260 F.2d 21 (4th Cir. 1958), 7637, Scales v. United States

Docket Nº:7637.
Citation:260 F.2d 21
Party Name:Junius Irving SCALES, Appellant, v. UNITED STATES of America, Appellee.
Case Date:October 06, 1958
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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260 F.2d 21 (4th Cir. 1958)

Junius Irving SCALES, Appellant,


UNITED STATES of America, Appellee.

No. 7637.

United States Court of Appeals, Fourth Circuit.

October 6, 1958

Argued June 13, 1958.

Certiorari Granted Dec. 15, 1958. See 79 S.Ct. 289.

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[Copyrighted Material Omitted]

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Telford Taylor, New York City (McNeill Smith, Bynum M. Hunter, Richmond G. Bernhardt, Jr., Greensboro, N.C.; Taylor, Scoll & Simon, New York City, and Smith, Moore, Smith, Schell & Hunter, Greensboro, N.C., on brief), for appellant.

Victor C. Woerheide, Atty., Dept. of Justice, Washington, D.C. (J. Walter Yeagley, Acting Asst. Atty. Gen., James E. Holshouser, U.S. Atty., No. Wilkesboro, N.C., Harold D. Koffsky, Philip R. Monahan, Bruce J. Terris and Jerome L. Avedon, Attys., Dept. of Justice, Washington, D.C., on brief), for appellee.

Before SOPER and HAYNSWORTH, Circuit Judges, and BARKSDALE, District Judge.

SOPER, Circuit Judge.

This appeal is taken from a judgment of conviction under the membership clause of § 2(a)(3) of the Smith Act of June 28, 1940, 54 Stat. 670, 671, which has been codified in the U.S. Code of Crimes and Criminal Procedure in the third paragraph of 18 U.S.C. § 2385, as follows:

'Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government 1 by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof-- Shall be fined not more than $10, 000 or imprisoned not more than ten years, or both, * * *.'

The indictment charges that during the entire period from January 1946 up to the date of the filing of the indictment on November 18, 1954, the Communist Party of the United States has been a society and group of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence as speedily

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as circumstances would permit; and that during the same period the defendant, Junius Irving Scales, in the Middle District of North Carolina and elsewhere, had been a member of the Communist Party of the United States, well knowing that it was and is a society and group of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence as speedily as circumstances would permit, the defendant intending to bring about such overthrow by force and violence as speedily as circumstances would permit.

The defendant was first tried and convicted under this indictment in April 1955, and was sentenced to imprisonment for six years; and the judgment was affirmed by this Court in 227 F.2d 581. The Supreme Court of the United States granted certiorari and after argument and confession of error by the United States, under the later decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, the judgment was reversed, Scales v. U.S., 355 U.S. 1, 78 S.Ct. 9, 2 L.Ed.2d 19. At the new trial in February 1958, the jury returned a verdict of guilty and the defendant was sentenced a second time to imprisonment for six years.

The defendant's first point is a repetition of the contention, rejected by this Court on the first appeal, 227 F.2d 586-588, that the membership clause of the Smith Act is invalid on its face under the First and Fifth Amendments since it abridges freedom of speech and imputes guilt merely from association unaccompanied by unlawful conduct. It is admitted that the Supreme Court has upheld the validity of state statutes 2 which punish persons who organize or become members of a society or group formed to advocate or teach criminal anarchy; and also that in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, the Supreme Court upheld that constitutionality of the advocacy and organization provisions of the Smith Act. But it is pointed out that in none of these cases were the defendants accused only of membership in the criminal organization, and that the statutes were held not to offend the First Amendment because they were designed to meet a clear and present danger to the state by prohibiting unlawful conduct in which the defendants had participated.

Specifically it is said that the Dennis decision was based on findings that the defendants were parties to an existing conspiracy which endangered the safety of the nation since it involved not merely the exposition of an idea but also the advocacy of unlawful action as well as personal intent on the part of the defendants to overthrow the government. Arguing that the membership clause of the Smith Act is constitutionally defective, the appellant seems to say that the clause does not require that the offender be engaged in any unlawful advocacy or party activity, either alone or in concert with other persons, but only that he be a member of the organization with knowledge of its purposes to overthrow the government by violence and hence 'membership' as defined in the Act is merely the status and state of mind of a single individual and does not involve a clear and present danger to the state.

The argument is not persuasive since it fails to give proper weight either to the terms of the statute or to the Dennis decision in which §§ (2)(a)(1) and (a)(3) and § 3 of the Act were specifically held to be constitutional, or to the decision in Yates v. U.S., 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356, where the statute was interpreted and the Dennis decision was explained and approved. The terms of the membership clause are not satisfied merely by membership in a Communist group. The requirements

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are that the accused be a member of a society or group who teach, advocate or encourage the overthrow of the Government of the United States by force or violence knowing the purposes of the society or group. In view of these provisions the Supreme Court in the Dennis case rejected the argument which is now presented to us in the following passage in its opinion, 341 U.S. 494, 502, 71 S.Ct. 857, 863, 95 L .Ed. 1137:

'The very language of the Smith Act negates the interpretation which petitioners would have us impose on that Act. It is directed at advocacy, not discussion. Thus, the trial judge properly charged the jury that they could not convict if they found that petitioners did 'no more than pursue peaceful studies and discussions or teaching and advocacy in the realm of ideas.' He further charged that it was not unlawful 'to conduct in an American college and university a course explaining the philosophical theories set forth in the books which have been placed in evidence.' Such a charge is in strict accord with the statutory language, and illustrates the meaning to be placed on those words. Congress did not intend to eradicate the free discussion of political theories, to destroy the traditional rights of Americans to discuss and evaluate ideas without fear of governmental sanction. Rather Congress was concerned with the very kind of activity in which the evidence showed these petitioners engaged.'

This view was developed and explained in Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356, where the Court said that it had long recognized the distinction between advocacy of abstract doctrine and advocacy directed at promoting unlawful action, and that the legislative history of the Smith Act shows beyond all question that Congress was aware of this distinction and hence it could not be assumed that Congress chose to disregard a constitutional danger zone so clearly marked. The Court therefore found it unnecessary to decide the issue in terms of constitutional compulsion and held that it was the purpose of Congress to prohibit the advocacy and teaching of concrete action for the forcible overthrow of the Government and not of principles divorced from action. Showing that the decision in the Dennis case was in harmony with this interpretation, the Court said (354 U.S. at pages 321 and 322, 77 S.Ct. at page 1078):

'* * * The essence of the Dennis holding was that indoctrination of a group in preparation for future action, as well as exhortation to immediate action, by advocacy found to be directed to 'action for the accomplishment' of forcible overthrow, to violence as 'a rule or principle of action, ' and employing 'language of incitement, ' id., 341 U.S. at pages 511-512, 71 S.Ct. at page 868, is not constitutionally protected when the group is of sufficient size and cohesiveness, is sufficiently oriented towards action, and other circumstances are such as reasonably to justify apprehension that action will occur. * * * As one of the concurring opinions in Dennis put it: 'Throughout our decisions there has recurred a distinction between the statement of an idea which may prompt its hearers to take unlawful action, and advocacy that such action be taken.' Id., 341 U.S. at page 545, 71 S.Ct. at page 885. There is nothing in Dennis which makes that historic distinction obsolete.'

The appellant seeks to distinguish these decisions from the pending case because in them the defendants were charged with conspiracy to violate the teaching and organization clauses of the statute, whereas in the pending case the indictment charges the substantive offense of membership. The distinction is without significance on the issue of constitutionality. The Scales indictment charges a guilty knowledge of the illegal purposes of the organization and the

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specific intent on the part of the defendant to bring them about as speedily as circumstances will permit. 'No one could conceive, ' said Chief Justice Vinson in Dennis v. United States, 341 U.S. at page 501, 71 S.Ct. at page 863, 'that it is...

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