United States v. Schneiderman, 21888
Citation | 102 F. Supp. 52 |
Decision Date | 28 November 1951 |
Docket Number | 21940.,No. 21888,21888 |
Parties | UNITED STATES v. SCHNEIDERMAN et al. UNITED STATES v. SPECTOR et al. |
Court | U.S. District Court — Southern District of California |
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Ernest A. Tolin, U. S. Atty., Walter S. Binns, Asst. U. S. Atty., Norman Neukom, Asst. U. S. Atty., Ray H. Kinnison, Asst. U. S. Atty., all of Los Angeles, Cal., for the United States.
Margolis & McTernan, by Ben Margolis, Los Angeles, Cal., for all defendants.
Daniel G. Marshall, Los Angeles, Cal., for defendant Philip Marshall Connelly (for bail purposes only).
Alexander H. Schullman, Los Angeles, Cal., for defendant Philip Marshall Connelly and Dorothy Rosenblum Healey.
Leo A. Branton, Jr., Los Angeles, Cal., for defendant Henry Steinberg, 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.
The defendants in these two cases are under indictment charged with conspiracy "to commit offenses against the United States" prohibited by Section 2 of the Smith Act, 54 Stat. 671 (1940), 18 U.S.C. (1946 ed.) § 10, and 18 U.S.C. (1948 ed.) § 2385, "by so conspiring * * * to advocate and teach the duty and necessity of overthrowing the Government of the United States by force and violence, and * * * to organize and help organize as the Communist Party of the United States of America a * * * group * * * of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence * * *."
Bail as to each of the defendants in the two cases has been fixed at $50,000, and all fifteen are presently in the custody of the marshal in default of bail. The twelve defendants in No. 21883 are now before the court on motions to reduce bail. See Stack, v. Boyle, 72 S.Ct. 1, id. 9 Cir., 192 F.2d 56; Connelly v. District Court, 9 Cir., 1951, 191 F.2d 692. Although the three defendants in No. 21940 — Spector, Carlson and Dobbs — are likewise detailed in default of $50,000 bail and are represented by three attorneys who individually appear for one or more of the defendants in No. 21883, no move seeking reduction of their bail has been made. Both defendants Carlson and Spector are aliens. See Carlson v. Landon, 9 Cir., 1950, 186 F.2d 183; id. 9 Cir. 1951, 187 F.2d 991; United States v. Spector, D. C., S.D.Cal. 1951, 99 F.Supp. 778.
As Mr. Chief Justice Vinson recently declared for the majority of the court in Stack v. Boyle, supra 72 S.Ct. 3:
Rule 46(c) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., directs that: "If the defendant is admitted to bail, the amount thereof shall be such as in the judgment of the * * * judge * * * will insure the presence of the defendant, having regard to 1 the nature and circumstances of the offense charged, 2 the weight of the evidence against him, 3 the financial ability of the defendant to give bail and 4 the character of the defendant."
So it is the duty of the court, in considering the pending motions, to determine whether and, if so, to what extent the bail of $50,000 heretofore fixed as to each of the defendants exceeds the amount which will give adequate assurance of the presence of the accused, having regard to the traditional standards expressed in the above quoted provisions of Rule 46(c).
The first of these traditional standards involves "the nature and circumstances of the offense charged".
The defendants at bar are charged with the offense of which Gus Hall, Gilbert Green, Henry Winston, Robert G. Thompson and others were convicted in 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.
Indeed the defendants in the Dennis case are charged as "co-conspirators but not defendants" in the indictments here, and with the defendants at bar and "divers other persons" stand accused of what appears in substance to be the identical conspiracy of which Dennis and others were convicted in the Southern District of New York. United States v. Foster, D.C., S.D.N.Y.1949, 9 F. R.D. 367, 374-375.
With respect to the nature of such an offense, Mr. Chief Justice Vinson said for the court in Dennis v. United States, supra, 341 U.S. at pages 497-498, 510-511, 71 S.Ct. at page 861:
Moreover, as Mr. Justice Douglas put it in Pinkerton v. United States, 1946, 328 U.S. 640, 644, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489:
See also the concurring opinion of Mr. Justice Jackson in Dennis v. United States, supra, 341 U.S. at pages 573-574, 71 S.Ct. 857.
The Smith Act originally provided maximum punishment of ten years imprisonment and $10,000 fine for violation of "any of the provisions," including § 3 which forbade a conspiracy to do "any of the acts" prohibited by § 2, 54 Stat. 671, §§ 2, 3, 5 (1940). Proof 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, 3 and 5 of the Smith Act later became §§ 10, 11 and 13 of Title 18 of the United States Code, 54 Stat. 670, 671 (1940). And when Title 18 of the United States Code was revised in 1948, the conspiracy section, 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 to be punished under the general conspiracy statute, 18 U.S.C. (1948 ed.) §...
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