United States v. Silverman

• Decision Date: 06 July 1955
• Docket Number: No. 9111.,9111.
• Citation: 132 F. Supp. 820
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Simon SILVERMAN, a/k/a Sid Taylor, et al.

132 F. Supp. 820

UNITED STATES of America v. Simon SILVERMAN, a/k/a Sid Taylor, et al.

No. 9111.

United States District Court D. Connecticut, Criminal Division.

July 6, 1955.

COPYRIGHT MATERIAL OMITTED

Simon S. Cohen, U. S. Atty., Dist. of Conn., Francis J. McNamara, Jr., Asst. U. S. Atty., Dist. of Conn., New Haven, Conn., James A. Cronin, Jr., Sp. Asst. to the Atty. Gen., for plaintiff.

Catherine G. Roraback, New Haven, Conn., Samuel Gruber, Stamford, Conn., Frank J. Donner, New York City, for defendants.

ANDERSON, District Judge.

The defendants in this action were indicted by the Grand Jury on March 4, 1955, for violation of the Smith Act, 18 U.S.C.A. § 2385, in that they conspired unlawfully, wilfully and knowingly to advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence with the intent to cause said overthrow and destruction of the Government of the United States by force and violence as speedily as circumstances would permit; and also in that they conspired unlawfully, wilfully and knowingly to organize and help to organize 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 with the intent to cause the aforesaid overthrow and destruction of the Government of the United States by force and violence as speedily as circumstances would permit. The indictment adds certain specifications concerning the conspiracy and lists seventeen overt acts connected therewith.

The defendants in this action are the same as those named in a former action in this court, Criminal No. 8991, 129 F.Supp. 496, the indictment in which was dismissed by the court on February 23, 1955, with the exception of Martha Stone, also known as Mrs. Emil Asher, who is a defendant in the present action but who was not a defendant in Criminal No. 8991. The indictment is the same as that in the former case, No. 8991, except that additional persons, not defendants, have been named as co-conspirators and the overt acts include allegations as to Martha Stone and are set out in a different numerical order.

The present indictment returned March 4, 1955, is attacked by the following motions filed by the defendants:

(a) For inspection of Grand Jury minutes, hearing and other relief

(b) Challenging the array, for inspection of jury commission's records and further relief

(c) To sever

(d) To dismiss indictment

(e) To strike overt act number one

(f) For a bill of particulars

(g) To dismiss the indictment because of Communist Control Act of 1954

The defendants have also made the following preliminary motions:

(h) To return seized documents

(i) To produce documentary evidence before trial under Rule 17(c), Fed.R.Crim.P. 18 U.S.C.A..

(j) For discovery and inspection of documentary evidence before trial, under Rule 16, Fed.R.Crim.P.

These motions have all been heard and briefs have been filed on them by all of the parties. The motions will be discussed in the order in which they appear above.

(a) Motion for Inspection of Grand Jury Minutes, Hearing and Other Relief

The defendants assert that the Grand Jury could not have deliberated a sufficient length of time to consider adequately the evidence in the case and properly fulfill the duties which the law imposes upon it. It appears that between March 2, 1955, at about 11:30 A. M., when the Grand Jury was impanelled and charged and March 4, 1955, at 10:30 A.M. when the indictment was returned, the Grand Jury deliberated on this case for a little over eleven hours. The defendants conceded that this alone might not be enough to warrant an inspection of the Grand Jury minutes and they, therefore, sought to examine the foreman of the Grand Jury by oral examination or interrogatories to find out the kind of evidence presented to the Grand Jury, the extent to which the Grand Jury inquired into the interest of the witnesses, if any, the length of time consumed in hearing evidence, the length of time consumed in deliberation and other similar matters. Without giving any reason for it or any offer of proof to support their contention, they claim that such an examination would produce evidence to justify an inspection of the Grand Jury minutes. They admit they have no real reason to ask for an inspection of the minutes, nor have they any basis at all, let alone a reasonable one, for a hearing to examine the foreman of the Grand Jury and perhaps others. In effect they say that if they can examine the periphery of the Grand Jury proceedings, they may be able to come up with an adequate reason. The court cannot authorize such a speculative foray, prompted solely by hope and grounded solely on suspicion and surmise. The subpoena of the foreman of the Grand Jury issued for this purpose was quashed and the motion is denied. U. S. v. Remington, 2 Cir., 191 F.2d 246; Cox v. Vaught, 10 Cir., 52 F.2d 562; and U. S. v. Fujimoto, D.C., 102 F.Supp. 890, 896.

(b) Motion Challenging The Array, for Inspection of Jury Commission Records and Further Relief

In the former case, No. 8991, the motion challenging the array was granted and the indictment was dismissed because the jury commissioners failed to apply the statutory qualifications in making up the jury list. Reference is made to the general discussion of the applications of the statutory standards and the methods of selecting jurors in that case, U. S. v. Silverman, D.C., 129 F.Supp. 496, 507. In the present case the Grand Jury was drawn from a new jury list made up by a new jury commission which took office on January 1, 1955. The commissioners are the Clerk of the Court, Gilbert C. Earl, who prior to his appointment as Clerk on January 1, 1955, was for a long time chief deputy clerk of this court, and Addison Mueller, who for many years has been a Professor at the Yale University School of Law. At the hearing on this motion they described their method of making up the jury list as follows:

I

(a) Each member of the Jury Commission selects from those areas of the District of Connecticut prescribed by Court Order of September 7, 1954, a number of citizens from a variety of backgrounds whom he has reason to believe have a wide acquaintance in their respective communities and are esteemed therein as persons of good character, approved integrity, sound judgment and fair education. The function of these citizens — hereinafter called "suggesters" — is to furnish to the Jury Commission the names of residents of their communities who, in their considered opinions, are qualified for jury service.

(b) An index card is prepared for each suggester.

(c) The Jury Commissioners confer on their choices of suggesters. In this conference they exchange information on the qualifications of the suggesters selected by each; they eliminate duplications of names; and they survey the entire list to minimize the possibility that in their selection of suggesters they have inadvertently discriminated against any significant area or racial, religious, occupational or environmental group. When a suggester has been approved by both Commissioners, his index card is initialled by them.

(d) A letter is sent to each suggester. This letter outlines in detail the points that the suggester must consider in making up his list of proposed jurors. This letter reads as follows:

"Dear

"The right to a trial by jury is one of our most cherished democratic traditions. But this right can be a meaningful one only if jurors are capable and impartial and are selected without regard to race, color, creed, politics or station in life. We, as newly appointed jury commissioners for the Federal Court in New Haven, are charged with the duty of getting jurors of this kind. And because such jurors should be drawn from all parts of the large area served by the New Haven Court and should represent all walks of life and points of view, we need the help of conscientious and well-informed citizens in properly discharging this obligation. That is why we are calling on you to suggest the names of men and women in your community who, in your judgment, would make qualified jurors.

"In making your suggestions, please keep the following statutory requirements in mind. To be qualified for jury duty, a man or woman must be:

"1. Twenty-five years of age or over;

"2. A present resident of Connecticut who is a qualified voter;

"3. Free from mental or physical infirmities which would interfere with the efficient performance of jury duty;

"4. Free from ever having been convicted of a crime punishable by imprisonment for more than one year;

"5. Able to read, write, speak and understand the English language, and

"6. Esteemed in his community as a person of good character, approved integrity, sound judgment and fair education. In determining `esteem,' please keep in mind that this does not require wide public recognition or high place. Integrity, intelligence, sound judgment, a sense of responsibility — in short, all those qualities of a first-class citizen which cause a man to be esteemed by his fellows — are as often to be found among the unheralded as among the prominent.

"It is because we feel that you are in a position to know citizens who measure up to all of these standards that we are calling on you. For your convenience, we are enclosing a sheet on which to list your candidates. In making up this list, we ask that you make a conscious effort to include men and women from a variety of backgrounds and occupations so as to give us, as nearly as possible, a representative cross-section of your community. Please list up to twenty names on this sheet, sign it, and return it in the enclosed envelope which needs no stamp. Your suggestions will, of course, be kept in strictest confidence by us. And, though we do not want you to act hastily in the important task of making up your list, we ask that

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