Bary v. United States

• Decision Date: 23 August 1957
• Docket Number: No. 5240-5246,5240-5246
• Parties: Arthur BARY, also known as Achilles Diamantis Daramparis; Anna Bary; Harold Zepelin, also known as Harry Zepelinsky; Lewis Martin Johnson; Joseph William Scherrer; Maia Scherrer, also known as Maia Turchin; Patricia Julia Blau, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

248 F.2d 201 (1957)

Arthur BARY, also known as Achilles Diamantis Daramparis; Anna Bary; Harold Zepelin, also known as Harry Zepelinsky; Lewis Martin Johnson; Joseph William Scherrer; Maia Scherrer, also known as Maia Turchin; Patricia Julia Blau, Appellants, v. UNITED STATES of America, Appellee.

Nos. 5240-5246

United States Court of Appeals Tenth Circuit.

August 23, 1957.

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COPYRIGHT MATERIAL OMITTED

William A. Bryans, III and Forrest C. O'Dell, Denver, Colo., and Mary M. Kaufman, New York City (Bryant O'Donnell and Harry A. Frumess, Denver, Colo., on the brief), for appellants.

Thomas J. Mitchell, Sp. Asst. to Atty. Gen. of U. S., Philip T. White, Atty., Department of Justice, Washington, D. C., and Donald E. Kelley, U. S. Atty., Denver, Colo., for appellee.

Before BRATTON, Chief Judge, and PHILLIPS and LEWIS, Circuit Judges.

BRATTON, Chief Judge.

This was a prosecution for an alleged conspiracy to violate section 2 of the so-called Smith Act, 54 Stat. 670, 671. The offense laid in the indictment was that from on or about April 1, 1945, to and including the date of the return of the indictment, in the District of Colorado, and elsewhere, Arthur Bary, also known as Achilles Diamantis Daramparis, also known as Arthur Daramparis; Anna Bary; Harold Zepelin, also known as Harry Zepelinsky; Lewis Martin Johnson; Joseph William Scherrer; Maia Scherrer, also known as Maia Turchin; and Patricia Julia Blau; unlawfully, wilfully, and knowingly conspired with each other and with William Z. Foster, Eugene Dennis, John B. Williamson, Jacob Stachel, Robert G. Thompson, Benjamin J. Davis, Jr., Henry Winston, John Gates, Irvin Potash, Gilbert Green, Carl Winter, Gus Hall, and Elizabeth Gurley Flynn, co-conspirators but not defendants herein, and with divers other persons to the grand jury unknown, to commit offenses against the United States prohibited by section 2 of the Smith Act, 54 Stat. 671, 18 U.S.C. § 10 (1940 Ed.), and 18 U.S.C. § 2385 (1948 Ed.), in violation of 18 U.S.C. § 11 (1940 Ed.), being section 3 of the Smith Act, while such section remained effective, and thereafter in violation of 18 U.S.C. § 371 (1948 Ed.), by (1) 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 as speedily as circumstances would permit; and (2) by unlawfully, wilfully, and knowingly organizing, and helping to organize, as the Communist Party of the United States, a society, group, and assembly 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 indictment charged that it was a part of the conspiracy that the defendants and their co-conspirators would become members, officers, and functionaries of the Communist Party; would in those capacities assume leadership of the party and responsibility for carrying out its policies and activities; would cause to be organized groups, clubs, sections, and national, state, district, and city units of the party in the States of Colorado, Utah, New York, and elsewhere; would recruit, and encourage the recruitment of members of the party, concentrating upon recruiting persons employed in key basic industries and plants; would publish and circulate, and cause to be published and circulated, books, articles, magazines, and newspapers teaching and advocating the duty and necessity of overthrowing and destroying the Government of the United States by force and violence as speedily as circumstances would permit; would write, and cause to be written, articles and directives in the publications of the Communist Party, including but not limited to "Political Affairs", "Daily Worker", and "The Worker", teaching and advocating the necessity of overthrowing and destroying the Government of the United States by force and violence as speedily as circumstances would permit; would conduct, and cause to be conducted, schools and classes in which recruits and members of the Communist Party would be indoctrinated in the principles of Marxism-Leninism and in which would be taught and advocated the duty and necessity of overthrowing and destroying the Government of the United States by force and violence as speedily as circumstances would permit; would agree upon, and carry into effect, detailed plans for the vital parts of the Communist Party in the United States to go underground, in the event of emergency, and from such underground position to continue in all respects the conspiracy; would use false names and false documents in order to conceal their identities and activities as members and functionaries of the Communist Party; and would do other and further things to conceal the existence and operations of such conspiracy.

The defendants were without counsel. The court appointed eleven members of the Bar in Colorado to act as their counsel. Later, retained counsel represented one of them. Including recesses and intermissions, the trial consumed about sixty days. All of the defendants were found guilty and were sentenced to imprisonment for specified periods and to pay fines in specified amounts, respectively. Separate appeals were seasonably perfected and the causes were brought here on a single record. For convenience and clarity, appellant Arthur Bary will sometimes be referred to as Bary, appellant Anna Bary as Anna, appellant Harold Zepelin as Zepelin, appellant Lewis Martin Johnson as Johnson, appellant Joseph William Scherrer as Scherrer, appellant Maia Scherrer, as Maia, and appellant Patricia Julia Blau as Patricia.

A motion was filed in the case to dismiss the indictment. One ground of the motion was that the array of the grand jury was defective in that it was not selected, drawn or summoned in accordance with law; that there had been a systematic exclusion therefrom by the clerk and the jury commissioner of Negroes, persons of Spanish-American or Mexican descent, and other minority groups; that there had been a systematic exclusion of manual workers and wage earners; that the representation of Negroes, persons of Spanish-American or Mexican descent, other minority groups, manual workers, and wage earners, had been limited to token representation; that the array had been weighted in favor of and dominated by representatives of the owner-manager groups of the community; and that the clerk had failed to carry out the statutory and constitutional mandate to employ methods and procedures which would insure representation of a cross section of the community. And based upon similar grounds, a motion was lodged to quash the panel from which the petit jury would be drawn to try the case. While officials charged with the responsibility of selecting names of persons for service on grand and petit juries may exercise some discretion to the end that competent persons be selected, it is the long and unbroken tradition that methods and procedures must be employed which contemplate grand and petit juries from and truly representative of the cross-section of the community. It is not essential however that every grand jury or petit jury include representatives of all racial, economic, or social groups of the community. Neither is exact proportional representation of ethnic, economic, or social groups a prerequisite to validity. Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L. Ed. 839. But an indictment returned by a grand jury or a verdict of guilty returned by a petit jury in a criminal case cannot stand if representatives of such groups were systematically and arbitrarily excluded from the list of persons from which such grand jury or petit jury was chosen. Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866.

With these general principles serving as directing guides, the court conducted a hearing upon the challenge to the array of the grand jury and the panel of the petit jury. The clerk, three of his deputies, and the jury commissioner testified. A complete explanation was given of the methods and procedures employed in making up the lists from which arrays or panels of grand and petit juries were selected. And the crux of the testimony was that there had not been any systematic exclusion or token representation of Negroes, persons of Spanish-American descent, manual workers, wage earners, or members of lower economic groups. In connection with the challenge, appellants filed a motion for permission to examine the questionnaires sent out during the last ten years, and to examine other records in the office of the clerk. The court entered an order permitting appellants to examine the grand and petit jury panels for the last four years; permitting appellants to examine all of the questionnaires returned within the last four years but providing that the examination of the questionnaires should be made in the presence of an employee of the clerk and that such employee should keep the name and address on each questionnaire confidential; and permitting appellants to examine all letters, records, books, and other papers which may have been used by the clerk in selecting names for the arrays or panels during the last four years. Dissatisfied with the examination of the questionnaires in the manner specified in the order, appellants later filed a motion for permission to examine them completely. The thrust of the motion was for permission to examine the questionnaires particularly in respect to names and addresses of the persons who signed and delivered or forwarded them to the clerk. The motion was denied. And based in part upon the testimony adduced at the hearing, in part upon the records of the court, and in part upon its knowledge of conditions in...