106 F.Supp. 906 (S.D.Cal. 1952), CR. 22131, United States v. Schneiderman

Docket Nº:CR. 22131
Citation:106 F.Supp. 906
Party Name:United States v. Schneiderman
Case Date:August 18, 1952
Court:United States District Courts, 9th Circuit, Southern District of California

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106 F.Supp. 906 (S.D.Cal. 1952)




Cr. No. 22131.

United States District Court, S.D. California, Central Division.

Aug. 18, 1952

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Walter S. Binns, U.S. Atty., Norman Neukom, Asst. U.S. atty., Ray H. Kinnison, Asst. U.S. Atty., Los Angeles, Cal., Lawrence K. Bailey, Sp. Asst. to Atty. Gen., for plaintiff.

Ben Margolis, Los Angeles, Cal., for defendants Oleta O'Connor Yates, Mary Bernadette Doyle and Albert Jason Lima.

Norman Leonard, San Francisco, Cal., for defendants Loretta Starvus Stack, Ernest

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Otto Fox, also known as Ernest Otto Fuchs, and Frank Carlson, also known as Solomon Szkolnick.

Leo A. Branton, Jr., Los Angeles, Cal., for defendants Henry Steinberg, Ben Dobbs, also known as Benjamin Isgur and Carl Rude Lambert.

A. L. Wirin, Los Angeles, Cal., for defendants Al Richmond, also known as Abraham Richman, Rose Chernin Kusnitz and Frank Efroim Spector.

Alexander H. Schullman, Los Angeles, cal., for defendants Philip Marshall Connelly and Dorothy Healey Connelly, charged as Dorothy Rosenblum Healey.

MATHES, District Judge.

Fourteen defendants herein have been tried and found guilty by the jury of conspiring to commit offenses against the United States, 18 U.S.C.A. § 371, prohibited by the Smith Act, 54 Stat. 670 (1940); 18 U.S.C. (1946 ed.) § 10; id. (1948 ed.) § 2385, 'by (1) wilfully * * * advocating and teaching the duty and necessity of overthrowing the Government of the United States by force and violence * * * and by (2) wilfully * * * helping to organize as the Communist Party of the United States of America * * * persons who teach and advocate the overthrow * * * of the Government of the United States by force and violence, with the intent of causing the * * * overthrow * * * of the Government * * * by force and violence as speedily as circumstances would permit.'

At the close of the Government's case in chief, the defendants moved for a judgment for acquittal pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., and this motion was denied. Upon the close of the evidence, the motion was renewed, ruling was reserved, and the case was submitted to the jury. The defendants now urge that the motion be granted and a judgment of acquittal entered notwithstanding the verdict, Fed. R. Crim. P. 29(b). An alternative motion for a new trial, Fed. R. Crim. P. 33, and a motion in arrest of judgment, Fed. R. Crim. P. 34, are also presented.

Rule 29(a) directs the court to 'order the entry of judgment of acquittal * * * if the evidence is insufficient to sustain a conviction * * *.' The rule is silent as to the test to be applied in measuring the sufficiency of the evidence to sustain a verdict of guilty.

In Curley v. United States, D.C. Cir., 1947, 81 U.S. App. D.C., 160 F.2d 229, 232, certiorari denied, 1947, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850, the court states: 'The true rule * * * is that a trial judge, in passing upon a motion for directed verdict of acquittal, must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt.'

There is an apparent conflict between the view thus expressed in Curley v. United States, supra, 160 F.2d at page 232, and that expressed in United States v. Feinberg, 2 Cir., 1944, 140 F.2d 592, 594, certiorari denied, 1944, 322 U.S. 726, 64 S.Ct. 943, 88 L.Ed. 1562, where Judge Learned Hand declared 'the standard of evidence necessary to send a case to the jury is the same in both civil and criminal cases; and * * * given evidence from which a reasonable person might conclude that the charged in an indictment was proved, the court will look no further, the jury must decide, and the accused must be content with the instruction that before finding him guilty they must exclude all reasonable doubt.'

But the 'true rule' of the Curley case and the 'standard of evidence' set up in the Feinberg case are found upon analysis to be one and the same. See United States v. Cohen, 2 Cir., 1944, 145 F.2d 82, 86, certiorari denied, 1945, 323 U.S. 799, 65 S.Ct. 553, 89 L.Ed 637; United States v. Andolschek, 2 Cir., 1944, 142 F.2d 503, 504. Both are obviously intended to clarify the oft-stated requirement that there must be 'substantial evidence' of guilt to warrant submission of the case to the jury. Cf. Pierce v. United States, 1920, 252 U.S. 239, 251, 40 S.Ct. 205, 64 L.Ed. 542; Stoppelli v. United States, 9 Cir., 1950, 183 F.2d 391, 393, certiorari denied, 1950, 340 U.S. 864, 71 S.Ct. 88, 95 L.Ed. 631;

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Crono v. United States, 9 Cir., 1932, 59 F.2d 339, 340.

As Judge Sanborn explained in Isbell v. United States, 8 Cir., 1915, 227 F. 788, 792-793: 'If there is, at the conclusion of a trial, no substantial evidence of facts which exclude every other hypothesis but that of guilt, there is no substantial evidence of the guilt of the accused, for facts consistent with his innocence are never evidence of his guilt. * * * This is the only question the court is required or permitted to determine * * * and where there (is) any substantial evidence inconsistent with the innocence of the accused, although it may have been contradicted and overwhelmed by the testimony to the contrary, the weight of the evidence, the credibility of the witnesses and the guilt or innocence of the defendant are left to the determination of the jury.'

Under our common-law system of justice the ultimate standard in the application of every rule is one of reasonableness. See Funk v. United States, 1933, 290 U.S. 371, 383-385, 54 S.Ct. 212, 78 L.Ed. 369; Pound, The Spirit of the Common Law, 182-183 (1921); Pound, Justice According to Law, 60 (1951).

In keeping with that standard the test in every case must be whether the evidence is such that the jury might reasonably base a finding of guilt thereon. If so, the evidence in support of the charge is held to be substantial and sufficient to sustain a conviction. Stoppelli v. United States, supra; 183 F.2d at pages 393-394; cf. Tennant v. Peoria etc. Ry. Co., 1944, 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520; Sioux City & P. Railroad Co. v. Stout, 1873, 17 Wall. (84 U.S.) 657, 663-665, 21 L.Ed. 745.

To apply the test- to review the evidence and determine whether the jury might reasonably base a finding of guilt thereon- involves three steps: First-finding every fact which the jury might reasonably find from the evidence in support of the verdict; Second- finding every fact which the jury might reasonably infer from all facts which the jury might reasonably find have been proved- i.e. drawing 'justifiable' or reasonable inferences of fact; and Third-determining whether all facts which reason permits to be found from the evidence in favor of conviction plus all facts which reason permits to be inferred therefrom are sufficient to enable a jury reasonably to find every essential element of the charge.

If the facts which reason permits to be found from the evidence and the inferences which reasonably may be drawn therefrom can be combined to make out proof of the crime charged, the evidence must be held sufficient to sustain a conviction and the motion for judgment of acquittal accordingly denied.

For if the evidence be such that the verdict of guilt falls within the bounds of reason- within that realm of the debatable where reasonable persons may differ- then the decision of the jurors as judges of the facts must stand, unless it appear that the force of some extraneous circumstance or influence prevented the jurors from functioning as the law contemplates a jury should function. See Mattox v. United States, 1892, 146 U.S. 140, 147-150, 13 S.Ct. 50, 36 L.Ed. 917; Rakes v. United States, 4 Cir., 1948, 169 F.2d 739, 745, certiorari denied, 1948, 335 U.S. 826, 69 S.Ct. 51, 93 L.Ed. 380; Baker v. Hudspeth, 10 Cir., 1942, 129 F.2d 779, 782, certiorari denied, 1942, 317 U.S. 681, 63 S.Ct. 201, 87 L.Ed. 546; cf. Dennis v. United States, 1950, 339 U.S. 162, 171-172, 70 S.Ct. 519, 94 L.Ed. 734; Frazier v. United States, 1948, 335 U.S. 497, 513, 69 S.Ct. 488, 93 L.Ed. 1072; Clark v. United States, 1933, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993; United States v. Ball, 1896, 163 U.S. 662, 674, 16 S.Ct. 1192, 41 L.Ed. 300.

Applying the stated test in the case at bar, it would seem beyond contention that the jury might reasonably have found from the evidence that the Communist Party is a 'group * * * of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence with the intent of causing the * * * overthrow and destruction of the Government * * *

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by force and violence as speedily as circumstances would permit.'

Indeed, there is persuasive argument that such is the common notoriety of this alleged objective of the Communist Party that the courts might properly take judicial notice of it. See Internal Security Control Act of 1950, § 2, 64 Stat. 987 (1950), 50 U.S.C.A. § 781(15); H. R. Rep. No. 2980, 81st Cong., 1st Sess. (1950); Dennis v. United States, 1951, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Joint Anti-Fascist Refugee Committee v. McGrath, 1951, 341 U.S. 123, 195, 71 S.Ct. 624, 95 L.Ed. 817; American Communications Ass'n v. Douds, 1950, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925;...

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