Brandt v. United States, 13083-13088.

• Decision Date: 23 May 1958
• Docket Number: No. 13083-13088.,13083-13088.
• Citation: 256 F.2d 79
• Parties: Joseph BRANDT, Appellant, v. UNITED STATES of America, Appellee. Lucille BETHENCOURT, Appellant, v. UNITED STATES of America, Appellee. Martin CHANCEY, Appellant, v. UNITED STATES of America, Appellee. Frank HASHMALL, Appellant, v. UNITED STATES of America, Appellee. Anthony KRCHMAREK, Appellant, v. UNITED STATES of America, Appellee. George WATT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

256 F.2d 79 (1958)

Joseph BRANDT, Appellant, v. UNITED STATES of America, Appellee.

Lucille BETHENCOURT, Appellant, v. UNITED STATES of America, Appellee.

Martin CHANCEY, Appellant, v. UNITED STATES of America, Appellee.

Frank HASHMALL, Appellant, v. UNITED STATES of America, Appellee.

Anthony KRCHMAREK, Appellant, v. UNITED STATES of America, Appellee.

George WATT, Appellant, v. UNITED STATES of America, Appellee.

Nos. 13083-13088.

United States Court of Appeals Sixth Circuit.

May 23, 1958.

Warren M. Briggs, and Ralph Rudd, Cleveland, Ohio, for appellants.

Sumner Canary, Cleveland, Ohio (Philip R. Monahan Carl G. Coben, Cyril S. Wofsy, John F. Middleton, Attys., Dept. of Justice, Washington, D. C., on the brief), for appellee.

Before MARTIN, McALLISTER, and STEWART, Circuit Judges.

McALLISTER, Circuit Judge.

In a jury trial lasting approximately fourteen weeks, the six appellants, Joseph Brandt, Lucille Bethencourt, Martin Chancey, Frank Hashmall, Anthony Krchmarek, and George Watt, were convicted of conspiring to violate the Smith Act, 18 U.S.C.A. § 2385, (1) by unlawfully, willfully, 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 such overthrow and destruction as speedily as circumstances would permit; and (2), by unlawfully, willfully, and knowingly organizing, 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 with the intent of causing such overthrow as speedily as circumstances would permit. Four other defendants, who were tried at the same time, Robert Alfred Campbell, Joseph Michael Doughner, Elvadore Claude Greenfield, and Frieda Zusker Katz, were found not guilty by the verdict of the jury.

On the trial, the government introduced evidence in support of the charges set forth in the indictment. The appellants have all been prominently identified with the Communist Party in the United States. Brandt, Bethencourt, Chancey, Hashmall, and Krchmarek were officials in the Communist Party in Ohio. Watt was secretary of the highest disciplinary body of the Communist Party in the United States, and for a number of years, was a party official in Pennsylvania.

However, after the verdict of the jury in the instant case, and pending the appeal to this Court, the Supreme Court handed down its opinion in Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356, and, as a result thereof, the Government here conceded that under the decision in the Yates case, a new trial is required, since the District Court failed to remove from the consideration of the jury the second charge in the indictment that appellants had organized to teach and advocate the overthrow of the government by force and violence.

Appellants here insist that they are entitled to be acquitted by this Court for insufficiency of the evidence to sustain the convictions; but appellee, while admitting that the "organizing" charge cannot be maintained, denies that appellants are entitled to an acquittal of the other charge of conspiracy to advocate and teach the overthrow of the government, as set forth in the indictment.

Aside from the "organizing" phase of the case, we find no error in the conduct of the trial or the instructions to the jury. The trial court properly overruled appellants' motion to dismiss the indictment on the ground that the jury box contained less than the required number of names of qualified persons at the time the grand jury was drawn; and it did not err in denying appellants' motion to be tried by the court without a jury, in the absence of consent thereto by the government.

With respect to appellants' contention that they are entitled to be here acquitted because of insufficiency of the evidence, this Court cannot, at the present time, arrive at any conclusion as to whether, upon another trial, the government will be able to produce evidence which, in view of the Yates decision, will make the question of appellants' guilt of conspiring to advocate and teach the necessity of overthrowing the government of the United States, within the meaning of the Smith Act, one of fact for the jury.

When a United States Court of Appeals reverses a District Court in a criminal case because the evidence is not sufficient to sustain a conviction, and the defendant had made all proper and timely motions for acquittal and for a new trial in the District Court, the Court of Appeals is not required to direct a judgment of acquittal, but may direct a new trial. Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335.

It is true that, in the Yates case, after the reversal of the judgment of convictions by the Supreme Court, the indictment was dismissed. But that dismissal was upon the Government's motion, which was based upon the ground that the prosecution "cannot satisfy the evidentiary requirements laid down by the Supreme Court in its opinion reversing the...