United States v. Schneiderman

Decision Date19 August 1952
Docket NumberCr. No. 22131.
Citation106 F. Supp. 892
CourtU.S. District Court — Southern District of California
PartiesUNITED STATES v. SCHNEIDERMAN et al.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Walter S. Binns, U. S. Atty., Norman Neukom, Asst. U. S. Atty., Ray H. Kinnison, Asst. U. S. Atty., Los Angeles, Cal., Lawrence K. Bailey, Sp. Asst. to Atty. Gen., for plaintiff.

Ben Margolis, Los Angeles, Cal., for defendants Oleta O'Connor Yates, Mary Bernadette Doyle and Albert Jason Lima.

Norman Leonard, San Francisco, Cal., for defendants Loretta Starvus Stack, Ernest Otto Fox, also known as Ernest Otto Fuchs, and Frank Carlson, also known as Solomon Szkolnick.

Leo A. Branton, Jr., Los Angeles, Cal., for defendants Henry Steinberg, Ben Dobbs, also known as Benjamin Isgur and Carl Rude Lambert.

A. L. Wirin, Los Angeles, Cal., for defendants Al Richmond, also known as Abraham Richman, Rose Chernin Kusnitz and Frank Efroim Spector.

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

MATHES, District Judge.

Defendants are on trial under an indictment charging them as members of an alleged conspiracy to commit offenses against the United States, 18 U.S.C. § 371, prohibited by the Smith Act, 54 Stat. 670 (1940), 18 U.S.C. (1946 ed.) § 10; Id. (1948 ed.) § 2385, "by (1) wilfully * * * advocating and teaching the duty and necessity of overthrowing the Government of the United States by force and violence * * * and by (2) wilfully * * * helping to organize as the Communist Party of the United States of America * * * a group * * * of persons who teach and advocate the overthrow * * * of the Government of the United States by force and violence, with the intent of causing the * * * overthrow * * * of the Government * * * by force and violence as speedily as circumstances would permit."

The prosecution has rested the case in chief, and the defendants have presented numerous motions to strike portions of the evidence. Although the specifications embraced within the motions are myriad, the grounds upon which the motions are rested may be categorized under relatively few headings.

It is urged that certain evidence should be stricken because any offense which might have been committed during the period to which it relates is barred by the statute of limitations. The indictment was brought on December 21, 1951, and the contention is advanced that no evidence should be admissible as to matters occurring before December 21, 1948, 18 U.S.C. § 3282, even though such matters may have occurred during the period covered by the indictment — i. e., since the effective date of the Smith Act on June 28, 1940, 54 Stat. 670 (1940). The prosecution replies in summa that the alleged conspiracy at bar is a continuing one, and hence should be treated as one conspiracy instead of several.

Reliance is thus placed on the statement of Mr. Justice Holmes in United States v. Kissel, 1910, 218 U.S. 601, 607, 31 S.Ct. 124, 126, 54 L.Ed. 1168, that "when the plot contemplates bringing to pass a continuous result that will not continue without the continuous co-operation of the conspirators to keep it up, and there is such continuous co-operation, it is a perversion of natural thought and of natural language to call such continuous co-operation a cinematographic series of distinct conspiracies, rather than to call it a single one." See also Brown v. Elliott, 1912, 225 U.S. 392, 400-401, 32 S. Ct. 812, 56 L.Ed. 1136.

It is possible to misinterpret the language quoted as holding that whenever there is a "continuing conspiracy," there is in effect a tolling of the statute of limitations. Of course this is not true. Where as here there are two component elements of the offense — the agreement and an "act to effect the object of the conspiracy * * *" 18 U.S.C. § 371 — both are essential to constitute a punishable crime. The agreement is the element which can be continuous, while the overt act, by its nature is of short duration. See Hyde v. United States, 1912, 225 U.S. 347, 387-391, 32 S. Ct. 793, 56 L.Ed. 1114 (dissenting opinion, Holmes, J.).

Moreover, even though there may be a continuous agreement, as soon as an act is done "to effect the object" of that agreement, the crime of conspiracy is complete and an indictment for that offense must be found "within three years next after such offense shall have been committed." 18 U.S.C. § 3282; Pinkerton v. United States, 5 Cir., 1944, 145 F.2d 252, 254; Ware v. United States, 8 Cir., 1907, 154 F. 577, 12 L.R.A.,N.S., 1053, certiorari denied, 1907, 207 U.S. 588, 28 S.Ct. 255, 52 L.Ed. 353; see United States v. Bradford, E.D.La.1905, 148 F. 413, 418, 419, affirmed, 5 Cir., 1907, 152 F. 616, certiorari denied, 1907, 206 U.S. 563, 27 S.Ct. 795, 51 L.Ed. 1190.

This does not mean that evidence of the conspiracy antedating the three-year period is not admissible, but rather that in order to convict the accused, the proof must establish that the agreement, shown to exist prior to the three-year period, continued in effect, and an overt act was committed, within the three-year period of the statute of limitations.

Thus the doctrine of "continuing conspiracy" renders admissible evidence of the agreement and of overt acts beyond the three-year period — not to show the guilt of the accused at the time such acts were committed — but to show an illegal agreement, and any participation of a defendant in it, and his knowledge and intent; all to aid determination by the jury of the issues raised by the indictment as to whether, within the three-year period, (1) the conspiracy existed, (2) the defendant was a party thereto with the knowledge and intent charged, and (3) an overt act was done "to effect the object of the conspiracy".

The problem at bar in this connection is made to appear somewhat complex by the circumstance that the date from which the three-year period should be measured is a matter of dispute. Originally, the defendants were charged under two separate indictments: one charging twelve defendants was filed on July 31, 1951; the other charging the remaining three — defendants Spector, Carlson and Dobbs — was not found until September 5, 1951. Both indictments were later dismissed because of a defect of law, United States v. Schneiderman, S.D. Cal.1951, 102 F.Supp. 87, and the present indictment charging all fifteen defendants (the case as to defendant Doyle was later severed) was returned on December 21, 1951.

18 U.S.C. § 3288 declares that: "Whenever an indictment * * * is found * * insufficient for any cause, after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned not later than the end of the next succeeding regular term of such court * * * which new indictment shall not be barred by any statute of limitations."

And 18 U.S.C. § 3289 provides that: "Whenever an indictment is * * * found * * * insufficient for any cause, before the period prescribed by the applicable statute of limitations has expired, and such period will expire before the end of the next regular term of the court to which such indictment was returned, a new indictment may be returned not later than the end of the next succeeding regular term of such court * * * which new indictment shall not be barred by any statute of limitations."

By virtue of 18 U.S.C. §§ 3288, 3289 the Government argues that evidence of any overt act occurring within three years of the original indictment should be received as proof of the overt act required by 18 U.S.C. § 371. The prosecution does not specify which original indictment should fix the starting date, but the earlier indictment of July 31, 1951, is the only one which could affect the result here, since overt acts 11 and 12 of the present indictment are alleged to have occurred on August 21, 1948, and so are the only ones which fall within the three-year period next preceding the indictment of July 31, 1951, and without the period applicable to the "new indictment."

In any event the August 21, 1948 acts could not be shown as overt acts in the case against defendants Carlson, Dobbs and Spector, inasmuch as the original indictment charging them was not found until September 5, 1951. 18 U.S.C. § 3282.

As to the remaining defendants, the conspiracy is alleged to have commenced "from on or about June 28, 1940" (the effective date of the Smith Act), and to have continued to and including the date of the finding of the present indictment (December 21, 1951). From the very terms of the quoted statute, the original indictments were not found insufficient "after the period * * * of limitations has expired", 18 U.S.C. § 3288, nor will such period "expire before the end of the next regular term of the court to which such indictment was returned". 18 U.S.C. § 3289. Hence neither statutory provision relating back the date of filing of the "new indictment" is applicable here. See Fed.Rules Crim.Proc. rule 45(c), 18 U.S.C.A.

This holding does not however render inadmissible evidence as to alleged overt acts antedating the three-year period immediately preceding the "new indictment." For such evidence is admissible as relevant to the issue inter alia of whether or not an illegal conspiracy existed within the applicable three-year period — in this case December 21, 1948 to December 21, 1951.

The motion to strike, as being beyond the statute of limitations, evidence relating to the period commencing with the effective date of the Smith Act on June 28, 1940 and ending with the commencement of the period of limitations herein on December 21, 1948 must be denied for the reasons stated.

With respect to such evidence, the jury will be instructed in substance as follows:

Evidence as to alleged statements or declarations and teachings of instructors in alleged Communist Party schools, and as to certain alleged statements or declarations and...

To continue reading

Request your trial
12 cases
  • Wellman v. United States
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • November 18, 1955
    ...certiorari granted, 350 U.S. 860, 76 S.Ct. 104; United States v. Mesarosh, 3 Cir., 223 F.2d 449. See also: United States v. Schneiderman, D.C.S.D.Cal., 106 F.Supp. 892 and 906. The present appeal for the most part involves these same issues, which counsel urges upon us with considerable The......
  • Munoz v. Superior Court of Alameda Cnty.
    • United States
    • California Court of Appeals Court of Appeals
    • February 26, 2020
    ...were made " ‘prior to the crime,’ or themselves constitute the offense or an essential element thereof" (United States v. Schneiderman (S.D. Cal. 1952) 106 F. Supp. 892, 901 ).7 One of the grounds for petitioner’s section 995 motion and the writ petition taken from the denial of that motion......
  • People v. Colts
    • United States
    • United States Appellate Court of Illinois
    • August 17, 1993
    ...the course of direct examination infinitely more difficult and render cross examination virtually useless." (United States v. Schneiderman (S.D.Cal., 1952), 106 F.Supp. 892, 905.) Thus, the right to object to nonresponsive answers is one facet of a party's right to present his case. Defense......
  • United States v. Mirabal Carrion
    • United States
    • U.S. District Court — District of Puerto Rico
    • April 9, 1956
    ...Flynn, supra; United States v. Frankfeld, supra; United States v. Fujimoto, supra; United States v. Mesarosh, supra; United States v. Schneiderman, D.C., 106 F. Supp. 892. These motions must also be It is therefore ordered that all defendants' Motions to Dismiss the Indictment, the Motions ......
  • Request a trial to view additional results
2 books & journal articles
  • § 23.03 Opinion Rule: FRE 701
    • United States
    • Carolina Academic Press Understanding Evidence (2018) Title Chapter 23 Lay Witnesses: FRE 602 and 701
    • Invalid date
    ...Evidence: Common Sense and Common Law 24 (1947) ("In a way, all human assertions are opinions.").[23] United States v. Schneiderman, 106 F. Supp. 892, 903 (S.D. Cal. 1952). See also Central R.R. v. Monahan, 11 F.2d 212, 214 (2d Cir. 1926) ("Every judge of experience in the trial of causes h......
  • § 23.03 OPINION RULE: FRE 701
    • United States
    • Carolina Academic Press Understanding Evidence (CAP) Title Chapter 23 Lay Witnesses: Fre 602 and 701
    • Invalid date
    ...Evidence: Common Sense and Common Law 24 (1947) ("In a way, all human assertions are opinions.").[23] United States v. Schneiderman, 106 F. Supp. 892, 903 (S.D. Cal. 1952). See also Central R.R. v. Monahan, 11 F.2d 212, 214 (2d Cir. 1926) ("Every judge of experience in the trial of causes h......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT