United States v. Frankfeld

• Decision Date: 25 January 1952
• Docket Number: Crim. A. No. 22209.
• Citation: 101 F. Supp. 449
• Parties: UNITED STATES v. FRANKFELD et al.
• Court: U.S. District Court — District of Maryland

101 F. Supp. 449

UNITED STATES v. FRANKFELD et al.

Crim. A. No. 22209.

United States District Court D. Maryland, Criminal Division.

November 30, 1951.

Motion to Reconsider Overruled January 25, 1952.

Bernard J. Flynn, U. S. Atty., Baltimore, Md., for plaintiff.

Harold Buchman, Baltimore, Md., for defendants Meyers, Braverman, Wood and Regina Frankfeld.

Joseph Forer, Washington, D. C., for defendants Wood and Regina Frankfeld.

R. Palmer Ingram, Baltimore. Md., for defendant Dorothy Blumberg.

Philip Frankfeld, pro se.

Motion to Reconsider Overruled January 25, 1952. See 102 F.Supp. 422.

CHESNUT, District Judge.

The six defendants in the above case are jointly indicted for conspiracy to violate the Smith Act, 18 U.S.C.A. §§ 11 (1946 ed.) and 371 (1948 ed.) and 2385. Five of the defendants are represented by counsel and the sixth, Philip Frankfeld, has heretofore declined the assistance of counsel offered to be appointed by the court if desired. All the defendants have heretofore filed a number of motions preliminary to the trial of the case. I will discuss these motions severally.

Motion to Dismiss the Indictment

This is based on four grounds: (1) that the indictment is only vague and general and legally insufficient in particulars stated; (2) that the Smith Act is unconstitutional; (3) that the Grand Jury which returned the indictment was not selected and drawn in accordance with law and the requirements of the United States Constitution, and (4) that the indictment was not found within three years next after the alleged offense was committed.

I find no legal merit in any of these contentions.

1. The indictment was for conspiracy. On examination I find that (a) it alleges a conspiracy by and between six several defendants; (b) and alleges conspiracy with others not defendants, eleven of whom are specifically named in the indictment; (c) the beginning and duration of the conspiracy and the place it occurred are named; (d) the objects of the conspiracy are stated in some detail and (e) eleven overt acts containing the nature and dates and in some cases the places of occurrence are specified. This is in accordance with the long prevailing customary practice with respect to indictments for conspiracy. I find it sufficient in this case.

2. The Smith Act was held constitutional by a large majority of the Supreme Court of the United States in the case of Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. The Act had previously been held constitutional by the District Court for the Southern District of New York, United States v. Foster, 80 F.Supp. 479, and by the unanimous decision of the Court of Appeals for the Second Circuit, 183 F.2d 201. A motion for reargument of the case has been overruled by the Supreme Court, 72 S.Ct. 20. The decision of the Supreme Court is, of course, imperative authority for the decision here.

3. The defendants' objection to the Grand Jury is based only on the contention that there were only 2 of its 23 members who could properly be classed as "manual workers", and that this small number resulted from a constitutionally faulty principle of selection of jurors by the Jury Commissioners. More broadly stated, the defendants' contention is that the method of selection of juries in this court by the Jury Commissioners has resulted in the capture of the jury system by the higher economic strata of the population and a virtual exclusion from the jury system of the less well-to-do class described as "manual workers" or "daily wage earners". The evidence does not support this contention.

The only evidence offered by the defendants on this point is based on a statistical analysis of the stated occupations of persons constituting Grand Juries in this court for the respective four terms annually in the past five years. By this analysis counsel for the defendants compute that on the average only about 3% of the Grand Jurors have given their occupations as manual workers, and reference is made to a census report of 1950 which, after certain exclusions as computed by counsel, tends to show that about 50% of the employed population in the Baltimore City metropolitan area comprises so-called manual workers. The accuracy of the percentage calculations made by counsel is at least open to question, but even if we accept it as approximately correct it fails to establish that the method of selection has been faulty or discriminatory against any particular class of citizens qualified to be jurors. On the contrary the direct evidence given by the clerks of the court and the present and former Jury Commissioners convincingly establishes that there has been no discrimination either intentional or unconscious in their method of selection of juries.

The personnel of the particular Grand Jury as classified by counsel is that its membership consisted of 3 of professional occupations; 4 of sales-clerical; 2 manual workers; 8 retired persons and 3 housewives. There is no evidence as to the personal economic status of any of these jurors; nor indeed of any member of any of the prior Grand Jury Panels. In percentage it will be noted that of the 23, 12 only were gainfully employed and that the 2 manual workers constituted over 15% of that number and about 9% of the total number of 23 members. This is certainly more than a mere "token" percentage as stated by counsel. And with respect to the percentage analysis of manual workers on prior Grand Juries it is to be noted that the computation is made only from jurors actually serving and not the total number of more than 300 names contained in the jury box from which the selected names were drawn by lot. Nor is there any factual evidence in the particular case with regard to the number of names of respective juries drawn from the box who were unavailable for or were excused from actual service. It is a matter of common judicial experience in the organization of juries for any particular term of court that very many persons for individually considered good reasons are excused from service. And there is direct affirmative evidence in this case from the two clerks of the court who have testified, that some so-called manual workers have been excused from jury service after selection therefor by reason of individual hardship which would result from loss of their daily wage substantially greater in amount than their per diem for jury service. This disproportion of compensation was even more marked until two years ago when Congress increased the per diem compensation of jurors to $7.00 per day. Even this increased amount is much less than the present rate of daily wages earned by many manual workers, such as carpenters, plasterers, plumbers, electricians or mechanics.

The names of the 23 grand jurors who found the indictment in this case were drawn by lot from a box containing 383 names. Counsel for the defendants obtained from the clerk of the court a list of the 383 names with stated occupations, and have classified them into 26 manual workers; 28 professional, 75 sales-clerical workers and the balance, 155 so-called "executives". Percentage-wise the number of manual workers in this group was 9%.

The term "executives" as used by counsel is not clear. Apparently all jurors whose stated employment was described as an officer of a corporation of any nature, whether large or small, and without knowledge of actual duties, whether discretionary, clerical or manual, are included in the class of so-called "executives". It is only speculative as to what economic class they may belong. Often persons called officers of a small corporation may be hardly more than employees, or may actually perform manual or clerical services for the larger part of their time. And the precise line of demarcation between clerical, professional and executive service cannot be definitely concluded merely from the brief description of occupation stated on the jury lists.

The evidence given by the several Jury Commissioners clearly explains their method of selecting names to be placed in the jury box to be drawn by lot from time to time for juries for the respective four terms of court annually. The statutory requirements for jury selection and service are to be found in 28 U.S.C.A. § 1861 et seq. No particular method of selection is prescribed by the statutes; but by judicial decisions it has been established that in selecting names of citizens qualified for jury service, the constitutional principles require that there must be no discrimination against or exclusion from service of jurors otherwise qualified to serve, by reason of race or color or economic status. There is no contention in this case that there has ever been any discrimination by the Jury Commissioners against Negroes on juries, and indeed it is a matter of judicial observation and experience that practically every jury panel, whether Grand or Petit, in this court for many years past has contained Negroes among the membership. Nor is there any evidence or any contention in this case that the Jury Commissioners have either at the present time or in the past failed to observe the procedural statutory requirements. The Jury Commissioners in the federal courts are not required either by statute or by judicial decisions to select names of prospective jurors from any particular list such as voters, registration or taxpayers lists, as may be required by the laws of some States. On the contrary they are expected to and are free to exercise their discretion and judgment as to the best method which will procure competent, intelligent and generally informed citizens of good character without discrimination against or exclusion of any one class. The historical development of jury selection is well and interestingly told by Circuit Judge Learned Hand in the New York case of Dennis v. United States, 2 Cir., 183 F.2d 201, 216-224.

The evidence given by the Jury Commissioners in this case, and particularly by Mr. Charles W....