United States v. Powell

• Decision Date: 01 November 1957
• Docket Number: No. 35065.,35065.
• Citation: 156 F. Supp. 526
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES of America, Plaintiff, v. John William POWELL et al., Defendants.

156 F. Supp. 526

UNITED STATES of America, Plaintiff, v. John William POWELL et al., Defendants.

No. 35065.

United States District Court, N. D. California, S. D.

November 1, 1957.

Lloyd H. Burke, U. S. Atty., Robert H. Schnacke, Asst. U. S. Atty., San Francisco, Cal., Charles R. Renda, Special Atty., Dept. of Justice, Washington, D. C., for plaintiff.

A. L. Wirin, Los Angeles, Cal., Doris Brin Walker, San Francisco, Cal., for defendants John William Powell and another.

Stanley Faulkner, New York City, for defendant Julian Schuman.

GOODMAN, District Judge.

The three defendants are charged in a thirteen-count indictment with engaging in seditious activities intended to adversely affect the armed forces of the United States while the United States was at war in Korea from July 7, 1950 until July 27, 1953.

During the entire period of the Korean War and for several years prior thereto, the defendant John Powell was the owner and editor and the defendants Sylvia Powell and Julian Schuman were staff members of a magazine published in Shanghai, China and known as the Chinese Monthly Review. Count one of the indictment charges the three defendants with conspiring to circulate in the United States through the media of the Chinese Monthly Review false statements and reports intended to interfere with the success of the United States forces in Korea, to cause insubordination and disloyalty among the United States troops, and to obstruct recruitment. Each of counts two through eleven charges the defendant John Powell with circulating in the United States by publication in Chinese Monthly Review false statements intended to interfere with the success of the United States armed forces. Counts twelve and thirteen charge the defendant John Powell with circulating in the United States copies of the Chinese Monthly Review containing statements derogatory to the United States for the purpose of causing insubordination and disloyalty among the members of the military forces of the United States and obstructing recruitment. 18 U.S.C. § 2388.

The false and derogatory statements which the indictment charges that the defendants circulated fall into four principal categories: (1) statements that the United States was the aggressor in the Korean war; (2) statements that the United States was waging bacteriological warfare in Korea and China; (3) statements that the United States was stalling and disrupting peace talks and was deliberately breaching the armistice agreement; and (4) statements relative to the number of United States casualties in Korea.

The false statements charged in the indictment thus center around events in China and Korea. Ever since the indictment was returned on April 25, 1956, the defendants have faced a unique problem in obtaining for use at their trial evidence in their defense which they claim is available to them in China and North Korea.

The United States has never recognized the government of the People's Republic of China which since October 1, 1949 has controlled the Chinese mainland. Since May 1, 1952, the United States Department of State has not issued passports valid for travel to China. The United States does not recognize the People's Government of Korea which controls North Korea. Since October, 1955, the United States Department of State has not issued passports valid for travel to North Korea.

Counsel for defendants have repeatedly sought the assistance of the Court to facilitate counsel's travel to China to gather evidence for the defense. On October 5, 1956, at their request the Court issued an order for the taking of the depositions in China of certain defense witnesses provided a proper showing was made by November 19, 1956 of the particular places and times at which these witnesses would present themselves. On November 16, defendants' counsel advised the Court by affidavit that six defense witnesses would be available to give their depositions at Peking, China during the first half of March, 1957. The government objected to the taking of the depositions in Peking on the ground that government counsel would not have official access to the Chinese mainland inasmuch as the United States has not recognized the People's Republic of China. The Court then ordered that the depositions of these witnesses be taken in the British Crown Colony of Hong Kong on or before January 15, 1957.

On December 27, 1956 defense counsel moved for an extension of the time fixed for the commencement of the depositions in Hong Kong. They advised the Court that the witnesses had declined to travel to Hong Kong, and that it would be necessary for Mr. A. L. Wirin, one of defendants' counsel, to go to China to attempt to persuade the witnesses to give their depositions in Hong Kong. Mr. Wirin stated that although the United States Department of State had refused to validate his passport for travel to China, he had been informed that the People's Republic of China would grant him a visa without requiring him to present a United States passport. The Court granted an extension of time to February 15, 1957.

On January 24, 1957, defense counsel by affidavit advised the Court that the People's Republic of China had refused to grant Mr. Wirin a visa to enter China unless his United States passport was validated for travel there. They moved the Court to direct the State Department to validate Mr. Wirin's passport for travel to China. At the hearing of the motion on February 1, 1957, they also moved that alternatively the Court dismiss the indictment.

On March, 20, 1957 the Court denied the motion for an order directing the Department of State to validate Mr. Wirin's passport for travel to China on the ground that the Court lacks jurisdiction in this criminal proceeding to make such an order. The Court was of the opinion that defendants had not yet made a sufficient showing as to the availability of witnesses in China and North Korea and the nature of their expected testimony to enable it to rule on the alternative motion to dismiss the indictment. Consequently the Court ordered the motion continued for 90 days to permit defendants to secure from the prospective witnesses resident in China a statement of their availability to give their depositions and to permit defendants to prepare a reasonably detailed summary of the expected testimony of each witness.¹ Thereafter the motion was further continued to September 2, 1957.

On August 6, 1957, defense counsel moved the Court for an order requesting the appropriate judicial authorities of the People's Republic of China to furnish judicial assistance in taking statements of prospective witnesses resident in China as to their availability to give their depositions at some particular time and place. In an affidavit supporting this motion, defense counsel advised the Court that their contacts in China had informed them that without the request for judical assistance on the part of this Court it would be impossible to obtain the statements of availability contemplated by the order of March 20, 1957. The Government agreed that the relief sought by this motion was appropriate, and on September 3, 1957, the Court issued a formal request for judicial assistance to the Supreme Court of the People's Republic of China. No reply to this request has as yet been forthcoming.²

On October 4, 1957, defendants tendered the present plea for dismissal of the indictment by filing a new motion and supporting affidavits. Dismissal is asked on the ground that the Government's refusal to validate Mr. Wirin's passport for travel to China and North Korea deprives defendants of an adequate opportunity to prepare their defense by examining witnesses and documents available there and arranging for the presentation of relevant documents and testimony by depositions or at the trial. The motion has been argued and briefed by counsel for defendants and the government. The affidavits that have been filed since last March, when the Court continued the previous motion for dismissal of the indictment, together with the earlier affidavits, in the opinion of the Court, now provide a sufficient record for disposition of the motion.

The record shows that despite the intensive efforts made by counsel for defendants to obtain access to evidence assertedly available in China and North Korea, no substantial progress has been possible. The necessity for defense counsel to travel to China and North Korea in preparation for trial has become manifest.

The indictment puts in issue the truth of the statements allegedly circulated by defendants through the Chinese Monthly Review as well as the intent with which the statements were made. Evidence tending to show that the statements were true or that they were made in good faith in the belief they were true and without criminal intent is obviously essential to the defense. Since defendants resided in China during the period covered by the indictment and for a number of years previously, and since the events which they are charged with falsely reporting occurred in China and Korea, it is evident that China and Korea are the most likely sources of any such evidence.

In their affidavits, defense counsel have now named more than one hundred prospective witnesses resident in China and North Korea. The general nature of the expected testimony of each has been set forth. One group of these witnesses can allegedly give testimony in refutation of the charge that defendants falsely characterized the United States as an aggressor in China and Korea. Some of this group are stated to have observed incidents of direct aggression by United States forces in China. Others, who were formerly officials in the Nationalist Government of China and the Rhee government of South Korea, are claimed to have knowledge of policies and conduct of the United States in China and Korea which can reasonably be termed aggressive. Another group of witnesses assertedly can testify to incidents of the...