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December 21, 1951

FLYNN et al.

The opinion of the court was delivered by: CONGER

These are motions by the defendants for certain relief, including the following: (1) dismissal of the indictment on various grounds; (2) suppression of certain evidence allegedly illegally obtained; (3) a bil or particulars as to matters alleged in the indictment; (4) a pre-trial subpoena of documents and papers presented to the Grand Jury or to be offered in evidence at the trial; (5) dismissal of the indictment, or in the alternative, for a hearing on this motion on the grounds that the indictment violates the Fifth and Sixth Amendments in that the Grand Jury returning it was not constituted according to law; and (6) a continuance and postponement of the trial.

The Government has also moved to quash subpoenas served on the Attorney-General of the United States, the Director of the Federal Bureau of Investigation, the Special Agent in charge of the New York office of the Federal Bureau of Investigation, and the Director of Census.

 The defendants are charged with conspiring along with others not defendants to violate Section 2 of the Smith Act *fn1" in that they conspired: '(1) 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; and (2) unlawfully , wilfully, and knowingly, to organize and help 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.'

 In all, the indictment contains 9 charging paragraphs and 29 overt acts.

 1. The bases of this motion are threefold: (a) that the statute of limitations bars that part of the indictment which alleges that defendants conspired to organize the Communist Party; that since these allegations form a substantial part of the indictment the whole indictment must fall; (b) that the indictment fails to state an offense under the Smith Act as the Act has been interpreted by the Supreme Court in United States v. Dennis, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137; (c) that the indictment of the defendants under the circumstances prevailing at the time the indictment was returned is invalid under the First Amendment and under the version of the clear and present danger test applied in the Dennis case.

 I shall deal with these points seriatim. (a) The statute of limitations applicable here provides that: '* * * no person shall be prosecuted * * * unless the indictment is found or the information is instituted within three years next after such offense shall have been committed.' 18 U.S.C. § 3282.

 The defendants point to paragraph 2 of the indictment which reads as follows: '2. It was part of said conspiracy that said defendants and co-conspirators would in the spring and summer of 1945, in the Southern District of New York, themselves participate and induce others to participate, in the dissolution of the Communist Political Association and the organization of the Communist Party of the United States of America as a society, group and assembly of persons to teach and advocate the Marxist-Leninist principles of the overthrow and destruction of the Government of the United States by force and violence.'

 Defendants argue from this that since the charged conspiracy to organize the Communist Party took place in 1945, more than three years prior to the time the indictment was found, this crime is barred by the statute of limitations. In addition, since these allegations are a substantial part of the indictment, the whole indictment must be dismissed.

 It seems to me that defendants misconstrue the crime charged in the indictment. They are charged not with what is usually termed a substantive crime, but with the crime of conspiracy. The essence of the crime of conspiracy is two or more persons combining with the intent and purpose of committing a public offense by doing an unlawful act or doing a lawful act in an unlawful manner. It is a distinct offense from that which the parties intend to accomplish as a result of the conspiracy.

 Where, during the existence of the conspiracy, there are successive overt acts, the period of limitation must be computed from the date of the last act of which there is appropriate allegation and proof, and this although some of the earlier acts may have occurred more than three years before the indictment was found. Fiswick v. United States, 1946, 329 U.S. 211, 67 S. Ct. 224, 91 L. Ed. 196; Brown v. Elliott, 1912, 225 U.S. 392, 32 S. Ct. 812, 56 L. Ed. 1136.

 Here we have charged a conspiracy commencing on or about April 1, 1945 and continuing up to the date of the filing of the indictment (June 20, 1951).

 A number of the overt acts are alleged to have occurred in 1951. Therefore, in accord with the above rule the statute of limitations is not a bar to this indictment, nor may any part of portion of the indictment be picked out to have the statute applied to it as a bar since all of the alleged criminal acts are charged to have been committed within the time scope of the conspiracy set forth in the indictment.

 The defendants' contention, which the Government disputes, rests principally upon the meaning of the word 'organize', but in view of my ruling above it will not be necessary to discuss or rule on this point.

 The defendants' motion to dismiss upon this ground is denied.

 (b) On this point the defendants reason thusly. Since, according to the holding in the Dennis case, the constitutional application of the Smith Act depends upon various circumstances and conditions not recited in the Act itself, the indictment is improper for failure to set forth these circumstances and conditions in accordance with Rule 7(c) of the Federal Rules of Criminal Procedure, 18 U.S.C., requiring that an indictment 'shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.'

 They further point out that it is apparent that the Dennis indictment was based upon the theory of Gitlow v. People of New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138, which held that the clear and present danger test did not apply because the statute there in question specifically outlawed utterances which the legislature had determined as involving such danger of substantive evil that they might be punished. And they say that the Gitlow rule was rejected by the Supreme Court in the Dennis case.

 The present indictment is patterned after the Dennis indictment. In fact, it is virtually identical pro tanto but it includes more charging paragraphs and lists 29 overt acts. The Dennis indictment contained no overt acts.

 Judge Medina found the Dennis indictment susceptible of proof of various circumstances and conditions upon which the constitutional application of the Smith Act depends. There is no reason, therefore, why that should not hold true in connection with the present indictment.

 Also it is again obvious that whether or not the present indictment is influenced by the 'discarded' Gitlow rule, it certainly is no more contaminated than the Dennis indictment which obtained a clean bill of health from Judge Medina upon a theory sustained by the Supreme Court and, inferentially, other than Gitlow.

 Assuming, therefore, that this point was not squarely raised in the Court of Appeals, nor in the Supreme Court in the Dennis case I would consider it rash to abuse an indictment patterned after one which met all attacks in the course of the Dennis litigation and culminated in the Dennis holding in the Supreme Court.

 I deny the defendants' motion on this ground.

 (c) This argument depends upon the purportedly changed conditions since the Dennis indictment was found.

 It is true that the Court of Appeals and the Supreme Court relied upon judicial notice of the 'times' and conditions in the world in determining clear and present danger.

 The defendants say now that I should take judicial notice of various pronouncements of Government officials and the like tending to minimize the influence of the Communist Party in this country as bearing upon the improbability of an attempt to overthrow the Government by force and violence.

 For example, J. Edgar Hoover, Director of the Federal Bureau of Investigation, has placed the number of members of the Communist Party in the United States on December 31, 1950 at 43,217. *fn2"

 The defendants ask what danger of the overthrow of the Government is represented in these members who number only 3/100 of 1 per cent of the total population of 160,000,000 in the United States.

 Without answering this question, I might take judicial notice of the fact that a successful revolution in Russia was accomplished by a group whose membership was probably less proportionately to the population of all Russia than the above figures show. *fn3" I might also take notice of the Korean War and the conflicting interests therein.

 I might also take judicial notice as Judge Frankfurter did in the Dennis case 'that the Communist doctrines which these defendants have conspired to advocate are in the ascendancy in powerful nations who cannot be acquitted of unfriendliness to the institutions of this country.' 341 page 547, 71 S. page 886, 95 L. Ed. 1137. (Emphasis added.)

 It might be enlightening at this point to call attention to an extract from the prevailing opinion in the Dennis case which seems to be quite apropos: 'In the instant case the trial judge charged the jury that they could not convict unless they found that petitioners intended to overthrow the Government 'as speedily as circumstances would permit.' This does not mean, and could not properly mean, that they would not strike until there was certainty of success. What was meant was that the revolutionists would strike when they thought the time was ripe. We must therefore reject the contention that success or probability of success is the criterion.' 341 page 510, 71 S. page 867, 95 L. Ed. 1137.

 However, I shall not take judicial notice of anything but rather I shall pass this point for determination at the trial where in addition to facts obtained through judicial notice, evidence of the probability or improbability of the substantive evil may be ...

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