United States v. Bell

• Decision Date: 13 February 1943
• Docket Number: No. 15759.,15759.
• Citation: 48 F. Supp. 986
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. BELL et al.

48 F. Supp. 986

UNITED STATES v. BELL et al.

No. 15759.

District Court, S. D. California, Central Division.

February 13, 1943.

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Leo V. Silverstein, U. S. Atty., and Norman Neukom, Asst. U. S. Atty., both of Los Angeles, Cal., for plaintiff.

Lorrin Andrews, of Los Angeles, Cal., for defendants.

A. L. Wirin, of Los Angeles, Cal., for American Civil Liberties Union, amicus curiae.

YANKWICH, District Judge (after stating the facts as above).

Offenses in which persons who profess heterodox doctrines are involved present problems which either do not exist in ordinary prosecutions or, if they do exist, are not pressed for solution. This for the reason that once we enter the realm of opinion, our American tradition of liberalism makes many persons and groups who do not condone the acts of the particular defendants, or do not share their ideas or the norms of their philosophy, interest themselves in their fate. They do this in pursuit of our ideal of free expression and to guard against the danger that persons might be prosecuted or condemned, contrary to the spirit of our constitutional liberty. It is right that it should be so. For, ultimately, the test of our belief in freedom of expression is "freedom for the thought that we hate".¹ At the same time, in considering the motions to suppress and return evidence, we should not overlook the fact that the offense charged here, while connected with the realm of ideas, is, in reality, conspiracy. 50 U.S.C.A. § 34.

Conspiracy, ordinarily, consists in uniting to violate any of the hundreds of statutory provisions contained in the Criminal Code and the regulatory statutes of the United States. Or it may consist in conspiring to defraud the United States of money or property, or merely to interfere with the proper functioning of an agency of the United States.²

The indictment here does not charge the substantive offense, the violation of the Espionage Act of 1917. 50 U.S.C.A. § 33. Nor does it charge the conspiracy denounced by Section 37 of the Criminal Code. 18 U.S.C.A. § 88. It charges a specially prohibited form of conspiracy, — conspiracy to violate the Espionage Act of 1917, 50 U.S.C.A. § 34, and avers:

"1. It was a part of the aforesaid conspiracy that the said defendants and coconspirators and divers other persons, to the Grand Jurors unknown, subsequent to December 8, 1941, did print, publish, distribute, circulate and cause to be circulated throughout California and the United States, bulletins, weekly messages, telegrams, brochures, pamphlets, books, charts, motion picture film, slides, photographs, drawings, cartoons, under the following names, among others: `Mankind United', `Would You be Informed?', `The ABC Bulletin', `The Truth About England', `Weekly Message No. 22', `We Are Not Cattle', a large size chart entitled `Illustrated Lecture No. 1.'.

"2. It was further a part of the aforesaid conspiracy that the said defendants and co-conspirators and divers other persons to the grand jurors unknown, subsequent to December 8, 1941, would organize and cause to be organized, utilize, support, use, control and otherwise aid, at divers places within the United States of America, and particularly within the State of California, committees, groups, bureaus, teams, and units, organized under the following names, among others:

Mankind United Group Units or Organizations George G. Ashwell Bureau A. P. Mason Bureau Ruth Ann Bureau The Beacon Bureau A. P. Burns Bureau Ray of Light Bureau Progressive Bureau Hall-Gardner Bureau Three Maples Bureau The Auburn Bureau The Faith Grace Bureau The Kathleen Bureau The Guiding Light Bureau The A. P. Roberts Bureau The Olive Branch Bureau International Institute of Universal Research & Administration; also known as International Registration Bureau International Legion of Vigilantes Timely Books Bureau Timely Books Library Bulletin Printing Company.

"3. It was further a part of the aforesaid conspiracy that the said defendants and co-conspirators and divers other persons to the grand jurors unknown, would under the name of the movement commonly referred to as `Mankind United', conduct lectures, meetings, and instruction groups from time to time subsequent to December 8, 1941, down to and including the date of the filing of the herein indictment at various cities and towns in the United States, particularly in the state of California, at which meetings and instruction groups, followers, associates and many persons, the names of which persons are to the grand jurors unknown, would attend and at which meetings, lectures, and instruction groups, the various defendants and other persons not here indicted were, among other designations, frequently referred to by code or symbols, or by numerical designation, and that in particular, as to the defendants herein indicted, they were, among other designations, frequently known as follows:

"Arthur L. Bell, the Speaker, the Divisional Superintendent, M. R. Speaker, Department A. Department B, the Voice, the Voice of a Right Idea.

"George Gouverneur Ashwell, No. 5, Ashwell Bureau Manager.

"Homer G. Wilcox, No. 20, Beacon Bureau Manager, Chairman, County Supervisor.

"Bay Burns Sharpe, No. 22, A. P. Burns Bureau Mgr.

"Eugene Wadsworth Brown, No. 11, Ruth Ann Bureau Mgr.

"A. Ray Elsea, No. 23, Ray of Light Bureau Manager.

"J. F. Burkey, No. 4, Auburn Bureau Manager.

"Max Theodore Miller, No. 12, A. P. Mason Bureau Mgr.

"Harold Von Norris, No. 15, Kathleen Bureau Manager.

"William Duerst, Enrollee, Beacon Bureau.

"Maude Askew, Lieutenant Beacon Bureau, and Area Bureau Manager.

"Pauline Kelso, Lieutenant Beacon Bureau, Area Bureau Manager.

"Lawrence Cook, Captain Beacon Bureau.

"Ed-Gilson, Lieutenant Beacon Bureau, Area Bureau Manager.

"Shanna Jakeman, Captain Ruth Ann Bureau, District Bureau Manager.

"Jacob Gloeckler, Enrollee, A. F. Mason Bureau * * *"

The motions seek to suppress and return evidence secured by the members of the Federal Bureau of Investigation, incidental to the arrests of the named defendants. No search warrants were obtained, except in the case of Burkey, but it authorized search at a wrong address. The officers had with them a warrant of arrest for one of the defendants only, — Elsea. Therefore, the first question to be considered is whether the arrests were legal.

Section 300a of Title 5 U.S.C.A., provides, among other things that The members of the Federal Bureau of Investigation of the Department of Justice are empowered to serve warrants and subpœnas issued under the authority of the United States; to make seizures under warrant for violation of the laws of the United States; to make arrests without warrant for felonies which have been committed and which are cognizable under the laws of the United States, in cases where the person making the arrest has reasonable grounds to believe that the person so arrested is guilty of such felony and where there is a likelihood of the person escaping before a warrant can be obtained for his arrest, but the person arrested shall be immediately taken before a committing officer. * * *"

It is argued that, to warrant an arrest under this enactment, there must be, first, the commission of a felony, and there must be engendered, in addition, in the mind of the officer, a reasonable ground for believing that the particular person is guilty of the offense.

This section is akin to Sections 836 and 837 of the Penal Code of California. Subdivision 3 of these sections permit a peace officer or a private person to make an arrest "when a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it."

"The reasonable ground or suspicion, which justifies an arrest without a warrant, has been declared to be a state of facts which would lead a man of ordinary care and prudence to believe, or entertain an honest and strong suspicion, that the person is guilty of an offense. Courts seem very solicitous about the well-intentioned acts of police officers. In this, they follow the statement of Lord Mansfield (made in 1779) that, in trying the legality of acts of officers,

"`They ought not to suffer from a slip of form, if their intention appears by evidence to have been upright * * *. The principal inquiry to be made by a court of justice is how the heart stood? And if there appears to be nothing wrong there, great latitude will be allowed for misapprehension or mistakes"³

Courts thus make reasonableness not a matter of abstract theory, but a pragmatic question, to be determined, in each case, in the light of its own circumstances.⁴

This is also the view of the Supreme Court, as expressed in Go-Bart Importing Company v. United States, 1932, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374: "There is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances."

In the only two cases which have arisen under § 300a, since its enactment, two circuit courts of appeal have applied to it this general doctrine. Specifically, they have ruled that it does not impose on members of the Federal Bureau of Investigation any greater burden than that imposed, generally, by state law, on peace officers or arresting officers, and that, in determining whether the acts of the officer were in the performance of his functions, the test is the existence of reasonable grounds for belief that a particular person has been guilty of a violation of law.

In Barrett v. United States, 7 Cir., 1936, 82 F.2d 528, 534, in deciding that an agent of the Federal Bureau of Investigation was killed while performing his duties, the Court said:

"Lastly, it is contended that Klein at the time of his killing, was not engaged in the performance of his official duties, and was not killed on account of the performance of his official duties within the...