United States v. Fujimoto, Cr. No. 10495.

• Decision Date: 29 October 1952
• Docket Number: Cr. No. 10495.
• Citation: 107 F. Supp. 865
• Parties: UNITED STATES v. FUJIMOTO et al.
• Court: U.S. District Court — District of Hawaii

107 F. Supp. 865

UNITED STATES v. FUJIMOTO et al.

Cr. No. 10495.

United States District Court D. Hawaii.

October 29, 1952.

A. William Barlow, U. S. Atty., District of Hawaii, Honolulu, T. H., John C. Walsh, Howard K. Hoddick, Rex A. McKittrick, Thomas J. Mitchell, Sp. Assts. to the Atty. Gen., for plaintiff.

Bouslog & Symonds, Honolulu, T. H., Richard Gladstein, San Francisco, Cal., for defendants Charles Kazuyuki Fujimoto, Dwight James Freeman, Jack Wayne Hall, Eileen Toshiko Fujimoto and John Ernest Reinecke.

A. L. Wirin, Los Angeles, Cal., for defendants Jack Denichi Kimoto and Koji Ariyoshi.

WIIG, District Judge.

Defendants, under indictment and awaiting trial for conspiring to violate the Smith Act, 18 U.S.C.A. § 2385, filed a motion for reconsideration of the oral ruling made by the Court on February 5, 1952, 102 F.Supp. 890, denying all of the motions referred to therein; a motion to dismiss the trial jury panel and an amendment thereto; a motion for order transferring the place of trial; and a motion for additional peremptory challenges.

Argument on the motion for reconsideration of the oral ruling was granted, limited however to the Court's ruling on the motion to dismiss the indictment. Defendants urge that the indictment is insufficient with respect to allegations as to clear and present danger and intent.

A similar contention was made in United States v. Schneiderman, D.C., 102 F.Supp. 87, 97, and the Court, acting out of an abundance of caution, held that the indictment, substantially the same as the indictment herein, did "not allege the intent essential to charge that the means claimed to be employed by the conspirators would, if pursued, constitute any criminal offense against the United States." Thereafter, the grand jury returned a new indictment which included in the charging clauses the phrase "as speedily as circumstances permit" after the words "force and violence".

Indictments charging violations of the Smith Act, similar to the indictment in this case, have been attacked for the same and additional reasons in three other districts. In United States v. Dennis, 2 Cir., 183 F. 2d 201, 207, Circuit Judge Learned Hand, speaking of the indictment, said "* * * it is patent on the merest inspection that the indictment is sufficient; even had it not been, any variances would have been harmless error." Indictments of the same pattern have been upheld in United States v. Frankfeld, D.C., 101 F.Supp. 449, and upon motion for reconsideration in D.C., 102 F.Supp. 422; United States v. Flynn, D.C., 103 F.Supp. 925; and United States v. Fujimoto, D.C., 102 F.Supp. 890 (this case).

It was urged by the defendants that the Supreme Court of the United States in United States v. Dennis, 341 U.S. 494, 71 S.Ct. 857, 860, 95 L.Ed. 1137, did not pass upon the validity of the indictment because that issue was not before the Court. It is true that the Supreme Court granted certiorari limited to two questions: "(1) Whether either § 2 or § 3 of the Smith Act inherently or as construed and applied in the instant case, violates the First Amendment and other provisions of the Bill of Rights; (2) whether either § 2 or § 3 of the Act, inherently or as construed and applied in the instant case, violates the First and Fifth Amendments because of indefiniteness." The final paragraph of the majority opinion, written by Mr. Chief Justice Vinson, reads:

"We hold that §§ 2(a) (1), 2 (a) (3) and 3 of the Smith Act, do not inherently, or as construed or applied in the instant case, violate the First Amendment and other provisions of the Bill of Rights, or the First and Fifth Amendments because of indefiniteness. Petitioners intended to overthrow the Government of the United States as speedily as the circumstances would permit. Their conspiracy to organize the Communist Party and to teach and advocate the overthrow of the Government of the United States by force and violence created a `clear and present danger' of an attempt to overthrow the Government by force and violence. They were properly and constitutionally convicted for violation of the Smith Act. The judgments of conviction are affirmed."

In construing and applying the appropriate sections of the Smith Act in the Dennis case, it is evident that the Supreme Court would not have decided the constitutional questions involved had the convictions been founded on insufficient indictments. Defendants strongly urged that Fontana v. United States, 8 Cir., 262 F. 283, a case involving the Espionage Act, supports their contention that this indictment is insufficient. The court has examined the Fontana case carefully, and other cases cited by defendants in their argument. They are not controlling in the present issue.

The motion to dismiss is denied.

The motion to dismiss the trial jury panel because the jury list from which it was drawn was not validly selected, and the amendment to the motion, sets forth four grounds in support of the proposition that the jury list was not selected in accordance with pertinent statutory provisions and constitutional requirements. The motion and the amendment are each supported by an affidavit of one of the defendants. In this connection, the Court has considered other motions and affidavits on file in this case which relate to the validity of the jury lists which are used to make up the grand jury and the trial jury panel.

Defendants urged in their oral argument and points and authorities submitted to the Court what they considered to be new matters affecting the validity of the trial jury panel, which were not considered by Circuit Judge Stephens in his ...