United States v. Silverman, No. 8991.

• Court: United States District Courts. 2nd Circuit. United States District Court (Connecticut)
• Citation: 129 F. Supp. 496
• Decision Date: 23 February 1955
• Docket Number: No. 8991.
• Parties: UNITED STATES of America v. Simon SILVERMAN, a/k/a Sid Taylor, et al.

129 F. Supp. 496

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

No. 8991.

United States District Court, D. Connecticut, Criminal Division.

February 23, 1955.

129 F. Supp. 497

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129 F. Supp. 498

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Simon S. Cohen, U. S. Atty., Hartford, Conn., Francis J. McNamara, Jr., Asst. U. S. Atty., 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., Marvin D. Karp, Hartford, Conn., for defendants.

ANDERSON, District Judge.

The defendants in this action were indicted by the Grand Jury on June 4, 1954, 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

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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 have attacked the indictment through several motions which will be discussed and ruled upon seriatim:

Motion to Sever

Each of the defendants seeks a severance of his trial from the trials of the other defendants. The defendants contend that unless a severance is granted the jury will be faced with an impossible task in attempting to sift and weigh the evidence applicable to a particular defendant but not admissible as to the others.

It is clear that the granting or denial of a severance is within the sound discretion of the court. Fed.R.Crim.P. 14, 18 U.S.C.A.; Dauer v. United States, 10 Cir., 189 F.2d 343, certiorari denied, 342 U.S. 898, 72 S.Ct. 232, 96 L.Ed. 672. In a conspiracy case where the charge against all the defendants may be largely proved by the same evidence and results from a similar series of acts, as is alleged here, a severance should not be granted except for strong and cogent reasons. United States v. Cohen, 2 Cir., 124 F.2d 164; United States v. Smith, 2 Cir., 112 F.2d 83; United States v. Mesarosh, D.C., 13 F.R.D. 180. Moreover, evidence relating to acts and declarations of all the conspirators in furtherance of the conspiracy are admissible against all whether or not each defendant is tried alone or jointly. United States v. Flynn, 2 Cir., 216 F.2d 354. I am not persuaded that the defendants are entitled to a severance in this case and the motion is, therefore, denied.

Motion to Dismiss Indictment and Strike Overt Act No. 17

The first three paragraphs of the defendants' motion state several grounds of attack on the constitutionality of the Smith Act. There is, however, nothing in these motions or in the oral arguments or written memoranda of defendants' counsel which is persuasive to distinguish the present case in its constitutional aspects from Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L. Ed. 1137, and United States v. Flynn, D.C., 103 F.Supp. 925, affirmed, 2 Cir., 1954, 216 F.2d 354. The finding of constitutionality of the Smith Act in these cases is determinative of the constitutional questions raised in this case. The motion on these grounds cannot, therefore, be sustained.

In paragraphs four and five of the motion to dismiss, the defendants raise questions based on the three year statute of limitations. They assert that the indictment is based in part upon Section 3 of the Smith Act, that this section was repealed September 1, 1948, and that no prosecution could be brought on it after August 31, 1951. They further ask the court to take judicial notice that the Communist Party of the United States was organized between July 26 and July 28, 1945, — several years prior to June 4, 1951, which is three years (i. e. the period of limitation) before the return of the indictment in the present case. From this they argue that the allegation in the indictment concerning "organizing * * * the Communist Party" is barred by the statute of limitations and, therefore, the whole indictment, which is in but one count, must fall.

Section 3 of the Smith Act was the conspiracy section of the Act. This section was repealed on June 24, 1948, the repeal to become effective September 1, 1948. On June 25, 1948, Section 371 of Title 18 U.S.C.A. was passed, effective September 1, 1948, as a general conspiracy statute and contained the same provisions in so far as this action is concerned as the repealed Section 3 of the Smith Act except that there was required the showing of overt acts and the maximum penalty attached became five years imprisonment instead of ten.

129 F. Supp. 501

Therefore, as soon as the repeal of Section 3, the special conspiracy provision of the Smith Act, became effective, the general conspiracy statute Title 18 U.S. C.A. Section 371 came into operation as far as conspiracies to violate the Smith Act were concerned, substantially in the same manner and to the same extent as before. The reviser's notes show that the special conspiracy section of the Smith Act was omitted when the Smith Act was reenacted June 25, 1948, because this provision was fully taken care of by the general conspiracy statute. Historical and Revision Notes after Title 18 U.S.C.A. Section 371 and Section 2385. Incidentally the statute of limitations (Title 18 U.S.C.A. Section 582, 1940 ed.) applicable to Section 3 of the Smith Act was also repealed June 25, 1948, and the statute taking its place is now Title 18 U.S.C.A. Section 3282. Congress had no intention of removing from the laws a statutory provision making conspiracy to violate the Smith Act a crime. Nor did it do so. The history of the conspiracy section and the subsequent general conspiracy statute show them to have been a part of a revision and consolidation, the operative effect of which was to reenact and continue the former act so that all rights and liabilities under it were preserved and carried forward as if there had been no so-called "repeal." 50 Am.Jur. Section 533, Section 555

The defendants seek to have the court now find that the Communist Party was organized at a National Convention in New York City between July 26 and July 28, 1945, and at no other time; and that the conspiracy in the indictment is based in substantial part upon the activities at this July, 1945, convention. If these things are true, then the statute of limitations might well apply to them. But the court has no right at this time to find they are true or that the charge is confined to so narrow a scope. The indictment alleges that from April 1, 1945, and "continuously thereafter up to and including the date of the filing of this indictment" the defendants conspired with each other and others (1) "* * * advocating and teaching the duty and necessity of overthrowing and destroying the Government of the United States by force and violence * * *" and (2) "* * * organizing and helping to organize, as the Communist Party * * * a group * * * who teach and advocate * * * the overthrow and destruction of the Government of the United States by force and violence * * *." These allegations, covering a span of more than nine years, present a charge of "organizing" which goes considerably beyond the confines of three days in July, 1945. The court at this stage of proceedings cannot adopt as a matter of law so narrow a definition of "organize" as to restrict it to activities at a National Convention of the Communist Party in July of 1945.

For the purpose of a motion to dismiss, the court must take the facts from the allegations of the indictment and not from the arguments of the parties. The indictment presents a claim of a continuing conspiracy; overt acts, alleged to have been committed by the various defendants, run from May 3, 1952, the earliest, to December 21, 1953, the last. The statute of limitations runs from the time of the last overt act. United States v. Johnson, 3 Cir., 165 F. 2d 42, certiorari denied, 332 U.S. 852, 68 S.Ct. 355, 92 L.Ed. 421. Proof may show that the defendants were not conspiring to organize or help to organize from April 1, 1945, to the date of the indictment, but that is something to be dealt with at the trial and not on a preliminary motion such as this.

Paragraph six of the defendants' motion to dismiss states several reasons why they believe the indictment is legally insufficient in failing to allege essential elements of the offense charged. These objections fall generally into three groups. First, it is claimed that the indictment does not specifically allege actions or speech on the part of any one of the defendants which was ordinarily and reasonably calculated to incite to the illegal actions charged; second, that there are no facts alleged showing that the

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conspiracy charged or conditions connected therewith created a clear and present danger to the Government of the United States; and third, that there are no facts alleged that the conspiracy charged would probably bring about, or that the defendants had the power to bring about, the overthrow or attempted overthrow of the United States Government

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