 (concurring opinion); Fisher v. United States, 1956, 231 F.2d 99, 106-107; Travis v. United States, 247 F.2d 130, 135-136. . . .

8. On retrial of the Lohman case, supra, the trial court defined membership for the jury as directed by the Court of Appeals on the first appeal (seenote 7) and the defendant was again convicted. On appeal, the Court of Appeals for the Sixth Circuit reapproved that instruction. Lohman v. United States, 266 F.2d at 4.

9. In Travis v. United States, supra, the Court of Appeals for the Tenth Circuit said of the membership instruction, precisely like the one here, that

The instructions were meaningful and clear. They included 11 of the 14 indicia of membership outlined by Congress in Section 5 of the Communist Control Act of 1954, and emphasized the primary element of membership as suggested by Mr. Justice Burton in Jencks v. United States, 353 U.S. 657, that there must be present "the desire of an individual to belong to the organization and a recognition by the organization that it considers him as a member." This adequately outlined the kind of acts that could be considered evidence of membership and included the idea of the continuing reciprocal relationship necessary for that status.

269 F.2d at 942-943.

10. Compare the Jencks instruction, 353 U.S. at 679, with the 12 numbered paragraphs in note 5.

11. In Hupman v. United States, supra, the Court of Appeals for the Sixth Circuit said that a very similar instruction was "fair, [and] substantially covered the crucial questions of law, with a careful analysis of the elements of the offense charged." 219 F.2d at 249.

12. In Fisher v. United States, supra, the Court of Appeals for the Ninth Circuit, in dealing with a similar question, said: "The jury should have been reminded of the components of the term membership, rather than be supplied with synonyms." 231 F.2d at 107.

13. The instruction respecting affiliation was as follows:

The verb "affiliated," as used in the Second Count of the indictment, means a relationship short of and less than membership in the Communist Party, but more than that of mere sympathy for the aims and objectives of the Communist Party.

A person may be found to be "affiliated" with an organization, even though not a member, when there is shown to be a close working alliance or association between him and the organization, together with a mutual understanding or recognition that the organization can rely and depend upon him to cooperate with it, and to work for its benefit, for an indefinite future period upon a fairly permanent basis.

Briefly stated, affiliation, as charged in the Second Count of the indictment, means a relationship which is equivalent or equal to that of membership in all but name.

Whether or not the defendant was affiliated with the Communist Party at the time alleged in the indictment is a question of fact which you are to determine from all the evidence in the case. Affiliation or lack of affiliation in the Communist Party may be established by direct, as well as circumstantial, evidence.

In determining the issue as to whether the defendant was or was not affiliated with the Communist Party at the time alleged in the indictment, you may take into consideration any statements made or acts done by the accused, and all other facts and circumstances in evidence which may aid determination of the issue.

14. Compare United States ex rel. Kettunen v. Reimer, 79 F.2d 315 (C.A.2d Cir.), and Bridges v. Wixon, 326 U.S. 135, defining the term affiliation, but as used in the deportation statutes.

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Chicago: Charles Evans Whittaker, "Whittaker, J., Lead Opinion," Killian v. United States, 368 U.S. 231 (1961) in 368 U.S. 231 368 U.S. 235–368 U.S. 254. Original Sources, accessed April 23, 2018, http://www.originalsources.com/Document.aspx?DocID=CNZHWAYMPT8TU8W.

MLA: Whittaker, Charles Evans. "Whittaker, J., Lead Opinion." Killian v. United States, 368 U.S. 231 (1961), in 368 U.S. 231, pp. 368 U.S. 235–368 U.S. 254. Original Sources. 23 Apr. 2018. www.originalsources.com/Document.aspx?DocID=CNZHWAYMPT8TU8W.

Harvard: Whittaker, CE, 'Whittaker, J., Lead Opinion' in Killian v. United States, 368 U.S. 231 (1961). cited in 1961, 368 U.S. 231, pp.368 U.S. 235–368 U.S. 254. Original Sources, retrieved 23 April 2018, from http://www.originalsources.com/Document.aspx?DocID=CNZHWAYMPT8TU8W.