Kremen v. United States
| Decision Date | 20 April 1956 |
| Docket Number | No. 14359.,14359. |
| Citation | 231 F.2d 155 |
| Parties | Shirley KREMEN, Carl Ross, Samuel Irving Coleman, and Sidney Steinberg, Appellants, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gladstein, Andersen & Leonard, & Sibbett, Richard Gladstein, Norman Leonard, San Francisco, Cal., for appellants.
Lloyd H. Burke, U. S. Atty., Robert H. Schnacke, Richard H. Foster, Asst. U. S. Attys., San Francisco, Cal., for appellee.
Before DENMAN, Chief Judge, and HEALY and LEMMON, Circuit Judges.
A depressing tale of lies, disguises, and aliases resorted to by a group of seasoned subversives, referred to by their own attorneys as "these Communists", is unfolded by the record in this case.
It is a tale of how a handful of Reds sought to shield a convicted member of their group from condign punishment.
It is a tale of the devious practices to which they resorted in their almost successful efforts to cheat the law.
It is, finally, a tale of how their deceptions and their subterfuges were frustrated at last by the patient labors of Federal "Cossacks", as officers of the law are sometimes contemptuously called by the Reds.
With regard to the means used by "the Communists" to help a pair of their leaders to thwart justice, it is naive indeed to expect to find them hiding in alleys, skulking in twilight corners, turning up their coat collars, or pulling their hats down over their eyes.
No; the hard-core members are far too adroit and well-instructed for such amateurish cloak-and-dagger technique. They select a quiet village, rent a cabin, and then, wearing shorts, play ping-pong in their front yard. Or they add touching domestic notes, hanging up the family wash or buying groceries at the village store.
The indictment was in four counts. The first count alleged that on October 14, 1949, Robert G. Thompson was convicted in New York for conspiring to (1) organize a society for the overthrow and destruction of the Government of the United States by force and violence; and (2) advocate and teach the overthrow and destruction of the Government by force and violence in violation of Sections 2, 3 and 5 of the Act of June 28, 1940, commonly known as the Smith Act. (18 U.S.C.A. 1940 ed. §§ 10, 11, 13; 18 U.S.C.A. § 2385, 1948 revision).
It was further averred that on August 27, 1953, near Twain Harte, Tuolumne County, California, the appellants,1 knowing that Thompson had been convicted of the above offense, "did receive, relieve, comfort and assist" him "in order to hinder and prevent his apprehension and punishment". This count was brought under 18 U.S.C.A. § 3, infra.
The second count charged that the appellants conspired to commit the offense charged in Count 1, and seven overt acts were set forth. 18 U.S.C.A. § 371.
The third count alleged that on August 27, 1953, the appellants Kremen, Coleman, and Rasi, also known as Ross, knowing that a warrant had been issued for the apprehension of the appellant Sid Stein, also known as Sidney Steinberg, harbored and concealed him so as to prevent his discovery and arrest, a warrant for his arrest having been issued by the United States District Court for the Southern District of New York. 18 U.S. C.A. § 1071.
The fourth count stated that the three appellants named in the third count conspired with each other, with Thompson, and with divers other persons to harbor and conceal Steinberg "so as to prevent his discovery and arrest", while those three appellants knew that a warrant for the arrest of Steinberg, under the name of Sid Stein, had been issued by the above-mentioned Court in New York on June 20, 1951. Thompson was named in this fourth count as a "co-conspirator but not as a defendant". Six overt acts were alleged. 18 U.S.C.A. § 371.
Motions to dismiss, for discovery and inspection, for a bill of particulars, for the issuance of pre-trial subpoenas, and for a return of property seized in the raid and its suppression as evidence were made by the appellants and were denied. The District Court did, however, rule that the appellants might, on demand, have a copy of the summarized list of items seized. Such a copy was furnished them, infra.
After a trial starting on April 12, 1954, and lasting two weeks, during which the appellants offered no evidence, each appellant was found guilty on all counts in which he or she was charged. Judgments of imprisonment were pronounced upon all of the appellants, from which judgments the present appeals were taken.
The following errors are asserted to have been committed by the court below, in the order in which they are discussed in the six subdivisions of the appellants' opening brief, and in the order in which they will be considered herein:
1. Sections 3 and 371 of 18 U.S.C.A. were construed and applied under the first and second counts of the indictment in a manner violative of the due process guarantees of the Fifth Amendment.
2. The search and seizure were unlawful and it was error to deny the motions to suppress.
3. The evidence is insufficient to sustain the conviction against any of the appellants.
4. The first and second counts of the indictment do not state any offense against the United States since they do not charge Thompson with a violation of the Smith Act.
5. The trial court erred in instructing the jury.
6. The trial court erred in failing to instruct the jury as requested by the appellants.
As we have noted in our summary of the indictment, the charges are based upon three sections of 18 U.S.C.A. as follows:
Because of the appellants' contention that there was insufficient evidence to justify the arrests, the seizures, or the subsequent verdicts of guilty, we are attempting to give in the following two sections somewhat full summaries of the relevant testimony.
William H. Whelan, an agent of the Federal Bureau of Investigation, was in charge of the fifteen agents and the matron who participated in the arrests that took place at a certain house and its environs near the village of Twain Harte, on August 27, 1953, at 1:05 p. m.
The house, referred to in the record as a "cabin", was a two-story structure with a small porch on one side of it. It was on a "secondary" road, with a driveway leading from the road to the cabin itself.
The arresting party arrived in six automobiles, which drove up the roadway to the front of the house. Thompson and Steinberg were standing out in the yard. Whelan announced that he and his party were agents of the F.B.I., and that they were there to arrest them. He called upon the pair to surrender.
Thompson and Steinberg put their hands up. Agent Whelan directed them to go over to two trees in the yard, and ordered some other agents to take charge of them and search them. The two prisoners were handcuffed and were permitted to sit on the ground beside one of the trees.
Whelan testified that at that time he "advised them (Thompson and Steinberg) that they were being arrested because of the warrants that were outstanding for the arrest of both of them in the Southern District of New York". He then directed the other agents to go into the house and he followed them inside. There the three persons were ordered to come outside. The men were searched, handcuffed, and seated. The young woman was searched with the help of the matron, and then was seated on a chair by the porch. Elsewhere the record indicates that Mrs. Kremen was not handcuffed.
The three prisoners who had been brought out of the house were "advised that they were being arrested by virtue of the fact that they were harboring" the two persons for whom the officers "had warrants outstanding". They were all handcuffed and searched.
The three prisoners taken from inside the house were the appellants Ross, Kremen, and Coleman. Steinberg, who was arrested outside the house, is the fourth appellant. Thompson, it will be remembered, was not made a defendant in the instant case.
The five prisoners were fingerprinted and photographed on the spot. Then they were told...
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