United States v. Flynn

Citation216 F.2d 354
Decision Date14 October 1954
Docket NumberNo. 150,Docket 22763.,150
PartiesUNITED STATES of America, Appellee, v. Elizabeth Gurley FLYNN, Pettis Perry, Claudia Jones, Alexander Bittelman, Alexander Trachtenberg, Victor Jeremy Jerome, Albert Francis Lannon, Louis Weinstock, Arnold Samuel Johnson, Betty Gannett, Jacob Mindel, William Wolf Weinstone and George Blake Charney, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

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Mary M. Kaufman and Harry Sacher, New York City, Delbert E. Metzger, Honolulu, and A. L. Wirin, Los Angeles, Cal., for defendants-appellants, Elizabeth Gurley Flynn, Pettis Perry, Claudia Jones, Alexander Bittelman, Alexander Trachtenberg, Victor Jeremy Jerome, Albert Francis Lannon, Louis Weinstock, Arnold Samuel Johnson, Betty Gannett, Jacob Mindel, William Wolf Weinstone and George Blake Charney.

J. Edward Lumbard, U. S. Atty. for the Southern Dist. of N. Y., New York City (James B. Kilsheimer III, Leonard B. Sand, and John H. Carroll, Asst. U. S. Attys. for the Southern Dist. of N. Y., New York City, of counsel), for appellee, United States.

Before CHASE, Chief Judge, and HINCKS and HARLAN, Circuit Judges.

HARLAN, Circuit Judge.

The thirteen defendants who appeal have been convicted of conspiring to violate the Smith Act by wilfully advocating and teaching the duty and necessity of overthrowing and destroying the Government of the United States by force and violence.1 The period of the conspiracy charged was from April 1, 1945 to June 20, 1951, the date of the filing of the indictment. The indictment also charged the defendants with conspiring to organize the Communist Party of the United States, in which each had held various official positions, as an instrumentality to carry on such teaching and advocacy,2 but the trial Court held that part of the indictment barred by the statute of limitations.

The trial, which was before Judge Dimock and a jury, lasted over eight months, and was preceded by a challenge to the petit jury array which was overruled by Judge Dimock after hearings extending over more than two weeks. The defendants also separately appeal from the order overruling that challenge.

Both appeals were argued together, and are so considered here.

The conspiracy charged was in substance the same as the one passed upon by this Court and the Supreme Court in United States v. Dennis, 2 Cir., 1950, 183 F.2d 201, affirmed 1951, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, the Dennis defendants being named in this indictment as co-conspirators, and as might be expected the Government's evidence paralleled very closely that in the Dennis trial.

As the appellants on this appeal do not directly challenge the sufficiency of the evidence as a whole to sustain their convictions, we need not consider the evidence in detail, save to say that we are satisfied that it was ample both to require the submission of the case to the jury and to sustain its verdict. Stated broadly, the points for reversal urged by the appellants relate to (1) asserted error in the Court's charge to the jury, (2) the inadmissibility of certain evidence, (3) the insufficiency of the evidence to establish a "clear and present danger," (4) the misconduct of some of the trial jurors, (5) the claim that the atmosphere in which the defendants were tried made a fair trial impossible, and (6) the denial of their challenge to the petit jury array. We proceed to consider these points in order.

1. The Court's Charge

The primary attack on the Court's charge is that over the timely objection of the defendants the jury was permitted to consider on the issue of a particular defendant's intent to cause the violent overthrow of the Government the acts and declarations of co-conspirators during the course of the alleged conspiracy, without proof that they had been authorized or approved by such defendant. The claim on this branch of the argument is not that the Government failed prima facie either to establish the alleged conspiracy or to connect any of the appellants with it by competent evidence, but rather that the ordinary rule admitting against all defendants the acts and declarations of co-conspirators in furtherance of a common illegal enterprise, and within its contemplation, does not apply at least in full sweep, to a conspiracy to violate the Smith Act.

The appellants frankly recognize their contention to be a novel one, and it seems to be implicit in their argument that the proposition is claimed to have validity only in the case of a criminal statute which, absent the requirement of a specific intent, would be unconstitutional for indefiniteness. The foundation stone of their position appears to be that the constitutional application of § 2(a) (1) of the Smith Act is dependent on the showing of a specific intent to cause the overthrow of the Government by force or violence through advocating and teaching the duty and necessity of such overthrow. It is said the proof of this intent is therefore clothed with a constitutional and not merely statutory quality, such that it can be shown only by the conduct and declarations of the defendant himself, or those of others which he has authorized or knowingly ratified, as in the instance of substantive crimes and derelictions such as were involved in Gordon v. United States, 10 Cir., 1953, 203 F.2d 248, reversed and remanded to District Court, 1954, 347 U.S. 909, 74 S.Ct. 473; United States v. Hall, 2 Cir., 1952, 198 F.2d 726, opinion of Judge Biggs, concurring in part, dissenting in part, certiorari denied 345 U.S. 905, 73 S.Ct. 641, 97 L.Ed. 1341; and In re Cary, D.C.S.D.N.Y.1882, 10 F. 622.

The appellants' argument encounters at the threshold an obstacle in the Dennis case, in which, as appellants seem to recognize, we found the Smith Act constitutional independently of its intent provisions. 183 F.2d at page 214. Appellants say, however, that the opinion of Chief Justice Vinson and those of Justices Frankfurter and Jackson, together representing the thinking of a majority of the Supreme Court, did not reflect the views expressed by Judge Learned Hand in this respect. We are unable to read those opinions as the appellants would have us do. On the contrary, we think that the Chief Justice's opinion simply expressed in different language what Judge Hand had stated. And it is clear that Justice Frankfurter's statement at 341 U.S. 551, 71 S.Ct. 888"To make validity of legislation depend on judicial reading of events still in the womb of time — a forecast, that is, of the outcome of forces at best appreciated only with knowledge of the topmost secrets of nations — is to charge the judiciary with duties beyond its equipment" — was not related to any significance which he considered the intent requirement to have upon the constitutionality of the Smith Act, but solely to his criticism of the applicability of the "clear and present danger" rule to a statute such as this. The same is true of the following statement of Justice Jackson at 341 U.S. 570, 71 S.Ct. 898, which appellants also quote in their brief: "If we must decide that this Act and its application are constitutional only if we are convinced that petitioner's conduct creates a `clear and present danger' of violent overthrow, we must appraise imponderables, including international and national phenomena which baffle the best informed foreign offices and our most experienced politicians. * * * The judicial process simply is not adequate to a trial of such far-flung issues. The answers given would reflect our own political predilections and nothing more." As we read their concurring opinions Justices Frankfurter and Jackson, for somewhat different reasons, found the Smith Act constitutional without reading into it the `clear and present danger' rule, and independently of its intent requirement.

But even were we to accept the appellants' premise, we think untenable the idea that the usual conspiracy rule applicable to "a run-of-the-mine conspiracy case" — to use a phrase of the appellants — should not be applied to a conspiracy to teach and advocate the necessity of the violent overthrow of our Government. In the case of so serious a crime as treason Justice Jackson in Cramer v. United States, 1945, 325 U.S. 1, 65 S.Ct. 918, 89 L.Ed. 1441, took occasion to repudiate the notion that ordinary rules can be made to vary dependent on the gravity of the offense.3 In the same type of case our concepts do not recognize one kind of law for one case and another kind for another. Indeed, in Dennis we applied ordinary conspiracy rules to a Smith Act conspiracy. 183 F.2d at page 230.

It is indeed true, as the appellants assert, that under criminal statutes involving proof of a specific intent a person may not be convicted simply on the basis of an "imputed" intent. He himself must be shown to have had the requisite intent. But it does not follow from this that proof of such an intent is limited to that particular person's own acts and declarations, whether the prosecution be for a substantive crime or for the crime of conspiracy. For as Justice Jackson said in Cramer v. United States, 1945, 325 U.S. 1, 32-33, 65 S.Ct. 918, 934: "Actions of the accused are set in time and place in many relationships. Environment illuminates the meaning of acts, as context does that of words. What a man is up to may be clear from considering his bare acts by themselves; often it is made clear when we know the reciprocity and sequence of his acts with those of others, the interchange between him and another, the give and take of the situation." So here, the relationships of the defendants and of others acting in concert with them; one with another, the defendants' positions of responsibility in the Communist Party, their activities in carrying forward the objectives of the party, and the nature of those objectives were all...

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