Frankfeld v. United States

• Decision Date: 31 July 1952
• Docket Number: No. 6437.,6437.
• Citation: 198 F.2d 679
• Parties: FRANKFELD et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

198 F.2d 679 (1952)

FRANKFELD et al. v. UNITED STATES.

No. 6437.

United States Court of Appeals Fourth Circuit.

Argued July 1, 1952.

Decided July 31, 1952.

Rehearing Denied September 8, 1952.

Joseph Forer, Washington, D. C., Harold Buchman, Baltimore, Md., and Royal W. France, New York City, for appellants.

Leonard Boudin, New York City, and Dallas F. Nicholas, Baltimore, Md., on the brief of Emergency Civil Liberties Committee as amicus curiae.

I. Duke Avnet and Mitchell A. Dubow, Baltimore, Md., on the brief of certain members of the bar as amicus curiae.

Bernard J. Flynn, U. S. Atty., Baltimore, Md. (James B. Murphy and Frederick J. Green, Jr., Asst. U. S. Attys., Baltimore, Md., on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is an appeal in a criminal case in which appellants, hereafter called defendants, were convicted of conspiracy to violate the provisions of section 2 of the Smith Act of June 28, 1940, 54 Stat. 670, 671, 18 U.S.C.A. § 2385. That section, as brought forward in the United States Code, is as follows:

"Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or

"Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or

"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 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, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction."

The indictment in the case charges defendants with conspiracy to violate this statute "by (1) unlawfully, willfully, and knowingly advocating and teaching the duty and necessity of overthrowing 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; and by (2) unlawfully, willfully, and knowingly organizing, and helping to organize, as the Communist Party of the United States of America 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 the aforesaid overthrow and destruction of the Government of the United States by force and violence as speedily as circumstances would permit."

The language quoted was followed by allegations describing the conspiracy more in detail and setting forth that it was a part of the conspiracy (1) that defendants and other persons named would become members, officers and functionaries of "said Communist Party, knowing the purposes of said Communist Party" and would assume leadership and responsibility for carrying out its purposes, (2) that they would cause to be organized groups, clubs, sections and units of "said Communist Party" in the State of Maryland, in the District of Columbia, in the State of New York and elsewhere and would recruit and encourage recruiting members for the party "concentrating on recruiting persons employed in key basic industries and plants", (3) that they 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 soon as circumstances would permit", (4) that they would write and cause to be written articles and directives in publications of the Communist Party, "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", (5) that they would conduct schools and classes in which recruits of the party would be instructed in its doctrines and purposes; (6) that they would agree upon and carry into effect detailed plans for "going underground" or maintaining the working efficiency of the party in secret in case of emergency, and (7) that they would use false names and do other things to conceal their identities and operations as members of the party. These allegations were followed by allegations of overt acts in fifteen separately numbered paragraphs.

Three questions are presented by the appeal: (1) whether the statute under which the prosecution was had is constitutional; (2) whether the evidence was sufficient to establish the guilt of the defendants under the statute; and (3) whether the case was correctly and fairly submitted to the jury. We think that all of these questions should be answered in the affirmative.

The Constitutionality of the Statute.

The validity of the statute under which defendants were convicted was thoroughly considered by the Supreme Court in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, which affirmed the decision of the Court of Appeals of the Second Circuit reported in 183 F.2d 201; and little need be added to what was there said on the question of constitutionality. The question presented is not one as to freedom of speech or as to the right to organize for proper political purposes, but goes to the power of the government to outlaw and punish conspiracies whose purpose it is to overthrow the government itself by force and violence. Modern history is replete with instances of the danger to the government inherent in such conspiracies; and there is nothing in the Constitution or in any sound political theory which forbids it to take effective action against that danger. If it may take action to protect itself from being overthrown by force and violence, it necessarily follows that it may forbid conspiracies having that end in view and may punish such conspiracies as criminal. In the absence of conspiracy the "clear and present danger" rule may furnish a satisfactory criterion of criminality in the case of ordinary speeches advocating force and violence; but such rule has no practical application to advocacy of violence in connection with conspiracies to overthrow the government, for the danger of such conspiracies is ever "clear and present". They are pregnant with potential evil, which, while hidden from view in normal times, is likely to assert itself as an irresistable force when some national crisis presents an opportunity for a putsch or a coup d' etat. As was well said by Chief Justice Vinson in the case of Dennis v. United States, supra 341 U.S. 494, 71 S.Ct. 867:

"Obviously, the words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required. The argument that there is no need for Government to concern itself, for Government is strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with ease needs no answer. For that is not the question. Certainly an attempt to overthrow the Government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is a sufficient evil for Congress to prevent. The damage which such attempts create both physically and politically to a nation makes it impossible to measure the validity in terms of the probability of success, or the immediacy of a successful attempt. * * *

"Likewise, we are in accord with the court below, which affirmed the trial court\'s finding that the requisite danger existed. The mere fact that from the period 1945 to 1948 petitioners\' activities did not result in an attempt to overthrow the Government by force and violence is of course no answer to the fact that there was a group that was ready to make the attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score. And this analysis disposes of the contention that a conspiracy to advocate, as distinguished from the advocacy itself, cannot be constitutionally restrained, because it comprises only the preparation. It is the existence of the conspiracy which creates the danger. Cf. Pinkerton v. United States, 1946, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489; Goldman v. United States, 1918, 245 U.S. 474, 38 S.Ct. 166, 62 L.Ed. 410; United States v. Rabinowich, 1915, 238 U.S. 78, 35 S. Ct. 682, 59 L.Ed. 1211. If the ingredients of the reaction are present, we cannot bind the Government to wait until the catalyst is added."

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