Maurice E. Travis v. United States

This action is here on appeal for the second time. On the first appeal,1 this court set aside a conviction under the false statement statute, 18 U.S.C.A. § 1001,2 and ordered a new trial because of prejudicial error committed when the prosecutor was allowed to improperly cross-examine appellant's character witnesses. The present appeal is from a second conviction after retrial of the case in the United States District Court for the District of Colorado. Reversal is sought upon a claim of insufficiency of the evidence to support the verdict and numerous assertions of prejudicial error committed during the trial. Appellant also challenges the constitutionality of 18 U.S.C.A. § 3500 both as to its provisions and as construed and applied by the trial court.

The appellant, Maurice E. Travis, was convicted by a jury on four counts of an indictment charging him with falsely and fraudulently attesting that he was not an affiliate or member of the Communist Party in two "Affidavits of Non-Communist Union Officers" he executed as a national officer of the International Union of Mine, Mill and Smelter Workers.3 The first affidavit was executed on December 19, 1951, and the other on December 3, 1952, and Mine-Mill filed them with the National Labor Relations Board in compliance with the provisions of Section 9(h) of the National Labor Relations Act as amended by the Labor Management Act of 1947 (29 U.S.C.A. § 159(h).)4

Following conviction, appellant was fined $2,000 and sentenced to serve a four-year term of imprisonment on each of two counts of the indictment. No fine was imposed as to the remaining two counts, but he was sentenced to four-year prison terms on both to run concurrently with the terms imposed on the other counts. Thus, he was sentenced to a total of eight years in prison and fined $4,000.5

Since appellant challenges the sufficiency of the evidence we shall summarize that evidence urged by the government as ample basis for the jury verdict. This consists primarily of the testimony of three former Communist Party members who associated with Travis in various capacities as officers of Mine-Mill. Their testimony indicates that in 1942 Travis was employed by Mine-Mill as coordinator for the area of Northern California. He was at that time a member of the Communist Party with an assignment to carry on the Communist Party activities among the Mine-Mill workers in his area. Thereafter, he advanced to positions of prominent leadership in the Mine-Mill Union becoming Assistant to the President in 1946, Vice President in 1947 and President later that year. He has been Secretary-Treasurer of the Union from 1948 until the time of trial. There was extensive evidence of Travis' activities as a Communist Party member prior to 1949. No prolonged description of his actions will be undertaken here except to point out that as he progressed to positions of national leadership in Mine-Mill he was able to use those positions to further the interests of the Party. Illustrative of the scope of his activities is the evidence that in 1946 the Communist Party designated a group of its members who were prominent Mine-Mill leaders to coordinate the Communist activities within Mine-Mill with a view to controlling the Union proper. Although not an official organization of Mine-Mill, this group became known as the "Steering Committee." Travis was one of the initial members of the Steering Committee and its frequent meetings for planning Party strategy and organizing activities within the Union were usually presided over by him "or some other ranking Communist official." His influence in these meetings was notable. On one occasion he stated to the other committee members that since the Party had gained a majority of votes on the Executive Board of Mine-Mill they should effect certain changes in Union staff and that previous actions taken by the anti-Communist faction of the Board should be reversed. These proposals were subsequently adopted by the Mine-Mill Executive Board. On another occasion Travis, as a member of the Steering Committee, participated with national officers of the Communist Party in planning strategy for the selection and support of Party-approved candidates for the international offices of Mine-Mill. The resultant strategy was later substantially carried out at a Mine-Mill national convention.

In 1947, Congress amended the National Labor Relations Act so as to restrict enjoyment of the collective bargaining advantages of its provisions to labor organizations whose officers had filed affidavits attesting that they were not members of or affiliated with the Communist Party. 29 U.S.C.A. § 159 (h).

The government introduced into evidence a copy of a public statement made by Travis in the Union paper by which he declared that he had resigned from the Communist Party in order to comply with the new Taft-Hartley amendment. It then undertook to show that the resignation was merely a pretense and that in fact Travis' membership in the Party continued during the period material to this conviction. The evidence in this regard delineated a Communist labor meeting in New York called to decide whether the Party would advocate that its members sign the non-Communist affidavits under the new law. It was decided that Party policy would be against signing. Appellant participated in that meeting. Later, when he reported the decision to Party members of his own Union he asked his fellow Communist Gil Green if the teachings of V. Lenin, to the effect that Communists working inside trade unions must remain there at all costs, including the use of artifice or device to do so, were applicable to their situation. Green replied affirmatively and pointed out that labor leaders could circumvent the law by belonging to a "Thursday afternoon social club" since the law pertained only to present membership and not past or future membership.

Following the passage of the non-Communist affidavit requirement of the Taft-Hartley law, the Mine-Mill Executive Board adopted a policy of non-compliance, thereby exercising its option as provided by the Act. Non-compliance, of course, resulted in inability of the Union to receive the advantages of utilizing N.L.R.B. facilities for filing charges of unfair labor practices and participation in Board elections. When it became apparent that loss of advantages to the Unions was causing difficulty, the Mine-Mill Executive Board by resolution reversed its previous position and adopted a policy of compliance. Travis was a member of the Executive Board when that decision was made. His statements to government witness Mason, set forth infra, at the time he wrote his "resignation statement" indicated that his action was in accordance with Communist Party policy. This resignation statement was published in the Union paper on August 15, 1949.6

The government evidence pertaining to appellant's continued Party membership after the resignation statement showed that in the fall of 1951 Travis used government witness Fred Gardner, who had been recently employed by Mine-Mill, to assist him in crossing the border into Canada. Travis explained to Gardner that he was having difficulty crossing the border because of his membership in the Party and the public resignation statement and that it would be easier to cross in Gardner's car because it would not be recognized by Canadian police. He stated that Gardner had come to him well recommended by the Communist Party of Cleveland, Ohio, and that he was glad of that. Travis expressed regret that his public resignation had been necessary in order for Mine-Mill to conform to the Taft-Hartley filing requirements and in discussing this he said that he "* * * believed it was a mistake because it gave the enemies of the Party an opportunity to use that in pointing out that his wasn't a true resignation from the Party, that actually it was done merely to conform to the Taft-Hartley affidavits. * * *"

Relative to membership after execution of the first affidavit (December 19, 1951), witness Mason testified that in March of 1952 Travis stated to him that the Soviet delegation at the World Federation of Trade Unions in Paris, France, was demanding that the "American left-wing unions" who had been expelled from the Congress of Industrial Organizations form a "third federation." He said that the Communist Party had left it up to those in the Unions to make the decisions and asked Mason what his view was. Travis expressed agreement with Mason's response that he opposed such a move and said that "the boys in the other unions" concurred and had left it to him, Travis, to communicate the reply to Paris.

The evidence postdating the execution of the second affidavit indicated that in March 1953 a staff conference of Mine-Mill was held in Denver, Colorado, for the discussion of organizational and political action. At this conference Travis handed to witness Mason a copy of the proposed conference agenda. Mason examined the outline of the legislative program contained therein which listed a number of items such as "repeal of the McCarran Act" and "fight against witch-hunting" and called Travis' attention to the fact that nothing was listed pertaining to betterment of workers. Travis agreed and directed that matters suggested by Mason be included. However, later that day, Travis told Mason "these other things, too, like repeal of the McCarran Act, are important, and he said `When they get us Communists they will be after people like you if we don't get these laws repealed.'"

In June 1953, witness Gardner was to be transferred by Mine-Mill to a new assignment in the Coeur d'Alene Mining District of Idaho. Travis instructed him to stop in Denver, Colorado, on his way to Idaho for a "briefing on the Coeur d'Alene situation." Pursuant thereto, Gardner met with Travis in Denver and was told that because of a factional dispute between Communist Party members of Mine-Mill in Coeur d'Alene he was to "remain aloof" from Party activity until further notified. Travis stated that he felt assured that the dispute would be resolved by the expulsion of the leader of the faction opposing the Party regional officers and instructed Gardner that once the problem was resolved he would be contacted by someone whom Travis would identify to him beforehand and that at that time Gardner could reactivate himself in the Party.

In August 1953, witness Mason had a conversation with Travis in Butte, Montana, in which he accused appellant and his Communist Party associates of trying to undermine the leadership of Mine-Mill District Number 1 while they were in the midst of a bargaining conflict with employers. Mason stated that he was aware that this was done because the District 1 leadership opposed Communist domination of Mine-Mill, that some of the men in Montana were very angry about the situation and that he was addressing himself to Travis as the leader of the Party in the Union. Appellant made no denials but suggested that he would like to take the matter up with the "boys in Denver." He suggested that Mason meet him in a few days in Denver to talk things over. In compliance Mason met Travis in Denver and again expressed his opposition to various activities in Mine-Mill including his view that the Union paper constantly criticized the foreign policies of the United States without once attacking the position of the Soviet Union. Travis answered that Mason's position was in direct opposition to the Party and that he was not being realistic if he thought appellant could change the policies of the paper. Appellant continued, stating that the Communist Party leadership in Mine-Mill felt that there should be no compromises "and that he, Travis, is one of those in the Party who thinks that there have been too many compromises already, that [Mason did] not grasp the new situation, that the Soviet Union is becoming stronger, and that the position of the Communists in the Union has been stronger, we have been able to, he said, repulse the raid and hold this union and other unions." Mason threatened an open fight on the Communist issue and Travis pointed out that he would have seasoned fighters, the machine and the paper, to use against Mason in such a fight. Travis then concluded the conversation by telling Mason: "You and Joe [Mason's brother] were invited to get into the Party, had you done so, you would be sitting high in the councils of this organization with us, but you failed to do so."

Many of the points raised in appellant's brief were considered by this court in the recent case of Sells v. United States, 10 Cir., 262 F.2d 815, and need not again be treated at length. As to the evidentiary questions involved, the Sells case stands for the proposition that prosecution under the false statements statute is not defeated by a temporary "resignation" for the purpose of signing the affidavits only. Evidence of active participation on a continuing basis both before and after the crucial time of signing and filing the affidavit is sufficient evidence from which the jury might infer that membership continued during the time in question.

Appellant has urged that the per-jury rule of evidence must apply to convictions for false statements under Section 1001, 18 U.S.C.A., and that since the government's case is concededly circumstantial the evidence is legally insufficient to sustain the verdict, cf. Radomsky v. United States, 9 Cir., 180 F.2d 781; Spaeth v. United States, 6 Cir., 218 F.2d 361. However, in the Sells case, this circuit followed the view of the 7th and 9th circuits, that the court-established rule governing the quantum of evidence required in a prosecution for perjury, viz., falsity of the statement must be shown by the testimony of two independent witnesses or other corroboration, is inapplicable to a prosecution under Section 1001. United States v. Killian, 7 Cir., 246 F.2d 77; Fisher v. United States, 9 Cir., 231 F.2d 99; Fisher v. United States, 9 Cir., 254 F.2d 302; see also Hupman v. United States, 6 Cir., 219 F.2d 243. Hence, the trial court did not err in submitting the case to the jury without instructing in accordance with the perjury rule.

The evidence of Travis' continued membership in the Party stands uncontradicted. Appellant made no attempt to affirmatively rebut the government evidence on that issue nor did he introduce evidence of his purported resignation. Instead, his defense consisted primarily in extensive cross-examination of prosecution witnesses in an endeavor to impeach and discredit their testimony. He also introduced the testimony of character witnesses as to his reputation for truth and veracity. Of course, the absence of rebutting evidence in no way relieves the government from meeting the burden of proof. Nevertheless, it is a fundamental principle of appellate review in criminal cases that once the jury has concluded, as it did here, that the guilt of the accused was proven beyond a reasonable doubt, it is not the province nor the function of this court to weigh the evidence or to test the credibility of witnesses. United States v. Green, 7 Cir., 246 F.2d 155. Furthermore, we are limited in the scope of our review to a determination of whether there is substantial evidence to support the verdict, Wilcoxon v. United States, 10 Cir., 231 F.2d 384, and must view the evidence in the light most favorable to the government, Evans v. United States, 10 Cir., 240 F.2d 695. With these principles in mind, a careful review of the voluminous record persuades us that the jury verdict is amply sustained by cumulative proof that appellant's Communist Party membership was not severed by the purported resignation and that he was a Party member on the dates crucial to this decision.

There is no necessity to consider the sufficiency of the evidence under the "affiliation" counts of the indictment because no fines were imposed thereon and the prison sentences on those counts were made to run concurrently with the prison sentences of the "membership" counts. Lawn v. United States, 355 U.S. 339, at page 359, 78 S.Ct. 311, 2 L.Ed.2d 321; Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774; Roviaro v. United States, 353 U.S. 53, at page 59, footnote 6, 77 S.Ct. 623, 1 L.Ed.2d 639.

Appellant contends, but without merit, that the statements of the affidavits, shown by the evidence and found by the jury to have been false at the time they were made, were not "material" because the Union did not utilize the N.L.R.B. procedures after recognition by the National Labor Relations Board. Recognition was granted the Mine-Mill as a result of the Travis filing among others, which indeed must have been his intent in filing, and the false statement was "capable of influencing, the decision of the tribunal in making a determination required to be made," Weinstock v. United States, 97 U.S.App.D.C. 365, 231 F.2d 699, 701. The materiality of the false statement is tested not by the Union's use of the N.L.R.B.'s facilities but by the Union's achievement thereby of a status which carries with it the right to invoke the benefit of the National Labor Relations Act. Sells v. United States, supra.

The government's witness Eckert testified that during the time that he was a member of the Communist Party, 1931 to 1948, it was the continuing policy of the Party "that once having joined the Communist Party you could not leave without being expelled." Defendant objected to the introduction of the evidence, asserting that the testimony was based upon opinion unsupported by facts, that it was unconnected in time with the date of defendant's resignation in 1949 or the filing of the affidavits in 1951 and 1952, and that it was an attempt by the government to impute guilt by association.

Most assuredly, the evidence was probative of the second side of the question of membership, i. e. whether the Party was willing to accept the defendant and recognize him as a member, and hence admissible, but without more it could show nothing of the state of mind of the defendant and could not show that he did not, in fact, resign from the Party on the date he claimed. As was said by Judge Bazelon in a special opinion written in Gold v. United States, 99 U.S.App. D.C. 136, 237 F.2d 764, 772, reversed on other grounds 352 U.S. 985, 77 S.Ct. 378, 1 L.Ed.2d 360:

"If no one can effectively resign from the Party, no union officer with appellant's history can ever comply with § 9(h) and the statutory phrase `is not a member' is precisely equivalent to `has never been a member.' This possibility Douds specifically rejects." See American Communications Association, C. I. O. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925.

Defendant sought to have given to the jury an instruction which could be understood to limit the purpose of the admission of this testimony, but the trial court ruled that, considered with other evidence in the record, the evidence was relevant and probative of whether or not defendant's resignation was a true resignation or a mere sham to obtain the benefits of the National Labor Relations Act for Mine-Mill. Upon this premise, counsel argued to the jury that numerous persons, including the government's witnesses, had left the Party, regardless of the Party's policy.

Whether or not the jury could properly infer from the related evidence that the defendant continued to act in obedience to this policy and that his resignation was understood to be in form only determines whether the court was correct in refusing to circumscribe its use by the jury. I Wigmore, Evidence, sec. 13.

In 1948, a meeting in New York City was held among persons of significance in the trade unions and the Communist Party7 including the defendant and the government witness Eckert, who related what transpired. The National Trade Union Secretary of the Communist Party presided and stated that the purpose of the meeting was to determine whether or not Communist officials in the unions should be granted permission by the Party to sign the non-Communist affidavits. Despite speeches protesting that the unions were not appearing on election ballots because of lack of compliance with the law, it was decided that Communist Union men would not sign the affidavits. Travis' reaction to the decision was one of support and obedience. The Mine-Mill adopted the policy of not signing the non-Communist affidavits.

Subsequently, Travis told another government witness, Mason, that the Union was becoming more and more concerned because of the losses of elections and that the Communist Party had been again discussing whether the Communist Union officials should sign the affidavits. In a second conversation with Mason in July, 1949, Travis offered him a copy of his resignation statement, which was later published in the Union's paper, and said that the statement had been cleared with Ben Gold and the Party people in New York. He told Mason that "the Party thinks this is the best policy for us in the unions to follow."

In October, 1951, Travis had a conversation with the witness Gardner: "* * * we very briefly discussed his resignation from the Party in which he pointed out that he believed that resignation, that public resignation was a mistake because it gave the enemies of the Party an opportunity to use that in pointing out that his wasn't a true resignation from the Party, that actually it was done merely to conform to Taft-Hartley affidavits, and they recognized, the enemies of the Party recognized that this was not an actual resignation, * * *."

Thus the evidence of the Party's policy was relevant in the interpretation of the defendant's statements and behavior, and is not analogous to the prohibited imputation drawn from membership alone that a member endorses fully all of the precepts of the Party. Cf. Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796; Nowak v. United States, 356 U.S. 660, 78 S.Ct. 955, 963, 2 L.Ed.2d 1048; Maisenberg v. United States, 356 U.S. 670, 78 S.Ct. 960, 2 L. Ed.2d 1056.

The charge that Eckert's testimony on this point was opinion unsupported by facts going to the main issue results from a confusion in the record as to whether Eckert was testifying as an expert. Eckert's position of knowing what Party policy was during the time of his membership was shown through evidence similar to that customarily evoked to qualify an expert, but he testified as to a fact within his knowledge rather than giving an opinion as an expert.

The trial court did not instruct the jury that there was a presumption, in absence of contradicting evidence, either that the Party's policy of no resignations continued or that Travis' membership, having been admitted prior to the alleged resignation and inferentially shown subsequent to that time, continued during the time the affidavits were filed. The factual effect of the evidence was left to the jury. That body might well have drawn an inference unfavorable to appellant. See Jencks v. United States, 5 Cir., 226 F.2d 540, 547, reversed on other grounds 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103.

Appellant urges that Eckert's testimony was remote, irrelevant and inflammatory because early in the proceedings defense counsel offered to stipulate that Travis had been a Party member from 1941 to August 1949 and Eckert could show no more than an adherence to Party principles until 1948. Since a man's state of mind must necessarily be shown from his statements and conduct, the prosecution bore the burden of demonstrating a continuation of activities and attitudes similar to those performed and held by Travis during the time of his admitted membership after the date of his purported resignation. The evidence of how extensively, actively and zealously Travis had worked as a Party member and his leadership in the Party was clearly relevant to the question of whether or not the resignation was a mere pretense. If it is true that evidence of Communist Party activities has a tendency to provoke present-day juries toward prejudice, it is ridiculous to suppose that the attitude of the public against a crime will prevent its prosecution. If the evidence has probative value, it is ordinarily admissible regardless of an imagined reaction of the jury, Suhay v. United States, 10 Cir., 95 F.2d 890.

Appellant insists that the trial court improperly restricted his cross-examination of prosecution witnesses by not allowing him to show that witness Mason was a government informant through fear of deportation and that Eckert and Gardner were members of a labor organization with rival interests to those of Mine-Mill. As to Mason, the evidence showed that he had been a member of the Communist Party for a brief period in the early 1930's. In cross-examining Mason, defense counsel elicited the information that he had become a naturalized citizen in 1938 and that prior to his naturalization the United States Immigration and Naturalization Service had questioned him about his past Party membership. The defense then asked Mason if he was again questioned by that Service about the same matter in 1952. The government objected to the question as improper cross-examination and counsel were heard in chambers. The defense argued that it wanted to show that the witness had an interest in testifying. Counsel suggested that Mason knew that Congress passed the McCarran Act providing for deportation of aliens on grounds of past membership in the Communist Party and asserted that it sought to elicit evidence that government agents had held out promises or threats to Mason to induce him to testify. The government insisted that the purpose of the defense was merely to embarrass the witness. The court then addressed defense counsel as a member of the Bar of the Court and asked if he knew of anything which would substantiate the charge. Defense counsel responded that he had no knowledge of promises or threats but said he had been informed that during the pertinent period the witness was very concerned about his status as an alien and was "going around asking people questions" about it. The court then sustained the government objection stating that it did not think the inference that there were threats or promises was warranted.

Cross-examination of a witness is a matter of right, The Ottawa, 3 Wall. 268, 271, 18 L.Ed. 165, and cannot be circumscribed by the courts where the questions propounded are within the framework of his testimony on direct examination, except to the extent the witness himself claims privilege or constitutional protection. However, the demonstration of a witness' bias almost always requires a search of his conduct and the circumstances of his situation, which facts may be irrelevant to the issues at trial but important to the litigants as a safeguard against false or colored testimony. III Wigmore, Evidence, § 943. Prolonged digressions from the matters at hand for the purpose of exploring the manners and morals, hopes and fears, beliefs and conflicts of a personality whose connection with the trial occurs merely because of his position as a spectator can as readily abort the process of justice as can a denial of the right of cross-examination. Thus, it has long been held that the scope of cross-examination seeking to discredit the witness may be reasonably limited by the court responsible for the trial of the case. In Blitz v. United States, 153 U.S. 308, 312, 14 S.Ct. 924, 925, 38 L.Ed. 725, where a question seeking to impeach a deputy marshal was not permitted, the court stated:

"The question was clearly irrelevant, and was properly excluded. The reasons, whatever they may have been, that induced the witness not to arrest the defendant when the latter voted the second time in the same election, did not throw any light upon the issue to be determined. If the object was to test the accuracy or credibility of the witness, it is quite sufficient to say that the extent to which a cross-examination may be allowed for such a purpose — especially where, as in this case, the question had no reference to any matter disclosed by the examination-in-chief — is largely subject to the sound discretion of the trial court, and the exercise of that discretion is not reviewable upon writ of error; certainly not where the question, upon its face, suggests nothing material to the inquiry whether the defendant is guilty or not guilty of the specific offense charged in the indictment."

Certain classes of facts such as family relationship to a party have been held to so strongly give rise to inferences relevant to the witness' interest and bias as to leave no room for an exercise of discretion in admissibility. III Wigmore, Evidence, § 948. Among these always admissible circumstances is the fact that the witness for the prosecution is under indictment or in custody at the time of trial, Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624; District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843. But these cases do not govern the situation of the witness Mason in the present case and, in fact, reaffirm the view of the Blitz case that, in the absence of an abuse of discretion, the decision of permitting or excluding extrinsic evidence for impeachment purposes rests with the trial judge. As stated by Professor Wigmore, new circumstances will constantly be presented as suggestive of personal prejudice and the trial court must determine whether from the conduct, language or circumstances of the witness a palpable hostility to one party or sympathy for the other is inferable.

The inference that the witness Mason was coercively influenced to testify by a power over him held by immigration officials requires imagination to be applied in disparagement of facts appearing in the record. Mason is a naturalized citizen, not an alien subject to deportation. If wild surmise permit the deduction that he had committed a fraud in his application for citizenship by concealing his membership in a subversive group, which might be used to return him to an alien status, such conjecture is dispelled by his revelations to the Service in 1938. Therefore, we find no abuse of discretion on the part of the trial court in excluding the question as to the witness' more recent contacts with immigration officials.

As to the cross-examination of Eckert and Gardner, appellant urges that it was error for the trial court to sustain objections to questions concerning alleged rivalries between Mine-Mill and the labor organization then employing those two witnesses. The trial court in ruling on the matter expressed the view that any possible inference that could be drawn from a showing of such rivalry would be too remote to be relevant. In arguing that this was error, appellant cites authorities for the proposition that it is within the proper scope of cross-examination to show that the witness is testifying for his employer,8 that his employer has an interest in the recovery,9 is employed by the law firm representing the party for whom he testifies,10 or when his employer is a business competitor of the party against whom he testifies.11 He also cites a decision of this court to the effect that it is proper to probe the employment of a witness where he is an adjuster for a group of fire insurance companies, possibly interested in the suit, where the action sought damages for negligent installation of a furnace.12 However, none of those cases has gone so far as appellant asks that we go here. Each of those cases was a civil action in which the employer had some interest in the outcome of the suit. But this is a criminal action and it is brought against Travis, not against Mine-Mill. What appellant asks is that he be allowed to show rivalry between the Unions in order to impute prejudice against Mine-Mill to the witness and then asks the jury to infer therefrom bias against Travis. It is not reversible error to restrict cross-examination questions having only a slight and indirect bearing on the bias and credibility of a witness. District of Columbia v. Clawans, supra. The trial court correctly ruled that the evidence was too remote to be admissible.

Appellant next complains of the instructions to the jury concerning the meaning of membership in and affiliation with the Communist Party.13 He argues that the definition of "membership" used by the court was so all embracing and vague as to be meaningless destroying as a consequence any distinction between "membership" and "affiliation." We see no substance to this contention. In charging the jury with respect to the components of Communist Party membership and affiliation the trial court carefully followed the directions of this court expressed in the opinion on the first appeal.14 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 (50 U.S.C.A. § 844) and emphasized the primary element of membership as suggested by Mr. Justice Burton in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1019, 1 L.Ed. 2d 1103, 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.

The jury was told that Travis' membership in the Communist Party at the times alleged in the indictment was to be determined from "all the evidence in the case" and that they were not limited solely to consideration of the indicia of membership enumerated by the court. However, this in no way indicates, as appellant contends, that the jury was told it was free to consider anything in evidence as proof of membership. The court went on to clarify: "* * * it is your duty to consider all the evidence * * * which bears upon the question of whether or not the defendant was a member of the Communist Party on the dates alleged in the indictment." (Emphasis added.) Furthermore, it must be presumed that the jury, after such