Reply Brief of Petitioner — Presser v. United States

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fn the Supreme Cott of ite United States

; a OCTORER TERM. iat: ss

. } No. 278. :

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WILLIAM PRESSER, — wens? 5

' | Petitioner.” eet: Bit

| e ats ous vs. , : -

"UNITED. STATES OF AMERICA,

. : Respondent. hee tees .

| ee

° ¥ . - wa aie 3 ~ j .

On Writ. or Certiokari To tHe Unitep States Cotrt or

APPEALS For tHe Srxtu Circuit. -,

REPLY BRIEF OF PETITIONER:

; Pe a . . ns ‘ .

4? _ Epwin Knacuet, ae

a! -' Joun G. Carpinact. 9. «=

. » Ropert E. Freep,

a - 1706 Union Commerce Bldg...

We 3 Cleveland, Ohio,

. oy Attorneys for Petitioner

Risin Hoawneck HotuincTon, \-:

STEADMAN & McLaucuuin:

Of Counsel or re See

.

“MAIN 1/9647

THE GATES LEG4.. PUBL SHING

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.]

‘¢ . ‘TABLE OF CONTENTS.

Reply Brief of Petitioner

a Reply “to Section I of Respondent's Argument:

II. Reply to _— {I of — s Argument

Conclusion ee , .

+ *

. TABLE OF AUTHORITIES. -

Cases.

Siiéerihorne Pp be Co. v. United States, 251 U. “i

385 (1929)

Simmons v. United States, 206 F. 2d 427-(C. A. D. =

1953) *

United States: v. Heinszen, 206 U. S. 370° (1907) .

United States v. Orinan, 207 fe 2d 148° 156 _ Cir.

. * 1953),

’

ans Statutes.

eee

0.6:C 16 os

"Miscellaneous. -

Federal Rules of Criminal Procedure, Rule 17a. .-

Senate Resolution 4 4

eof

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13

13

18

In the Supreme Court of the United States

| ss OCTOBER TERM. 1961. |

| No. 278. |

LAM Pie SSER,

Petitioner,

VS...

det "tae a UNITED STATES OF AME RIGA,

. . _ Respondent.

Ox Writ OF Curtsonans To THE UNITED STATES Court or

APPEALS For ‘THE SIXTH Circu UIT.

ae / aS ; -

*-

| REPLY BRIEF OF PETITIONER.

f See ae

L eo

1. Petitioner made no issue that the Commiittee was

-not properly constituted and would not have been pur-

suing its function in, investigating into labor-management

relationships (R. 212a). However, the Petitioner contends

that in the present case the Petitioner did not obstruct or

impede the due and proper administration of the laws

- under which the Committee was investigating, or the due

and proper exercise of the Committeé’s power of inquiry

‘as charged in’ the indictment. = .

' 2. The manifested exercise of the power of inquiry by

the Committee was the subpoena served upon the Peti-

tiener on March 21. 1958 (R. 58a). for the alleged violation

of which the Petitioner was indicted and conyicted (R.

5a). However, the prohibition of the statute is the obstrue-

tion or attempted obstruction of the due and proper exer-

-€

2 Be ee res

Pace of the power of infquiry under nih the Committee |

° was conducting its inquiry or investi ation.

The Committee's power to investigate is based upon —

the authority grarited by Senate | Resolution-74- (Gov- Ex.

"__5-C; R. 312a). Its exercise of that power-ef inquiry-“under

its authorizing resolution must be in accordance with’.2

U.S.C. § 190b and the Committee’s own rules of procedure

(Gov. Ex. .6; R. 313a). It is submitted, thd efore, that the

record does not disclose that the documents demanded .

_ were pertinent to any subject under inquiry by the Com-.

mittee. - / : a

wae ion that the pecans of ssliney knowl-

>

‘edge or intent of the crime was “fully established by proof”

-is grounded on’ gross assumptions not warranted by the

record.

The. record does ‘not disclose with ® any degree of

. particularity that the documents were pertinent to the

Committee’s investigation.

The documents were not under subpoena by the Dia:

‘mittee and the Petitioner challenged the validity of the |

subpoena at the time it became evident, that the subpoena

was a void process.

‘Phe only knowledge which the petitioner had that the

+

documents could be pertinent to.any subject under i inquiry. ~

by the Committee must have come fromthe subpoena, ‘for

‘ the record fails to disclose that any Committee member ior

employee of the Committee discussed any documents with

any member of Joint Council 41, intluding the Petitioner, ..

until pogroms 13, 1959. cal this time the crime as laid

“The trial court pes the imnaesitines inserted the ele- |

ment that the documents must have been in fact. pertinent -

to the matter under .inquiry by the Committee (R. 35a, |

e-

(Ye:

’ 3 ’

r

36a). ‘When the prosecutor attempted to - Austify Senator

McClellan’ s reading to the jury the testimony that investi--

gator Sheridan had given before the Committe®, the court

commented that such testimony was admissible to prove

that the documents were, pertinent to the matter the Com-

mittee had ‘under investigation (R.°36a). The prosecutor

at this point agreed that that was the purpose , of Senator

McClellan's st the ——— of investigator § Sheridan ©

(R. -36a)- u a Pat re : - | = pi

eee ee o

The Petitioner his not advanced the licieninaie that. al-

. though he had. agreed to turn over records to the Com-

- mittee after prelimmary ‘examination by an investigator,

he now attempts to meet the charges made against — on

the ground that the subpoena was defective. ;

First. neither the Petitioner nor ‘any person affiliated ©

w ith Joint Council 41 agreed to turn, over Jojnt Council

records to the Committee. The records were sought and

obtained under color of thie coercive power of a Commit-

tee’ s compulsory process. '

- Sheridan served the subpoena on Petitioner person-

-9 ally on March 21, 1958, a subpoena claimed by Sheridan

to have been issued against Joint Council 41 by the Con-,

: gress of the United States (R7 572). Sheridan then went to

the office.of Joint Council 41 on September 9, 1958, be-

‘cause, as he stated, the subpoena had not:been complied —

with (R. 60a, 63a).‘ The violation of the subpoena is the

only basis for obstruction, or endeavor to do so, of the |

Committee’s s power of inquiry that is laid in 2 the indictment .

(R. 6a).

Second, there had been no preliminary examination vat

any records of Joint Council 41 prior to the service of the

= on March 21, ain

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the

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7 “Third, the tein involved | in this case was not

- merely defective, it was void.

1. The obstruction ‘statute may not be confin or.

limited to those records sought: through the conffulsory ©

*s process of the Committee. However, the Petitioner has

been charged with the violation of: the Committee's com-

pulsory process. The failure of that process cannot logi-

cally ~varrant a conclusion that the documents were volun-

tarily produced. They wére produced because of the

- coercive effect of the subpoena, which was ostensibly a

valid exercise of the Committee's power to demand the

- .documents. . .. p

The Petitioner has not. misconceived his duty to the

Committee under 18 U.S.C. § 1505. However, it should be

clear that his duty results from the’ obligation of Joint

Council 41 to. comply with the subpoena served upon him

on March 21, 1958. It‘is the alleged failure of the Peti-

tioner to recognize this obligation of Joint Council 41 for .

which he was indicted and convicted. ,

To state that the Petitioner knew - the Committee

wanted the union invoice and memorandum is to assume. =

a faet which is not substantiated by the record, either di-.

\?

rectly or by "inference. The subpoena demanded any and |

all records of Joint Council 41 for a ten year period. When —

Sheridan served the subpoena he particularized no docu-

ment or record. When Sheridan went to the office of Joint

Council 41 on September 9, 1958, he examined several

file cabinets (R. 63a, 66a) of records and proposed to take

four Separate files. Indeed. there is every indication that

Sheridan did not have arty particular or specific pur

in going through the files of Joint Council 41 except for

the purpose of a general search for material which he felt . .

might interest the Committeé (R. 66a).

a

2. The Government here recognizes the distinction.

that exists between a subpoena issued’ by the Commitee

and a, blank form signed by the Ghairman. Howeyer. a

subpoena hot issued by the Chairman. or an euthorized

member ad the Committee in writing. ‘cannot in fact be the °

compulsory process of the Committee.

aThe records tha? were produced at the Clev eland,

’ Field Office of the Committee wefe produced only-throuzh -

the. coéreive effect of the subpoena and not by any agree-

ment between Joint-Council 41 and the Committee or its

members. The -arrangemeni for, the production of these

records was effected through Arthur Kaplan. a staff in-

vestigator of- the Committee. and representatives of Joint

Council 41 (R. 59a). but only pursuant to the subpoena

served upon the Petitioner on March 21, 1958. ee

Kaplan did not testify at the trial. 3

' The arrangement effected by Arthur Kaplan was car-

~ ried out between representativ es of Joint Council 41 and /

field office personnel identified only as Paul T. Riebese¢ll

and Helen Thorpe -(R. 83a. 147a) of the Cleveland: Field

Office, Neither Mr. R: ebesell nor Miss paras testified at ”

_ the trial. te

b. The evidence shows that in all likelihood . the.

chances are that the subpoena was_not issued by the Com-

-mittee Chairman or any member of the Committee au-

. thorized: by the Chairman in writing. The evidence ‘is

a. clear that Senator McClellan was not aware thaf any docu-

ments were being delivered at the Cleveland Field Office |

_ except by the fact that they finally appeared *hefere the ~

Committee (R. 29a). ie a

: The argument advanced by the Government that the

evidence does not show that the issuance of the subpoena

"was not -authérized by Senator McClellan. aside from

6

admitting that the ipo was not the valid process of ©

the Committee, serves only to ‘underscore the officious act |

: of a Committee employee: If the Committee Chairman

_. authorized anv one to issue subpoenas .the Committee :

. Rules of Procedure. (Gov. Ex. 6; R. 313a) required that the °

ihe authority: be confined’and limited: to another member of .

| the Committee and that it be in writing. :

: There is‘no evidence in the. record that Senator Mc-.

he Clellan authorized, in writing, any member of the’Com- -

| mittee to issue the subpoena which fdrms the basis of the

Petitioner's indictment, Nor was any such-authority ever

granted (R. 350). : Sead, Seer

Of more significance in this regard, however, is the

fact. that neither the Chairman, nor the Committee as a

‘whole, had any authority under the Committee Rules of

Procedure to delegate the Committee’s power of compul-

sory process to any one not a member of the Committee. ©

3 | Therefore, neither the Chairman nor the Committee could

ratify an act of.a Committee employee that it could not

‘delegate to that employee in the first instance. '

' "5 Even upon the Government's assumption that the is

.- . suance of the subpoena by the Committee employees could |

* . “be ratified, the ratifying act of the Committee or the Sena-

tor does not appear in the record and certainly this ratifi-

cation could netHave occurred before September 13, 1959," ’

_at which time the crime, if any, as laid in the indictment

_was complete. The Petitioner's rights are. fixed as of that

_ time... United States v. Heinszen, 206.U. S. 370 (1907):

" Silverthorne Lumber Co. v. United States, 251 U.S. 385

- (1920). - .-+ ; °"

c. It is submitted that the fact that the subpoena was

* signed in blank renders it Void and not. inerely defective.

“

° ' The Chairman; and the Committee.- were infprimed of

Sheridan's charges on Septeniber 17; 1958 (R. 35a).

-

.

ota

- EF

ey . . -

ee Loe

Whoeyer ° “issued” the subpoena and determined what .

docuidiite he wanted of Joint Council 41. when, and where

they should be delivered or produced, of course, had té :

- purport to act for the Committee. To have’ acted’ on his,

-own behalf would pentose! have produced no records for

his: perusal. fe 3

It eertainly is, not ¢ siabaian tii 2 U.S. &. $ 196b.

- Senate Resolution 74 and. the ‘Committee Rules of Pro-

- cedure that the Congress of the United States has invested

the Committee with any judicial powers whatsoever

whereby it could determine the validity, of the subpoenas ©

. which strangers purported ‘to issue on its behalf contrary ,

“to its.own rules of procedure.

The significant difference between the subpoena which

the Petitioner ‘has been chd?ged with violating and sub-—

poenay’ Pissued in blank under Rule 17a.. Federal Rules of

Criminal Procedure, is that subpeerias issued under the

_

* criminal rule are issued in accordance with the provisions

of that rule of practice and are returnable to a judicial of-

ficer. The subpoena involved in this case was-not issued in

_ accordance with the provisions of Senate Resolution 74 and.

. the Committee Rules: of Procedure. The important dis-

tinction is that the subpoena under the criminal rule is

returnable to, a judicial officer having authority to-rule.

The subpoena issued by the Chairman or an authoriz

member i is not returnable to a judicial officer, or body

°,.

° ”

ae

_ The Petitioner's nea that, the proper names on ,

the demanded.documents €¢re not pertinent to any matter

under inquiry by the Committee is based on the record

produced. by. thie Government against the Pefiticner at the -

trial. ‘ ;

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2 “subpoena w ére not the subject of the Committee's inquiry.

t 8. Pats fa ;

¢ , : aa te * ° ‘

* The fact that the Committee ‘investigator made cer-

tain notes indicates that the documents demanded by the

or at least the inquiry of the investigator.

~The subpoena_-was Served on the Petitioner on aa

21, 1958, and ‘parported Jo demand the production ef all

Joint Council 41 records and documents forthwith’ in

Washington. On September 9, 1958, Sheridan, actively en-

gaged in investigating Mr. Bender, without benefit of the

field officeyspersonnel, obtained the very documents which it

is now claimed had not been produced forthwith in Wash-

' ington to the Committee (Br: p. 27). However, the investi-

gator refused to give a receipt for the documents in ac- °

cordance with the practice that had been established by the

--representatives of Joint Council 41 (R. 96a. 147a) and the

field office personnel (R. 227a, 228a). Rather than being.a

meritless point unworthy of-notice, the investigator’ s notes

: stand out as a symptom of his brazen abuse of the coercive:

pow er a sata by Congressto one of its committees.

C2

a=

vos -- C.

The Petitioner does not contend that the Committee

was not properly constituted nor does he contend that the

Committee could not, as a matter of law, investigate im-

proper activities in the labor-management field under its

authorizing resolution. .

The Petitioner contends that he has not.obstructed or

impeded. or endeavored to obstruct or impede, the due and

proper exercise of the power of inquiry me which this

Committee was conducting its investigation s charage, in

or, the indictment.

‘The argument of the Governndent that the ‘ endiedinte

purpose” of Sheridan's examination of the records was a’

“Phase” of the overall investigation to determine. whether _

f

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Ao 3 es

‘Quin

Mr. Hoffa was. keeping his promise (R. 32a). must surely .

; . ping p | 5

ae

come very close to a judicial admission that the Petitioner's

contention is factually correct. iy ;

‘ The imagination of an overzealous committee: investi- ’

gator should not control the due and proper exercise of *

the-power of inquiry délegated. by Congress to one of: its

committees, nor should it determine the quéstion unde?

: inquiry by the Committee.

»

; . D. | ( :

The direct testimony of Sheridan should not be con-

fused with. direct evidence of the oi eee of a crime

. or any act.

The Petitioner testified that he did not déstroy < or muti-

late any documents (R. 232a) as did “all other persons who

had an opportunity to do this’ deed.” | .

| The Petitioner testified concerning Sheridan’ s Visit toe

the. office of Joint Council 41 on September 13, 1958, and

stated that he did not reply to Sheridan's accusation, “You . :

have your job to do. [have mine” : (R. 73a, 231a, 2324).

| The evidence of the Gpvernrhent. clearly shows that

Sheridan left the office of Joint. Council 41 before the Peti-

tioner on September 9, 19: 58 (R. 70a, 172a). The Peti--

'. tioner’s testimony corroborates this. (R..228a. )

The Petitioner's secrétary, testifying on behalf of the

Government, stated that the Petitioner was out of town

on September 10 and Septembar 11, following Sheridan's -

first visit to Joint Council 41.(R. 18la, 182a). The Peti-

tioner’s own testimony was that he believed that he re-’

turned from Washington on September 12, 1958 (R. 229a). _

There is no dispute that Sheridan's second visit to Joint

Council 41 was-on September 13. 1958. —

The evidenve which it is argued so impressed the jury

-and both lower courts is a ‘complete misstatement of the

record. Sie '

O

10°

OD.

; ,

The testimony of Senator M¢Clellan cannot be justi-__

’ fied as probative evidence. supporting any material element

ofthe charges laid in the indictment against the Petitioner

saa of Pet. p.@1).

A.

1. The scope a the ‘investigation sihebied + to by the

~ Government ( Br. pp. 36, 37) pertained to those investiga-

’ tions which had resulted in the Committee’s Interim Re-

- port. The Interim Report’ was concludéd .and filed with

the Senate on March 24, 1958. No part of these proceed-

ings involved the Petitioner or Joint Council 41..

2. The special findings and the” legislative recom- _

mendations of the Committee have no logical significance -

as proof of the necessary elements of the offense with

_ which the Petitioner has been charged (Br. pp. 20, 21).

Whether there had been special findings by the Committee.

or legislative reeommendations’based upon those findings,

or even:an Interim Report,, does not bear legally upon the —

elements of the crime charged. Moreover, the admissjon of

the testimony in this regard was admitted subject to being

i definitely * ‘tied up” by the prosecution {R. 26a).

x The only tie up between the special findings and the

e legislative | recommendations and the issues i in this ease are

to be found in the: prosecutor’s cross examination of the

Petitioner (R. 255a) and in his argument to the jury (R.

336a). .

3. The testimony of Senator McClellan concerning, g the

“clean up’ ’ committee served a number of purposes for the

prosecution, none of which was conducive to afair and im--

partial trial to the Petitioner. ~

First, the interest of the Committee in’ the clean up

committee of the Teamsters apparently was based upon a

promise that Mr. Hoffa had made to the Committee (R.

32a). After some negotiations between Mr. Hoffa and the

Chairman, or other members of the Committee, had _re-

sulted in the Committee's belief that “nothing had been |

done” by Mr. Hoffa, the Committee decided to‘ ‘ascertain |

just what was taking place” (R. 32a):

This testimony of the “special findings” impressed _

upon the jury that the organization, to which the Peti-

-tioner belonged, was admittedly full of corruption and

‘people of bad reputation (R. 347, 348). i :

« Second, the testimony concerning the clean ‘up com- ,

mittee formed the basis for the cross examination of the

Petitioner upon a matter ‘which he had no control over nor

anything to say about (R: 2634). and which was nt rele-.

vant to any issue in the case. 4

Third, the testimony concerning the clean uj

Bender provided a motive for the Petitioner to

documents (R. 345). ot oki

Fourth, the testimony of the cléan up committee pro-

. vided the prosecution with its argument to the jury that

the. Committee was. attempting to determine whether Mr.

‘Bender, who had been hired by Mr. Hoffa. was going to do.

‘a legitimate job.’ Thus. the Petitioner was provided with.

. another - motive for, concealing his friendship with Mr.

Bender (R. 348). j

4. The prosecutor sought to have Senator McClellan

read the testimony Sheridan gave before the Committee to -

verify the pertinency of “certain matters.” which Sheridan’

,

| a:

would subsequently ‘testify. to ac thosé m matters, v were

placed in evidence directly (R. 35a). ° one er

The court permitted the Senator to read Sheridan’ s

testimony because the Government stated that “these mat-

ters” were pertinent to their inquiry dnd this would be

difficult to prove except in the manner ’ Proposed (R. 35a, °

36a).

The Petitioner obiected (R. 34a, 35a,-36a ).

_ The court permitted Senator McClellan to identify

’ the neciplicls of gifts because the Committee was in-

terested in the use of union dues for that purpose (R. 43a).

The identi fication of the recipients of the gifts formed

the basis of a vigorous cross examination of the Petitioner.

The cross examination, which certainly did not attempt to

elicit the truth of the matters testified to on direct exami-

_ nation, was also permitted over general — (R. 255a,, _

256a, 257a, 258a )%

The prosecutor ‘argued to,the jury that the purpose for

bringing out whether or not Beck, Hoffa; Brennan or Dorf-

man ha$ a bad reputation was not to reflect upon the Peti+

_tioner. because, as the prosecutor stated, any one in the

‘labor movement or any. movement where there might -be

people of bad reputation would have some contact. with

them (R. 344). The real purpose, the prosecutor agreed,

for bringing out the bad reputation. of, these men was (1)

to show that the Petitioner was afraid that he might be

fired by the monitors -for associating with people of bad

. reputation, and (2) to show that some ‘people in the Team-

ers organization had bad reputations and that this would

provide the Petitioner with the necessary’ motive for de-

stroying the documents or concealing his’ association with

people of bad reputdtion (R. 344).

6. There is no dispute that the trial court ‘eineidioied

pertinency as a question of fact and submitted that ques- :

13

tion to the jury _upor evidence to which the, Petitioner had

interposed objections.* It is argued now that the trial court

had some discretion in this matter and that. by submitting

the issue to the jury actually ruled that the evidence suf-

ficiently showed pertinency to warrant submission. to the

jury (Br. pp. 45, 46). .

However, if the view of the trial court is correct then

the conclusions of Senator McClellan (R. 43a. 46a) usurped

.

the function of the jury amd concludéd the ‘ultimate fact.

_ the jury would have had to determine. Therefore, regard-

less of the view the Government takes of this matter the —

action of the trial court deprived the Petitioner of a fair

and impartial trial. Simmons «. United States, 206 F. 2d

427 (C.A.D.C. 1953).

: Seldom, si Red

ee The. Petitioner is not pursuing a different course

for the purposes of this review from that pursued in the

trial court. ~~ %

The duty is upon the prosecution to prove this element

aoe crime and in a manner that assures the Petitioner of

a fabr trial: The: testimony to which the Petitioner ob-

jected and which the trial court concluded should go tothe |

jury was not admissible for any purpose. Even in United

States v. Orman, 207 F. 3d 1482156 (3rd. Cir. 1953) the

court first determined that the questions could be pertinent .

from evidence aliunde, and then submitted to the jury

Whether or not they actually were. to

- Whether the submission of. the issue of pertinency

“usually favors” the accused docs not warrant the ¢conclu-

sion that the Petitioner was favorably treated in this case.

Nor can it be said that the Petitioner acquiesced in the con-_

clusions of the court. The Objections of the Petitioner were

not nullities and cannot be construed a as an invitation to the .

= pas

~

ue

____+ mony was improperly before tk e jury both as to pertinency |

> . . . 14

trial court to submit pertinency to the jury's determination

claim that the “major portion” of Senator McClellan's

testimony is admissible for some other purpose (Br. pp.

- 35, 46; 47), and has conceded without specifying (Br. p

49) that in one minor. instance Senator McClellan's testi-

and as to motive.. >

2. It should be noted that the “subjects of interest”

of the Committee ‘could have no bearing upon knowledge, -

-of the Petitioner.. The knowledge properly chargeable to’

the Petitioner must be embodied in the subpoena, the vio-

-lation of which is the basis 6f his indictment. The Govern-

ment has recognized the purpose of the subpoena during

the prosecutor s argument to the jury ( R. 33a, 36a).

It is argued that it is.a reasonable inference for the

jury to conclude that inasmuch as the subpoena had been

served upon Joint Council 41 approximately six months

prior to Sheridan's visit to the office of Joint Council 41 :

that the Petitioner would have acquainted himself with

the ° ‘subjects of interest’ of the Committee. as set out in

' the Interim Report. This argument is completely without

merit to justify the admission of the. “subjects of interest”

of the Committee through Senator McClellan: More spe-.

cifically, the inference to be drawn from the fact that

Sheridan went to the office of Joint Council 41 approxi- -

mately six months following the service of the’ subpoena

is that the Petitioner did not destroy any documents. For

if the Petitioner had the knowledge attributable to him,

by the Government, together with the ‘mens rea with

which he is accused, the documénts which investigator

Sheridan claims to have seen on September. 9, 1958, would -

not have been in the file to which he was granted access.

e

9

as a matter af fact. Even now the Government can only

*

—

o

a

ee, eee

1. It was never established with any degree of clarity |

what subject was undér inquiry by the Committee: Séna-_

tor McClellan was permitted to go into past ° ‘subjects of -

ete interest © which he related or read to the jury. Even on the

. Subject of investigating Bender as chairman of the “clean

up” committee. the most he could ‘muster to a leading

question, was, “there was some investigation in-that area” ;

(R. 34a).

‘The Chairman veined that the question was the u use of

union dues for the purchase of. Christmas gifts. but pro-

ceeded to narrate the “findings” concerning some of the

recipients of the gifts shown on the inyvice. Specifically

hé related the findings of those recipients whom he charac-

terized as having bad reputations. |

Sheridan testified to the pursuit of his investigation.

of Bender (R. 62a).- He also testified he. had nothing to do

with the arrangement for the production of documents of

Joint Council 41 to the field office. He knew the field of-

fice customarily gave receipts for documents produced by

“Joint Council Al. but he dad not know what documents bad .

heen produced (R. 96a). .

Sheridan stated that he was “aware” that some docu-

ments were not produced. but this awareness came from

conversations with Miss Thorpe and Mr. Reibesell over a

‘ period of tme (R 94a). He had no specific knowledge of.

the production of documents by Jomt Council 41 (R. 46a).

‘Inasmuch as Bende ’s affiliation with the “clean up”

committee became known to the Committeg in late August.

1958 (R. 28a. 30a, 62a3.-ahd Sheridan's “immediate pur-

_ pose” was to investigate the veracity of Mr. Hoffa's prom-

ise of a clean up. the question under inquiry to whieh the

~ subpoenaed documents could be relevant or pertinent is

- more than a littlé nebulous.

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ae .

—_—* _———_* : >

tee ol Ae acl

:

‘ 16

2. The reading of the testimony of Sheridan. was

clearly prejudicial to the Petitioner whether the reading

was suggested by the Senator or not. The statement of the

court's purpose in allowing the Senator to read the testi-

mony (R..37a) is either unintelligible or Is further indi-

_catipn that the Committee did not have complete knowl- °

edge concermng the pertinency “of this matter”.

The Petitioner in his testimony did dispute the facts

as Sheridan is reported to have testified before the Com-.

mittee. The Petitioner's main defense was that he was nut

guilty of any of the acts chargé against him. If the docu-

ments vaere torn or missifig that circumstance alone was

no proof that Petitioner had’ torn or secreted the docu- »

ments because he was away‘from his office most of the

time before Sheridan's visits and he did not have exclusive

control of the documents involved during that time (R. -

*\Gin). ;

o :

The direct conflict between Petitioner and Sheridan -

was their t ‘stimony as it related to Sheridan's visits to the

_ office of Joint Council 41. Both Sheridan and the Peti-,

tioner knew of the practice of giving receipts fof materials

of Joint Council 41 that was in effect between the Joint

- Coune:! 41 and the Committee Field. Office (R. ‘96a. 227a,

2284).

Sheridan's notes could not be iii as corrobo-

rative of his trial testimony because of the conflict that

isted between his testimony. and that of the Petitioner.

‘However, characterizing the notes as the chief corrobora-

tion of Sheridan's testimony is a tacit admission on behalf .

of the Government that Senator: McClellan's testimony

¢

was. in fet. meant to corroborate Sheridan.

_ ‘The Petitioner does indeed. contend that the Gov-°

ernment must ‘prove that the documents demanded were

pertinent to the ‘subject under inquiry by the Committee.

17

However, the character#Mtion of some of the recipients of

gifts as men of bad ch racter taken from “‘specia! findings”,

which in no way concerned the Petitioner or Jomt Council

‘41; is extremely sophisticated evidence of proof of perti-

nency, or motive..

_ The charactérization of the recipients of the gifts also

formed thé basis-for the objectionable cross examination of

- the Petitioner. (R- 256a, 257a, 258a) and the very inflam-

matory argument of the presecutor to the jury (R. 34a ).

The Government scores the Petitioner for insisting

that the Government prove that the proper names on the

demanded documents were pertinent to the subject under

inquiry ‘and then for objecting to the testimony identifying

*, the persons to whom the champagne buckets had been _

given as evidence of such pertinency (Br.-53). “However,

_ at no time during the trial following the admission of the

“special findings” of the Committee wasgthat evidence

used for any purpose except the character® tion of Peti-

tioner. >

The fact that the Interim Report did not ge tothe jury

roont is without merit because the prejudicial parts had

been fully aired before the jury" .

- :

Although that portion of the Interum Report which we

used before the yury was never submitted to the mary during its

deliberations. a much greater portion of the Interim Report wa

filed asa part of the regord in the Petitioner's appeal to the Corirt

“of-Appecl for the Sixth Circuit. The Petitioner filed a yacte:

to strike the entire record on the ground thag it had not hoon, ad-

rmutted into evidence. The Gove rment sought to justify the in-

clusion of the Interim Report (Ro S88-403) on the ground that

itis a pubhe document and was inserted for the convenience. of

the court. The-Court of Appeals held the motion until the tine

ol orale argument on the merits. That motion has never been

, Fule d upon

—P

oor

- sio

onsidered as a matter of fact, and fail to deprive the bt k

18

4. The. prejudice of the Chairman’ s conclusions is set .

out in II A. 6 above.

: However, it 1s not * ‘entirely clear” to the Petitioner

that evidence (a* ‘major portion’ ’ being adduced to ‘show

motive) could form the basis for the Chairman’s conclu-

upon a matter of law which had been erroneously

er of a fair trial.

What is clearer to the Petitioner is that ii iutozed

reasons offered. to justi#¥ the action of the trial court are

sophisms. ne : ae ee |

| : -

CONCLUSION. .

_ For the reasons’ set forth above it is respectfully sub- ia

mitted that the Petitioner is entitled to the relief = for

in his Brief. | x

5

Epwin KNACHEL,

Joun G. CARDINAL,

Rosert E. Freep,

Attorneys for Petitioner.

Rees subntitted, ;

ot