United States v. Silverman

• Decision Date: 11 September 1957
• Docket Number: Docket 24126.,No. 195,195
• Citation: 248 F.2d 671
• Parties: UNITED STATES of America, Appellee, v. Simon SILVERMAN, a.k.a. Sid Taylor, Joseph Dimow, Robert Champion Ekins, Jacob Goldring, and Martha Stone, a.k.a. Mrs. Emil Asher, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

248 F.2d 671 (1957)

UNITED STATES of America, Appellee, v. Simon SILVERMAN, a.k.a. Sid Taylor, Joseph Dimow, Robert Champion Ekins, Jacob Goldring, and Martha Stone, a.k.a. Mrs. Emil Asher, Defendants-Appellants.

No. 195, Docket 24126.

United States Court of Appeals Second Circuit.

Argued January 8, 1957.

Decided September 11, 1957.

On Petition for Rehearing October 25, 1957.

Frank J. Donner, New York City, Thomas I. Emerson, New Haven, Conn., and George F. Lowman, Stamford, Conn. (Joseph Mitchell Kaye, Greenwich, Conn., on the brief), for defendants-appellants.

Simon S. Cohen, U. S. Atty., Dist. of Conn., Hartford, Conn., and William F. O'Donnell, III., Atty., Dept. of Justice, Washington, D. C. (Francis J. McNamara, Jr., Asst. U. S. Atty., New Haven, Conn., and Harold D. Koffsky and John C. Keeney, Attys., Dept. of Justice, Washington, D. C., on the brief), for appellee.

Before CLARK, Chief Judge, and HINCKS and WATERMAN, Circuit Judges.¹

On Petition for Rehearing before the Court En Banc October 25, 1957.

CLARK, Chief Judge.

The five defendants herein appeal from a judgment of conviction after verdict of a jury on charges of having conspired to violate the Smith Act, 18 U.S. C. §§ 2385, 371, by "unlawfully, wilfully and knowingly advocating and teaching 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."² Three other defendants were also indicted; of these the jury acquitted one and disagreed as to another, while the third, who was convicted, has not appealed his suspended sentence.

Among other allegations of error appellants claim that they were unconstitutionally compelled to stand trial to a jury despite their strenuous efforts to waive that form of trial; they were prejudged by the congressional findings in the Communist Control Act, 50 U.S.C. § 841; and their speech did not constitute a "clear and present danger," as defined in Supreme Court precedents. We do not decide these far-reaching issues, however, because we hold the evidence insufficient to establish the first element of the crime charged: the conspiratorial agreement. In this opinion we shall examine, first, the precise nature and content of the agreement charged and, second, the evidence adduced to establish it. Finally, we shall consider the nature of our direction to the trial court in the light of our conclusion as to the evidence.

Even though we are constrained to find error, it seems desirable to say that the trial judge conducted the lengthy proceedings with outstanding dignity and the utmost fairness, in the tradition of the best American jurisprudence. And his rulings certainly had a rational basis in what then seemed to be the Supreme Court's approach and also afforded the most direct, if not the only, method of facilitating a definitive determination of the legal principles involved. That the questions presented difficulty from the beginning is clear. For the case dealt with what have been termed with some reason "third-string" Communist party officials, who, with the single exception of Stone, were merely local Connecticut functionaries, and with a conspiracy limited by the statute of limitations to the period March 1952 to March 1955, but alleged to be part of the continuing national conspiracy found in other cases to have been formed in 1945. The chains of connection with the heart of the often recognized Communist conspiracy are thus much longer and decidedly more tenuous than in the other cases we have had. The problem thus presented has been clarified since the conclusion of the trial by the very recent decisions of the Supreme Court, notably Yates v. United States, 77 S.Ct. 1064, 1073-1085, requiring for a conviction proof of an "advocacy of action," rather than "advocacy or teaching of abstract doctrines, with evil intent." We do not find here evidence of the necessary incitement to action.

Our discussion will follow the following outline:

I. THE AGREEMENT CHARGED

A. The Persons Involved.

B. The Aim of the Conspiracy.

II. THE PROOF

A. Evidence Covering the Years 1952-1955.

B. Oral Advocacy before 1952.

C. Written Advocacy before 1952.

D. The 1945 Agreement.

E. The Revolutionary Aims of the Communist Party.

III. THE DISPOSITION OF THE CASE ON REMAND

I. THE AGREEMENT CHARGED

A. The Persons Involved. The indictment charged a single conspiracy embracing the eight defendants, divers persons whose names were unknown to the Grand Jury, and some identified coconspirators: Andrew Onda, Betty Gannett, Joseph Roberts, William Z. Foster, Benjamin David, Eugene Dennis, John Gates, Gilbert Green, Gus Hall, Irving Potash, Jacob Stachel, Robert Thompson, John Williamson, Henry Winston, and Carl Winter. The role of these various defendants and named coconspirators can be appreciated only against the background of the Party hierarchy. Actually two hierarchies were involved, one state and one national, with the former responsible to the latter. By and large the defendants were involved in the state hierarchy, and the named coconspirators were involved in the national structure. Both state and national groups were overhauled in 1945 when they changed their name from political associations to parts of the Communist party; this event is the commencement of the conspiracy charged in the indictment.

The highest body in the reconstituted national party was the National Convention, but it met only briefly at scattered intervals. Between conventions the leadership groups, in descending order of importance, were the National Secretariat, the National Board, and the National Committee. Attached to them were various special organizations and boards. The only defendant who ever held a national post was the appellant Stone, who was a member of the New Jersey Delegation to the National Convention of 1948, an alternate member of the National Committee in 1951, and a member of the National Committee in 1953. Most of the named coconspirators held high national offices. Foster, Dennis, Davis, Gates, Green, Hall, Potash, Stachel, Thompson, Williamson, Winston, and Winter, according to testimony, were members of the National Board elected at the critical 1945 Convention. They were all indicted for violating the Smith Act and were convicted, with the exception of Foster, who was too ill to stand trial, in the original Dennis case in 1949, which was affirmed, United States v. Dennis, 2 Cir., 183 F.2d 201, and thereafter by the Supreme Court, 341 U.S. 494, 71 S.Ct. 857, 95 L. Ed. 1137. These Dennis case leaders and coconspirator Elizabeth Gurley Flynn were elected to the National Committee at the same convention. Flynn's conviction in 1952 for violating the Smith Act by conspiring with the Dennis case conspirators was affirmed in United States v. Flynn, 2 Cir., 216 F.2d 354, certiorari denied Flynn v. United States, 348 U.S. 909, 75 S.Ct. 295, 99 L.Ed. 713.

Coconspirator Onda was a delegate to the 1945 National Convention, where he represented the Communist Political Association in Connecticut. Coconspirator Gannett was the Assistant Organizational Secretary to the national organizational director of the Party from 1945 until at least 1950. Coconspirator Roberts was business manager of the publication The Daily Worker in 1947.

The Communist Party of the State of Connecticut was organized in the same fashion, with a secretariat, board, committee, and convention. The only named coconspirators active in it were Onda and Roberts. The former was the top leader of the State Party in 1945 and the latter was a District Organizer in Connecticut. Appellant Taylor (Silverman) was State Secretary from 1945 to 1950, when he became State Chairman — a post he held at the time the indictment was returned. Appellant Ekins became State Secretary in 1950 and held that post until 1954. Appellant Goldring was a member of the State Committee at various times from 1946 through 1954, was State Financial Secretary, Treasurer, and Press Director in 1949, and was State Executive Secretary in 1954. Taylor, Ekins, and Goldring were members of the State "concealed Board." Appellant Dimow held local offices in Connecticut from 1946 to 1949 and was a member of the State Committee in 1953 and 1954.

The interconnection of the state and national officers is an important question of proof, and we shall discuss it below in that context. But the evidence of connection must be noted here, too, in defining the issue presented by the charges. As the evidence developed, the national leaders were shown to have supervised operations within the state apparatus; and various persons in the conspiracy on the national level were shown to have met other persons involved in Connecticut affairs. Thus appellant Stone, although on the national level, met appellant Taylor, a state level leader, at several meetings in Connecticut in 1952 and 1953. Stone directed the concealed activities of the Connecticut Party at a time when appellants Taylor, Ekins, and Goldring were members of a concealed State Board. Coconspirator Gannett, in the national hierarchy, appeared at a state party meeting sponsored by appellant Taylor; and a former Connecticut State Chairman served at one time as Gannett's assistant. To take one out of innumerable instances in the record of liaison between state and national organization, Nat Ross from the National Office of the Party spoke once at a State Seminar in praise of the work of Joseph Stalin. The record contains scores of names of persons who held office or taught classes for the Party between 1930 and 1955 in various parts of the United States; and the jury was invited to believe that they, too, were part of the same single national conspiracy in which the defendants engaged between 1952 and 1955.

The Government's contention was that the...