United States v. Mesarosh

• Decision Date: 13 June 1955
• Docket Number: No. 11169-11173.,11169-11173.
• Citation: 223 F.2d 449
• Parties: UNITED STATES of America v. Stephen MESAROSH, also Known as Steve Nelson, William Albertson, Benjamin Lowell Careathers, James Hulse Dolsen and Irving Weissman, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

223 F.2d 449 (1955)

UNITED STATES of America v. Stephen MESAROSH, also Known as Steve Nelson, William Albertson, Benjamin Lowell Careathers, James Hulse Dolsen and Irving Weissman, Appellants.

Nos. 11169-11173.

United States Court of Appeals Third Circuit.

Argued June 9, 1954.

Decided June 13, 1955.

Rehearing Denied August 11, 1955.

COPYRIGHT MATERIAL OMITTED

Thomas D. McBride, Philadelphia, Pa., Frank J. Donner, New York City, Ralph E. Powe, Philadelphia, Pa., for appellants.

D. Malcolm Anderson, Asst. U. S. Atty., Pittsburgh, Pa. (John W. McIlvaine, U. S. Atty., Pittsburgh, Pa., William G. Hundley, Francis L. Williamson, Lawrence K. Bailey, Attorneys, Department of Justice, Washington, D. C., on the brief), for appellee.

Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.

STALEY, Circuit Judge.

These are appeals from judgments of conviction entered against the appellants, Stephen Mesarosh (also known as Steve Nelson), William Albertson, Benjamin Lowell Careathers, James Hulse Dolsen, and Irving Weissman, after a jury had found them guilty of conspiring to unlawfully, wilfully and knowingly advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence, with the intent of causing the aforesaid overthrow and destruction of the Government of the United States by force and violence as speedily as circumstances would permit.¹

The appellants raise numerous objections to the judgments of conviction. Some of the objections are similar to those passed upon by other federal courts in cases commonly known as Smith Act cases.² Other objections are unique to this Smith Act prosecution, though by no means novel to the law. For reasons which follow, we have concluded after examination of the alleged errors that the judgments of conviction should be affirmed.

First, the appellants contend that the question of guilt should not have been submitted to the jury because sufficient evidence of certain essential elements in the prosecution's case was lacking. Specifically, it is urged that the evidence did not warrant jury conclusions that an agreement for illegal purposes existed among the appellants, nor that each appellant possessed the necessary illegal intent.

The government contended that the appellants as national, district, and state functionaries of the Communist Party agreed to teach and advocate the Marxist-Leninist doctrines, which doctrines, according to the government, called for the violent and forceful overthrow of the government as speedily as circumstances would permit. Certainly, there was sufficient evidence that the purpose of the reconstituted Communist Party in 1945 was to return to the fundamental principles of Marxism-Leninism. So much was admitted by one of the defense witnesses. Whether the agreement to teach Marxism-Leninism was in fact an agreement to teach the violent and forceful overthrow of the government was the point in issue, and on this the evidence was more than sufficient.

A former Communist Party functionary on the national and state levels testified that a return to the fundamental principles of Marxism-Leninism really meant a return to teaching and advocating the forceful and violent overthrow of the government. The prosecution introduced numerous passages from pamphlets and books used by the Communist Party to show that the fundamental principles of Marxism-Leninism included as a sine qua non to the proletarian revolution a forceful and violent overthrow of the United States Government. It is to be emphasized that the pamphlets and books introduced by the prosecution were not found in the ancient relic room of some public library. They were documents being used and distributed by Party members, including appellants, for instruction in Party classes. In addition, witnesses testified to declarations and Party classroom instructions by the defendants and others which supported the view that their advocacy of Marxism-Leninism included the violent overthrow of the government.

The evidence showed that the Marxist-Leninist doctrines considered certain principles of organization and action essential before a Party could hope to be successful in staging the proletarian revolution by force and violence. It was shown that the Communist Party of the United States utilized these basic techniques and principles. Democratic centralism by which strict discipline was maintained among Party members was the cornerstone of Party organization. The Party concentrated much of its activity among workers in key industries. Plans for underground operations by the Party were prepared and steps taken to implement such plans. The appellants would have us believe that these elements are really innocent of any connection with overthrow of the government by force and violence. But there was evidence that the laying of this groundwork was considered in Party literature as essential to successful forceful overthrow. The jury was quite justified in finding that, as the alleged Party conspirators were actively participating in the group which implemented and gave effect to these very teachings, their purpose and intent was actually the forceful overthrow of the government, rather than the academic discussion of devitalized Communist principles.

Ample evidence likewise existed to establish the necessary intent of each appellant. The appellants all held positions of rank in the Party at national, state, or district levels, and the testimony presented showed them to be most active leaders, instructors, and organizers, at times on practically a full-time basis in Party activities.

Evidence of these numerous roles as active Party leaders without more would have been sufficient to attribute to each defendant a full knowledge of the Party's purpose to bring about the forceful and violent overthrow of the government. But, in addition, as to each appellant there was evidence of declarations that would sustain a conclusion that they believed and taught that violent revolution was necessary to effect their purposes. At least three of them were quoted as declaring that force and violence were necessary to achieve success. Another in 1950 declared that the Communist Party gained control of youth in the Soviet Union before being able to wage the successful revolution of 1917, and so the Party had to gain control of youth in the United States in order to wage a successful struggle. The fifth spoke of the necessity of sabotage and its use to knock out specific key plants when the time came. These various declarations, combined with appellants' Party activity, more than sufficed as evidence of each appellant's illegal intent. They were not convicted because of membership or the holding of Party office per se, so that there was no violation of Section 4(f) of the Subversive Activities Control Act of 1950, 50 U.S.C.A. § 783 (f). Their guilt was shown to be personal and individual and not imputed merely on the basis of associations, membership, or official title. What was said by Judge Harlan (now Justice Harlan) in United States v. Flynn, 2 Cir., 1954, 216 F.2d 354, 360, is applicable to this case:

"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 89 L.Ed. 1441: `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 matters properly to be considered upon the `intent\' of any particular defendant. And the declarations of other co-conspirators, in furtherance of the conspiracy and within its purview, stand on no different footing. To permit such declarations to be considered on the issue of the `intent\' of a particular defendant, a prima facie case of conspiracy among the appellants and others having been made out, was not to impute to such defendant the intent of others, but was simply to include such declarations among the circumstances which the jury might consider in determining the individual intent of that particular defendant. This was entirely proper. `Intent\' as well as any other element of a crime may be proved by circumstantial evidence. United States v. Pierce, D.C.1917, 245 F. 878, affirmed, 1920, 252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 542; Nosowitz v. United States, 2 Cir., 1922, 282 F. 575. And the rule admitting acts and declarations of co-conspirators in furtherance of the conspiracy against all defendants applies equally to motive and intent as to other issues. See Wiborg v. United States, 1896, 163 U.S. 632, 658, 16 S.Ct. 1127, 1197, 41 L.Ed. 289; Pinkerton v. United States, 1946, 328 U.S. 640, 647, 66 S.Ct. 1180, 90 L.Ed. 1489."

Though some of the declarations were pre-1945, the evidence was nonetheless relevant and significant as to intent. Acts and declarations by appellants prior to the indictment period were significant in determining intent. See United States...