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UNITED STATES v. FOSTER

October 22, 1948

UNITED STATES
v.
FOSTER et al. (two cases)



The opinion of the court was delivered by: HULBERT

The twelve individual defendants, named in thirteen indictments returned by a Grand Jury of this District, address there motions to each of said indictments.

The first indictment charges that the twelve individuals named therein, from on or about April 1, 1945, up to the time of the filing of the indictment (July 10, 1948), conspired with each other and with divers other persons to the Grand Jury unknown, 'to organize as 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, and knowingly and wilfully to advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence', prohibited by section 10, *fn1" Title 18 U.S.C.A., commonly known as the Smith Act.

 Each of the other twelve indictments returned by the same Grand Jury and filed on the same date, charges, that from on or about July 26, 1945, up to the time of the filing of the indictments, the Communist Party of the United States of America has been 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, and that during such period each individual defendant has been a member of said Communist Party, well knowing during all of such period that said Communist Party was and is 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, prohibited by sections 2 and 5 of the Act of June 28, 1940, sections 10 and 13, *fn2" Title 18 U.S.C.A., commonly known as the Smith Act.

 The cause was ably argued on three successive days, and voluminous briefs were submitted in which the issues involved were exhaustively discussed, and all of which has been carefully considered.

 I. The first motions seek a dismissal of both indictments on the following grounds:

 1. That no legal evidence was presented to the Grand Jury in support of the charges alleged in said indictments,

 2. That said indictments were returned by the Grand Jury solely as the result of undue and unlawful influence and pressure exerted on the Grand Jury, and

 3. That the Grand Jury was improperly impanelled because 'there appears to have been' a systematic exclusion of people of the working class and members of the colored race from said Grand Jury.

 Before considering these contentions, it should be pointed out that a motion to quash an indictment for the absence or incompetency of evidence before the Grand Jury is addressed to the discretion of the court. Stewart v. United States, 8 Cir., 1927, 20 F.2d 376; Sutton v. United States, 9 Cir., 1935, 79 F.2d 863. Furthermore, the burden is upon the defendants to prove the grounds for quashing the indictment, by showing affirmatively facts that overcome the presumption of the validity of an indictment regularly returned. Gridley v. United States, 6 Cir., 1930, 44 F.2d 716; United States v. Lynch, D.C. La. 1926, 11 F.2d 298.

 Concerning the allegation that no legal evidence was presented to the Grand Jury to justify the finding of these indictments, it should be emphasized that a strong presumption exists that the Grand Jury, which is under oath, has faithfully discharged its duty; the indictment can be quashed on this ground only if it is clearly established that it was returned without evidence. Cox v. Vaught, 10 Cir., 1931, 52 F.2d 562. Defendants, of course, also have the burden of proof. Gridley v. United States, supra.

 Defendants base their argument in part, on the ground that on February 5, 1948, the United States Attorney General appeared before the Committee on Un-American Activities of the House of Representatives and stated that at that time he did not think the Department of Justice had sufficient evidence to warrant any indictments under the Smith Act; counsel for the defendant submitted to the court a report issued by the Un-American Activities Committee on May 11, 1948, to support their statement that no new evidence had been adduced since the Attorney General's appearance before it. On May 27, 1948, the Attorney General told a press conference that the Grand Jury had recessed to allow the F.B.I. to make additional investigations.

 Defendants also point to various statements of Government officials to the effect that the Government was watching all Un-American activities closely and that indictments would be sought when the evidence warranted it.

 Defendants further contend that no evidence of violation of the Smith Act was adduced at any time before the Grand Jury.

 The court is of the opinion that these general allegations do not justify the conclusion that no evidence was presented to this Grand Jury which warranted the finding of these indictments.

 As additional relief to the motion to dismiss, the defendants requested that an order be made for the inspection of the Grand Jury minutes and that testimony be taken before the court in support of the allegations set forth in the moving papers, and that in any event the court inspect the minutes of the Grand Jury.

 Concerning the alleged undue influence and pressure that defendants claim was brought to bear on the Grand Jury, the court would not dismiss the indictments on this ground unless defendants supported this general conclusion with facts. Shreve v. United States, 9 Cir., 1935, 77 F.2d 2, certiorari denied 296 U.S. 654, 56 S. Ct. 380, 80 L. Ed. 466. Defendants base their contention mainly on a series of forty odd newspaper clippings which are annexed to the moving papers and, according to the defendants, show that because of so-called 'leaks' from the Jury room, and from statements of various Government officials, and surmises of newspaper columnists and reporters, such a state of hysteria was created that the Grand Jury was coerced into handing down some kind of an indictment 'come hell or high water'.

 The claim that the Government was a party to this campaign of propaganda is adequately controverted by affidavits submitted in opposition to the motion. Nor does the court think that the newspaper clippings sustain the conclusions the defendants attribute to them. The court has examined very carefully all the exhibits attached to the moving papers and is persuaded that for the most part they show merely the nation-wide interest and speculation which has surrounded this case from its very inception. There is no reason for the court to infer that the Grand Jurors did not abide by their sworn oaths not to return indictments unless they were satisfied by the evidence adduced before them that the indictments were justified.

 Defendants also decry so-called 'leaks' concerning espionage investigations that are said to have come from the Jury room. They then draw the anomolous inference that since nothing 'leaked out' of the Grand Jury room concerning Smith Act violations that, therefore, no evidence of such violations could have been presented. The mere statement of this proposition is its own refutation.

 Furthermore, defendants make no showing that any Grand Juror was actually coerced or influenced by the newspaper reports. Consequently, defendants, have failed to discharge their burden in that respect.

 The court could not conceivably justify the propriety in this case of the hearing requested by the defendants with the right to adduce testimony. The defendants have not raised a reasonable doubt in the mind of the court concerning the conduct of the Grand Jury investigations.

 The writer will not disregard the time honored precedent in this court not to grant an inspection of the minutes. In United States v. Garsson, D.C.S.D.N.Y. 1923, 291 F. 646, 649, Judge Hand, now Senior Circuit Judge in this Circuit, said:

 'Finally, the defendants, recognizing that it is difficult to make a case for quashal by the scraps of evidence accessible, move for inspection of the grand jury minutes. I am no more disposed to grant it than I was in 1909. United States, v. Violon, C.C. 173 F. 501. It is said to lie in discretion, and perhaps it does, but no judge of this court has granted it, and I hope none ever will.'

 However, acceding to the suggestion of the defendants and concurred in by the United States Attorney, and exercising its own prerogative, McKinney v. United States, 8 Cir., 1912, 199 F. 25; United States v. American Medical Association, D.C. 1939, 26 F.Supp. 429, and cases cited; United States v. Perlman, D.C.S.D.N.Y. 1917, 247 F. 158, the court has read the transcript of the testimony and evidence adduced before the Grand Jury and is clearly of the opinion that it was sufficient to warrant the Grand Jury in returning these indictments.

 Regarding the serious charge of the defendants that there 'appears to have been' a systematic exclusion of all working people and all members of the colored race from the Grand Jury, the proof must be clear to sustain it.

 That no colored persons were called for Grand Jury duty is not ground for quashing an indictment so long as the record does not show that colored people were deliberately or intentionally not called for Jury service because of their race or color. Nanfito v. U.S., 8 Cir., 1927, 20 F.2d 376. Also, the mere fact that no wage earners were on the Jury would not be enough to entitle the defendants to complain unless it is shown by facts that wage earners were intentionally excluded from the Grand Jury. Mamaux v. U.S., 6 Cir., 1920, 264 F. 816; Smith v. Mississippi, 1896, 162 U.S. 592, 16 S. Ct. 900, 40 L. Ed. 1082.

 The defendants have failed to present any facts to show that colored persons and wage earners were intentionally excluded from the Grand Jury. Indeed, affidavits submitted by the Government in opposition to the motion ...


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