United States v. Frankfeld
| Decision Date | 24 April 1953 |
| Docket Number | Crim. A. No. 22322. |
| Parties | UNITED STATES v. FRANKFELD et al. |
| Court | U.S. District Court — District of Maryland |
Bernard J. Flynn, U. S. Atty., Baltimore, Md., for plaintiff.
Harold C. Buchman, Baltimore, Md., for defendants.
The defendants in this case have filed a motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which provides that if the motion is based on newly discovered evidence it may be filed within two years after the final judgment in the case. Sentence and judgment in the above case was entered on April 4, 1952. There was no motion filed for a new trial but appeal was entered to the United States Court of Appeals for the Fourth Circuit where the judgment was affirmed July 31, 1952, 198 F.2d 679, and subsequently the Supreme Court of the United States denied certiorari, 344 U.S. 922, 73 S.Ct. 389. The defendants were indicted and convicted for conspiracy to violate the provisions of the Smith Act of Congress of June 28, 1940, 18 U.S.C.A. § 2385.
The motion for a new trial on the ground of newly discovered evidence now filed on March 30, 1953 is based on newly discovered evidence allegedly tending to impeach the credibility of two of the ten witnesses for the government at the trial of the case. The two witnesses referred to are Mary Stalcup Markward and Ralph W. Long. Mrs. Markward was for nine years a Communist for the Federal Bureau of Investigation. In 1943 at the request of the F. B. I. she joined the Communist Party in the District of Columbia and thereafter until shortly before giving her testimony in this case during March 1952, continued to be an active member of the Party and for several years held important official positions in the Party in Maryland and the District of Columbia which brought her into active and frequent contact at Party meetings and otherwise with all six defendants in the case.
There were two main issues of fact submitted to the jury under instructions of the court at the trial of the case. The first question was whether the Communist Party in the United States constituted a conspiracy to overthrow the government of the United States by force and violence when the time was opportune. The second question of fact, with respect to each of the defendants separately, was whether their membership in and official activities for the Communist Party showed that they were acting to carry out the program and objectives of the Party with knowledge of such aims and purposes. On the first issue of fact Mrs. Markward's testimony was merely cumulative to that of numerous other witnesses for the government. Her testimony also related particularly to the activities of the several defendants based on her personal knowledge according to her testimony.
After Mrs. Markward had testified in this case she was also called as a witness by the government in a similar prosecution in the Southern District of New York. At the request or demand of the defendants there a stipulation of counsel was filed with regard to compensation paid by the government from time to time to various witnesses in the case, which included a statement that from time to time during Mrs. Markward's nine years of service she had been paid an aggregate of $24,026.46, of which amount $147 was specified as expenses. It is this fact which constitutes the alleged newly discovered evidence in this case.
The motion for a new trial makes a charge with regard to Mrs. Markward's testimony in this case that her testimony "fostered the impression" that she had spied for the F. B. I. for patriotic reasons only and without regard to monetary motives and that her testimony in this respect was in effect perjury and that if the jury had known the amount paid to her they would probably have disbelieved her testimony as to the activities of the several defendants. After re-reading the whole of her evidence in this case I find the charge now made to be without justification.
It affirmatively appears from her testimony that in 1943 she was requested by a member of the F. B. I. to become a Communist and keep them informed of the activities of the Communist Party and its officers and executives in this District, and that she would be paid for her services and expenses; that she was so paid from time to time; that she did not recall how much she had been paid; that the highest sum received by her at any one time from the F. B. I. was about $180; that she made reports to the F. B. I. from time to time but received no compensation for them as such; and that she was being paid by the government $25 a day for the time required for her testimony in this case.
It further appeared from her evidence that when her services first began she was engaged in conducting a beauty shop and that her husband was a bricklayer; that a year or so thereafter her husband went into the Military Service and she discontinued her beauty shop. While still engaged in the operation of the shop she employed her time in the evenings and on week-ends in Communist meetings and activities, and after she gave up the beauty shop she gave her whole time and attention to Communist Party meetings and activities for several years with the exception of an interval of some months on one or more occasions when she was ill; that when her husband returned from Military Service, at the suggestion of other members of the Communist Party, he also became a Communist. For many years she resided in Virginia some miles from Washington and, of course, had to travel daily to Washington in connection with her Communist membership and activities and attendance at meetings in Washington and elsewhere. For a part of the time she was secretary of the District Party.
It does appear in her evidence that the jury was told that she was paid for her services, that her services extended over a period of nine years, and that for nearly all of that period her only activity was in connection with the Communist Party matters and that she apparently had no other source of income for living, traveling and other expenses than what she was receiving from the government and for a while a salary of $20 a week for her services as secretary of the District Committee of the Communist Party. The total amount of compensation that she received from the government for this period of nine years of service does not seem...
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