United States v. Schneiderman

• Decision Date: 11 December 1951
• Docket Number: No. 21883 and 21940.,21883 and 21940.
• Citation: 102 F. Supp. 87
• Parties: UNITED STATES v. SCHNEIDERMAN et al. UNITED STATES v. SPECTOR et al.
• Court: U.S. District Court — Southern District of California

102 F. Supp. 87

UNITED STATES v. SCHNEIDERMAN et al.

UNITED STATES v. SPECTOR et al.

Nos. 21883 and 21940.

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

December 11, 1951.

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Walter S. Binns, Asst. U. S. Atty., Norman Neukom, Asst. U. S. Atty., and Ray H. Kinnison, Asst. U. S. Atty., all of Los Angeles, Cal., for the United States.

Margolis & McTernan by Ben Margolis, all of Los Angeles, Cal., for all defendants.

Alexander H. Schullman, Los Angeles, Cal., for defendants Philip Marshall Connelly and Dorothy Rosenblum Healey.

Leo A. Branton, Jr., Los Angeles, Cal., for defendant Henry Steinberg and Ben Dobbs.

Leo A. Sullivan, Oakland, Cal., for defendants Albert Jason Lima and Carl Rude Lambert.

A. L. Wirin, Los Angeles, Cal., for defendants Rose Chernin Kusnitz, Al Richmond and Frank E. Spector.

Norman Leonard, San Francisco, Cal., for defendants Loretta Starvus Stack, Ernest Otto Fox and Frank Carlson.

MATHES, District Judge.

It is charged in the indictment in each of these cases that the defendants conspired to commit offenses against the United States. 18 U.S.C. § 371. The offenses which the defendants stand accused of conspiring to commit are violations of the Smith Act. 54 Stat. 670 (1940); 18 U.S.C. (1946 ed.) § 10; 18 U.S.C. (1948 ed.) § 2385.

The material portions of the specific charges as laid in the indictments are in these words: "From and on or about April 1, 1945, and continuously thereafter up to and including the date of the filing of this indictment, in the Southern District of California, and elsewhere, * * * the defendants herein, unlawfully, wilfully, and knowingly did conspire with each other and with William Z. Foster, Eugene Dennis, John B. Williamson, Jacob Stachel, Robert G. Thompson, Benjamin J. Davis, Jr., Henry Winston, John Gates, Irving Potash, Gilbert Green, Carl Winter, and Gus Hall, co-conspirators but not defendants herein, and with divers other persons to the grand jury unknown, to commit offenses against the United States prohibited by Section 2 of the Smith Act * * * by so conspiring (1) unlawfully, wilfully, and knowingly to advocate and teach the duty and necessity of overthrowing the Government of the United States by force and violence, and (2) unlawfully, wilfully, and knowingly to organize and help organize as the Communist Party of the United States of America a society, group, and assembly of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence, in violation of Section 3 of the Smith Act * * *."

It is further charged in the indictments that, inter alia: "It was * * * a part of said conspiracy that said defendants and co-conspirators would write and cause to be written articles and directives in publications of the Communist Party of the United States of America including, but not limited to, `Political Affairs,' `Daily People's World,' `Daily Worker,' and `The Worker,' teaching and advocating the necessity of overthrowing and destroying the Government of the United States by force and violence;

"It was further a part of said conspiracy that said defendants and co-conspirators would conduct and cause to be conducted schools and classes * * * in which would be taught and advocated the duty and necessity of overthrowing and destroying the Government of the United States by force and violence as speedily as circumstances permit * * *."

It is further charged that: "In pursuance of said conspiracy and to effect the objects thereof, the defendants and co-conspirators did commit, among others, * * * fifteen overt acts * * *."

The defendants have presented a joint motion to dismiss the two indictments upon several grounds, only one of which requires discussion here. That ground is:

"The indictments do not state facts sufficient to constitute offenses against the United States."

As a corollary to the ground just stated, the defendants argue that: "The indictments * * * by reason of their failure to set forth all necessary elements of the crime they purport to charge, deprive these defendants of their right, in a criminal prosecution, to be informed of the nature and cause of the accusation, in violation of the Sixth Amendment."

The defendants at bar stand accused of what appears to be in substance the same conspiracy of which Dennis and others were convicted in the Southern District of New York. See Dennis v. United States, 1951, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; id. 2 Cir., 1950, 183 F.2d 201; id. sub nom., United States v. Foster, D.C., S.D.N.Y. 1949, 9 F.R.D. 367, 374-375. Indeed the defendants in the Dennis case are charged as "co-conspirators but not defendants" in the indictments here. A comparison of the allegations of the indictments at bar with those of the indictment in the Dennis case has been submitted by counsel for the defendants and is included as an appendix hereto.

The gist of the conspiracy provisions of the indictments at bar is that the defendants and others "unlawfully, wilfully and knowingly did conspire * * * to commit offenses against the United States prohibited by Section 2 of the Smith Act * * by so conspiring (1) unlawfully, wilfully and knowingly to advocate and teach * * and (2) unlawfully, wilfully and knowingly to organize and help organize * * * in violation of Section 3 of the Smith Act * * *."

As the Smith Act originally stood, § 3 prohibited a conspiracy to do "any of the acts" forbidden by the provisions of § 2, 54 Stat. 671 (1940). The Congress thus enacted in § 3 the old common law crime of conspiracy, which made the act of conspiring, without more, a public offense. Nash v. United States, 1913, 229 U.S. 373, 378, 33 S.Ct. 780, 57 L.Ed. 1232. Hence the doing of an overt act was not an essential element of the crime of conspiracy defined in § 3. See Dennis v. United States, supra, 341 U.S. at pages 574, 590, 71 S.Ct. 857.

Sections 2 and 3 of the Smith Act later became §§ 10 and 11 of Title 18 of the United States Code, 54 Stat. 670 (1940). And when Title 18 of the United States Code was revised in 1948, the conspiracy section 3, 18 U.S.C. (1940 ed.) § 11, was repealed, 62 Stat. 867 (1948), leaving a conspiracy to commit the acts prohibited by § 2 of the Smith Act covered by the general conspiracy statute, 18 U.S.C. (1948 ed.) § 371, which does require as an essential element of the offense that an overt act be done "to effect the object of the conspiracy".

The defendants first direct attention to the last-above-quoted language of the indictments, namely, the allegations that they conspired "to commit offenses * * * prohibited by Section 2 of the Smith Act * * * by so conspiring * * * to advocate and teach * * *," as prohibited by § 2(a)(1), "and * * * to organize and help organize * * *," as prohibited by § 2(a)(3), "in violation of Section 3 of the Smith Act * * *." The substance of this, the defendants contend, is but to charge them with a conspiracy to commit a conspiracy. Cf. United States v. Armstrong, D.C., Ind.1920, 265 F.2d 683, 695.

The Government replies that the citation in the indictment of § 3 of the Smith Act is to be considered an error which, in keeping with Rule 7(c) of the Federal Rules of Criminal Procedure, 18 U.S.C., "shall not be ground for dismissal of the indictment", since the error has not mislead the defendants to their prejudice. And the Government further urges that the language in question should be read as if the phrase "by so conspiring" consists of nothing more than the preposition "by," and as if the draftsman had employed the gerund or verbal noun rather than the infinitive of the verbs.

So read, the indictment charges that "the defendants * * * unlawfully, wilfully, and knowingly did conspire * * * to commit offenses * * * prohibited by Section 2 of the Smith Act * * * by * * * (1) unlawfully, wilfully, and knowingly" advocating and teaching "the duty and necessity of overthrowing the Government of the United States by force and violence, and (2) by unlawfully, wilfully, and knowingly" organizing and helping to organize "as the Communist Party * * * persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence * * *."

But the defendants reply that even so reading the indictments, the essential elements of an offense are not charged. Specifically, the defendants assert that the requisite intent is not alleged.

The gravamen of the charge as laid in the indictments is that the defendants "unlawfully, wilfully, and knowingly did conspire * * * to commit offenses against the United States * * * by * * * unlawfully, wilfully and knowingly" doing acts prohibited by § 2(a) (1) and § 2(a) (3) of the Smith Act.

Since the adverb "unlawfully" is but a conclusion of the pleader that what was done was in violation of law cf. Keck v. United States, 1899, 172 U.S. 434, 437, 19 S.Ct. 254, 43 L.Ed. 505, the charge is of a conspiracy to commit offenses by doing precisely what is forbidden by the language of § 2(a) (1) and § 2(a) (3) of the Smith Act. See 54 Stat. 670, 671 (1940); 18 U.S.C. (1940 ed.) § 10; id. (1948 ed.) § 2385.

Rule 7(c) of the Federal Rules of Criminal Procedure provides in part that: "The indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged."

"The general, and with few exceptions * * * the universal, rule, on this subject," said the Court in United States v. Hess, 1888, 124 U.S. 483, 486, 8 S.Ct. 571, 573, 31 L.Ed. 516, "is that all the material facts and circumstances embraced in the definition of the offense must be stated, or the indictment will be defective. No essential element of the crime can be omitted without destroying the whole pleading. The omission cannot be supplied by intendment or implication, and the charge must be made directly, and not inferentially, or by way of recital."

To repeat the classic...