United States v. Schneiderman, 21888

Decision Date28 November 1951
Docket Number21940.,No. 21888,21888
Citation102 F. Supp. 52
CourtU.S. District Court — Southern District of California



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.

MATHES, District Judge.

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:

"From the passage of the judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46(a) (1), 18 U.S.C.A., federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, 1895, 156 U.S. 277, 285, 15 S.Ct. 450, 453, 39 L.Ed. 424. * * *

"The right to release before trial is conditioned upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty. Ex parte Milburn, 1835, 34 U.S. 704 9 Pet. 704, 710, 9 L.Ed. 280. Like the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is `excessive' under the Eighth Amendment. See United States v. Motlow, 10 F.2d 657 (1926, opinion by Mr. Justice Butler as Circuit Justice of the Seventh circuit).

"Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant. The traditional standards as expressed in the Federal Rules of Criminal Procedure are to be applied in each case to each defendant."

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:

"The Court of Appeals held that the record in this case amply supports the necessary finding of the jury that petitioners, the leaders of the Communist Party in this country, were unwilling to work within our framework of democracy, but intended to initiate a violent revolution whenever the propitious occasion appeared. * * *

"* * * the Court of Appeals held that the record supports the following broad conclusions: * * * that the Communist Party is a highly disciplined organization, adept at infiltration into strategic positions, use of aliases, and double-meaning language; that the Party is rigidly controlled; that Communists, unlike other political parties, tolerate no dissension from the policy laid down by the guiding forces, but that the approved program is slavishly followed by the members of the Party; that the literature of the Party and the statements and activities of its leaders, petitioners here, advocate, and the general goal of the Party was, during the period in question, to achieve a successful overthrow of the existing order by force and violence. * * *

"The mere fact that from the period 1945 to 1948 petitioners' activities did not result in an attempt to overthrow the Government by force and violence is of course no answer to the fact that there was a group that was ready to make the attempt. The formation * * * of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders * * * felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score. * * * It is the existence of the conspiracy which creates the danger."

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:

"A conspiracy is a partnership in crime. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253, 60 S.Ct. 811, 858, 84 L. Ed. 1129. It has ingredients, as well as implications, distinct from the completion of the unlawful project. As stated in United States v. Rabinowich, 238 U.S. 78, 88, 35 S.Ct. 682, 684, 685, 59 L.Ed. 1211:

"`For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered.'"

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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