Albizu v. United States, 3174.

• Decision Date: 12 February 1937
• Docket Number: No. 3174.,3174.
• Citation: 88 F.2d 138
• Parties: ALBIZU et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

88 F.2d 138 (1937)

ALBIZU et al. v. UNITED STATES.^*

No. 3174.

Circuit Court of Appeals, First Circuit.

February 12, 1937.

Arthur D. Hill, of Boston, Mass., and Isadore Polier, of New York City (Francis G. Goodale and Mark DeWolfe Howe, both of Boston, Mass., Gilberto Concepcion de Gracia, J. M. Toro Nazario, Carlos D. Vazquez, Juan J. Fuertes, all of San Juan, P. R., and Vito Marcantonio, of New York City, on the brief), for appellants.

Amos W. W. Woodcock, Sp. Asst. to Atty. Gen., for appellee.

Before BINGHAM, WILSON, and MORTON, Circuit Judges.

WILSON, Circuit Judge.

This in an appeal from a judgment of the District Court of the United States for the District of Puerto Rico against Pedro Albizu Campos, Juan Antonio Corretjer, Luis G. Velazquez, Clemente Soto Velez, Erasmo Velazquez, Julio H. Velazquez, Juan Gallardo Santiago, and Pablo Rosado Ortiz.

The defendants were all indicted under three counts for conspiracy among themselves and with divers other persons whose names are to the grand jurors unknown, to overthrow, put down and destroy by force the government of the United States, and to oppose by force the authority of the United States. It was alleged in the first count as part of said conspiracy that the defendants, who were leaders, officers, and active members of the Nationalist Party of Puerto Rico, one of the duly organized political parties of Puerto Rico, undertook to procure, induce, incite, and encourage the members of the said Nationalist Party and divers other persons whose names are to the grand jurors unknown, to join with them to bring about the political independence of Puerto Rico from the United States by force and violence, and by an armed revolution against the United States.

It was alleged as a further part of said conspiracy that the defendants by personal solicitations, public speeches, and by writing and printing articles in certain newspapers, and by distributing publicly throughout Puerto Rico printed circulars, would urge the people of Puerto Rico to arm themselves in order to bring about the political independence of Puerto Rico from the United States by force and violence.

It was alleged as a further part of said conspiracy that the defendants would procure and cause to be procured by members of said Nationalist Party firearms, ammunition, other weapons, and military equipment, the exact description of which is to the grand jurors unknown, for the aforesaid purpose.

It was alleged as a further part of said conspiracy that the defendants would establish, maintain, and cause to be established and maintained by said Nationalist Party, its national council, municipal councils, and other branches, and by its officers, members, and other persons to the grand jurors unknown, recruiting stations located in the several cities and towns of Puerto Rico where they would register, recruit, and enlist, and cause to be registered, recruited, and enlisted members of said Nationalist Party for military service in a so-called Liberating Army for the aforesaid purpose.

It was alleged as a further part of said conspiracy that the defendants would direct, drill, and cause to be directed and drilled in military formations various groups of the members of said Nationalist Party, said groups being designated as Cadets of the Republic, or enlisted soldiers of the Liberating Army, and would give and cause to be given to said groups military instructions, including instructions in the use of firearms and other weapons.

In the second count it was further alleged that the said defendants did unlawfully, knowingly, and willfully conspire and agree with each other and with divers other persons to commit offenses against the United States, that is to say, to incite rebellion and insurrection against the authority and laws of the United States.

That it was a part of said conspiracy that the defendants would persistently and continuously urge and attempt to persuade a large number of persons by public speeches, written articles in various newspapers, circulars, and other writings, and radio broadcasts, that the political independence of Puerto Rico from the United States should be brought about by force and violence and by an armed revolution against the United States, in which the defendants individually and as leaders, officers, and members of the Nationalist Party of Puerto Rico would take a leading and active part.

And it was further alleged as part of said conspiracy that the defendants would utilize the organization, machinery, resources, and personnel of said Nationalist Party, its national council, and the various municipal councils for the aforesaid purpose.

Then follows in said second count allegations of certain overt acts, including delivery of speeches, public meetings, printing and circulating in Puerto Rico of certain newspapers containing articles and written statements and accounts of speeches, which persistently and continuously urged, incited, and exhorted the members of the Nationalist Party to arm themselves in order to bring about the political independence of Puerto Rico from the United States by force and violence and by an armed revolution against the United States.

In the third count it was alleged that it was a part of said conspiracy that the defendants, through and by means of the Nationalist Party of Puerto Rico, would open and cause to be opened recruiting stations for the recruiting and enlistment of soldiers in Puerto Rico to engage in armed hostility against the United States, and sets forth several overt acts by which one or more of the several defendants assisted in registering, enlisting, and recruiting members of the Nationalist Party and other men as soldiers to be known as the Liberating Army, for the purpose of engaging Puerto Rico in armed hostility against the United States, and sets forth certain overt acts in the carrying out of said conspiracy.

Upon trial before a jury all of the said defendants were convicted. The defendants Albizu, Corretjer, Luis F. Velazquez, Julio H. Velazquez and Juan Gallardo Santiago were convicted on all three counts; the defendants Clemente Soto Velez and Erasmo Velazquez were convicted under the first and second count; and the defendant Pablo Rosado Ortiz was convicted under the first and third counts. Each defendant was thereupon sentenced.

Each of the defendants appealed from the judgment of the District Court and assigned eighty-six errors, many of which are clearly without merit. The ones on which the defendants rely before this court were argued under the following heads:

1. Alleged error in the method of selecting the jury for the trial of the defendants.

2. Denial of a motion in arrest of judgment on the ground inter alia that three of the trial jurors had, prior to the trial, concealed their prejudice against the defendants.

3. That competent and relevant evidence was lacking to sustain the verdict as to any of the defendants.

4. That the District Court improperly admitted and allowed to remain on the record irrelevant and incompetent evidence, which had the result of inflaming the jury against the defendants.

5. That the District Court erred in allowing the United States attorney in his argument to the jury to make unfair remarks about the character of one of the defendants.

6. That the District Court in effect erroneously directed a verdict of guilty against the defendants Clemente Soto Velez and Erasmo Velazquez by instructing the jury that if in the opinion of the jury a certain handbill alleged to have been printed and circulated by said two defendants was issued for the purpose of inciting a rebellion or insurrection, then that alone constituted a conspiracy.

7. That the District Court erroneously instructed the jury that if a person, by speech or otherwise, uses language or his conduct is reasonably calculated to incite others to crimes of violence, then he is guilty under the second count, and, further, if one defendant by public speech or by circular or by an unauthorized article in a newspaper or magazine used language calculated to incite, and if it is done for the purpose of inciting the people to oppose the authority of the United States by force, then that makes out that conspiracy.

8. The District Court erroneously refused to admit evidence offered by the defendants concerning the program of the Nationalist Party.

As to the assignment of errors relating to the selection of the jury, there is only one act of Congress relating to the drawing of jurors in the federal courts which requires that the persons who are summoned as jurors must be drawn publicly from a box containing at least 300 names. Other than this, unless a federal court shall, by order, adopt the state practice, the method of selection is within the control of the federal courts, subject to any limitation placed thereon by Congress, or recognized by the settled principles of criminal law essential to securing an impartial jury. Pointer v. United States, 151 U.S. 396, 405-409, 14 S.Ct. 410, 38 L.Ed. 208.

On July 20, 1936, the court ordered the jury commissioner and the clerk of the court to draw from the jury box containing 300 names, in the manner provided by law, the names of 40 persons to serve upon the panel of petit jurors for the trial of this case, returnable July 27, 1936.

On July 24 the marshal, reporting that he was unable to find several of the persons drawn on July 20, a second order was issued by the court for the jury commissioner and clerk to draw, in the manner provided by law, the names of 15 additional jurors. On venires issued to the marshal, he made a return on July 27 that he had summoned 15 of the jurors thus selected; a second return on the same day that he had summoned 16 more jurors; a third return on the same day that he had summoned 4 more, or a total of 35; and a further return on July 27 that he had summoned 11 additional jurors. Thus it appears from the record that a total of 46 jurors...