United States v. Foster

• Decision Date: 09 September 1948
• Citation: 79 F. Supp. 422
• Parties: UNITED STATES v. FOSTER et al.
• Court: U.S. District Court — Southern District of New York

79 F. Supp. 422

UNITED STATES v. FOSTER et al.

District Court, S. D. New York.

September 9, 1948.

John F. X. McGohey, U. S. Atty., of New York City, for plaintiff.

Unger, Freedman & Fleischer, of New York City, for defendants.

RIFKIND, District Judge.

Defendants have moved for an order permitting them to travel beyond the jurisdiction of this Court and throughout the continental United States. These defendants have been admitted to bail after a plea of not guilty to an indictment charging them with conspiring "to organize as the Communist Party of the United States of America a society, club, and assembly of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence, and knowingly and wilfully to advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence."

It is to be noted that the defendants have not been accused of the commission of the substantive crime of teaching and advocating the overthrow of the Government of the United States by force and violence; nor have they been accused of conspiring to overthrow the Government of the United States by force and violence.

The reasons for the defendants' application are stated in an affidavit of their attorney as follows:

"It is essential in the preparation of their defense that they spend considerable time outside New York. The specific reason therefor is that they must raise funds for their defense, and for that purpose meetings have been arranged of members of the Communist Party and of the general public and will continue to be arranged throughout the country. The nature of the case, involving an entire political party, requires that they discuss their defense with prospective witnesses, who live in various parts of the country; likewise, the importance of the case impels the defendants to consult with learned and distinguished lawyers throughout the United States toward the end of retaining such counsel for their trial."

The United States Attorney opposes the application. It needs to be emphasized that the opposition is not founded on an allegation that, if the defendants were permitted to leave the Southern District of New York, they would not be amenable to the court's order or available for trial. Nor does the Government challenge the claim made in behalf of the defendants that in order to prepare adequately for trial it is necessary for them to travel into various areas of the United States. The opposition is founded upon the fact that on a prior unsuccessful...