Yates v. United States, 13480.

• Citation: 225 F.2d 146
• Decision Date: 17 October 1955
• Docket Number: No. 13480.,13480.
• Parties: Oleta O'Connor YATES, Henry Steinberg, Loretta Starvas Stack, Frank Efroim Spector, William Schneiderman, Al Richmond, Albert Jason Lima, Carl Rude Lambert, Rose Chernin Kusnitz, Ernest Otto Fox, Ben Dobbs, Dorothy Healey Connelly, Philip Marshall Connelly and Frank Carlson, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

225 F.2d 146 (1955)

Oleta O'Connor YATES, Henry Steinberg, Loretta Starvas Stack, Frank Efroim Spector, William Schneiderman, Al Richmond, Albert Jason Lima, Carl Rude Lambert, Rose Chernin Kusnitz, Ernest Otto Fox, Ben Dobbs, Dorothy Healey Connelly, Philip Marshall Connelly and Frank Carlson, Appellants, v. UNITED STATES of America, Appellee.

No. 13480.

United States Court of Appeals, Ninth Circuit.

March 17, 1955.

Rehearing Denied June 15, 1955.

Certiorari Granted October 17, 1955.

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Margolis, McTernan & Branton, Leo Branton, Jr., Los Angeles, Cal., for appellants Dobbs, Lambert and Steinberg.

Dreyfus, McTernan & Lubliner, Benjamin Dreyfus, San Francisco, Cal., for appellant William Schneiderman.

Gladstein, Andersen & Leonard, Norman Leonard, San Francisco, Cal., for appellants, Carlson, Fox and Stack.

Margolis, McTernan & Branton, Ben Margolis, Los Angeles, Cal., for appellants Lima and Yates.

Alexander H. Schullman, Los Angeles, Cal., for appellants Dorothy Healy Connelly and Philip Marshall Connelly.

A. L. Wirin, Los Angeles, Cal., for appellants Kusnitz, Richmond and Spector.

Laughlin E. Waters, U. S. Atty., Ray H. Kinnison, Asst. U. S. Atty., Chief, Criminal Division, Norman W. Neukom, Asst. U. S. Atty., Chief Trial Asst., Los Angeles, Cal., Rex A. McKittrick & Lawrence K. Bailey, Sp. Assts. to Atty. Gen., for appellee United States.

Before STEPHENS, FEE and CHAMBERS, Circuit Judges.

Certiorari Granted October 17, 1955. See 76 S.Ct. 104.

JAMES ALGER FEE, Circuit Judge.

Defendants in this criminal case were convicted by a jury upon an indictment which charged them as participants in a conspiracy to commit crimes with the specific intent of causing the overthrow of the Government of the United States by force and violence as speedily as circumstances would permit. The trial lasted over a period of some six months, and the jury, before returning its verdicts, took six full days for deliberation. Each defendant has appealed from the judgment of conviction entered pursuant to the finding of the jury. Every phase of the indictment, the trial, the instructions and the theory of the Court has been raised by motion, objection, exception and assignment of error.¹

The impressive feature of this case is that practically every assignment of error urged in this appeal has been ruled upon by the Supreme Court of the United States in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 864, 95 L.Ed. 1137.² There the basic statute in the original form was held "inherently" constitutional and also as applied to a situation involving a similar conspiracy connected with the unlawful concert found to exist in the case at bar. In the main and concurring opinions, principles were laid down which are virtually conclusive here. The defendants, notwithstanding this positive holding, paradoxically complain that the trial court here denied their motion to take testimony on written interrogatories with respect to the impact of the Smith Act and its enforcement on First Amendment rights, and rejected an offer of proof on the ground that the Dennis decision had foreclosed any further proof of unconstitutionality on the facts then before that court.

Defendants principally contend, as they must to prevail, that the trial court here departed in the course of the trial from the mandate so laid down by the Supreme Court. A careful analysis must be made of the opinions of the highest court, the statute as then written and the indictment in that case in order to appraise the claims of error in the instant appeal.

The indictment in the Dennis case was drawn in accordance with the basic statute, which appeared as Sections 10 and 11 of Title 18 U.S.C. (1946 Ed.). Section 10, as originally enacted and as it was in force at that time, read as follows:

"(a) It shall be unlawful for any person —

"(1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government;

"(2) with the intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence;

"(3) to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof."

Original Section 11 read as follows:

"It shall be unlawful for any person to attempt to commit, or to conspire to commit, any of the acts prohibited by the provisions of sections 9-13 of this title."

In the light of this statute, the Supreme Court wrote the principles which defendants say the trial court here refused to follow in several essentials. First, it is contended that basic liberties guaranteed by the First Amendment and other constitutional provision were submerged by an expanding wave of restraint brought about by an improper application of the Smith Act. Second, they say the highest court required a finding of a clear and present danger from the conspiracy, and none was made at this trial. Third, defendants claim the approval of the Supreme Court of certain other striking phrases given currency in the trial of the Dennis case constituted positive fiat that these be used in all future cases.

First, the Supreme Court ruled definitely that constitutionally guaranteed rights, including freedom of speech, of publication and of assembly, were not violated by indictment and conviction under the Smith Act in the form above quoted. The courts were dealing there with substantive law as set out in that statute, which related to organization for the purpose of teaching and advocating overthrow. Section 11 of the Act as it then read, by use of the words "to conspire to commit," denounced as principals all who engaged in the attempt or in joint action to bring about the acts specified as criminal. Mere membership or officership in the Communist Party, insofar as that organization was shown by the evidence to teach the proscribed doctrine, might have been taken as proof against the individual defendant of joint action with others to bring about the end intended.

However, in face of the challenge of the dissents there, the Supreme Court held the nature of the joint activities of those involved was such as to bring about a "clear and present danger" and that, collectively, the conspirators had "power to bring about the evil." The latter phrase apparently meant that the setting in which the defendants there acted was such as to allow the court to conclude that the teachings might have resulted in an attempt at overthrow. It is true that, in accomplishing the result, the courts treated the Smith Act as though the substantive crime of conspiracy were charged. Moreover, the appellate courts approved the importation into the statute of a specific intent and object which was not expressly authorized by the wording of the particular section and which was not incorporated in the formal charge. As we shall see hereafter, the current indictment gave scope for these judicial additions.

Specifically in the second place, it is said the trial judge here violated principles there enunciated by failing to find a "clear and present danger" to the government by whatever the proof showed was said and done by defendants. In the Dennis case, with a factual situation typical of the case at bar, the highest court approved a statement as a matter of law by the trial judge that a clear and present danger there existed in virtue of acts and intent of the defendants in that group. If that were a true rule of law for the Dennis case, it is the rule of law here. For world conditions at the date of that trial had not changed for the better when trial in the instant case was had. It must be remembered that the eleven convicted defendants in that case were named in this indictment as co-conspirators although not made defendants. Much of the literature and writings introduced were identical, as was the general type of proof, although we attempt no comparison of the respective records. While an independent conspiracy was charged here, the design was as closely connected as to the previous combination as a spoke to the wheel.³ There organization was charged nationally, and here there was special emphasis on organization in California. The essential pattern was similar. Since this may not be the exact point of the contention, the matter will be considered in other connections later.

Finally, the opinion of the Court of Appeals and a concurring opinion in the Supreme Court gave approval of instructions of the trial judge in Dennis requiring the jury to find "language of incitement" was used by the conspirators there. Another phrase given approval is that the doctrine of destruction had become a "rule of action." In conjunction with an indictment based upon such a statute proscribing organization for the purpose of teaching and advocating overthrow, but which required neither proof of overt acts nor a specifically planned objective, such precautionary instructions were well enough. But these expressions of the judges in instructions in connection with the original statute established no unalterable requirement that such phrases themselves be used ipsissimis verbis where the changes in the basic law and an entirely different indictment predicated upon the conspiracy statute have rendered admonitions to a jury in such language supererogatory. Such claims have...