The opinion of the court was delivered by: DIMOCK
This is a motion by all defendants to set aside a verdict of guilty and for a new trial. Defendants were convicted of conspiracy to violate the Smith Act, 18 U.S.C. § 2385, making it an offense to advocate forcible overthrow of the Government. The convictions were affirmed by the Court of Appeals for the Second Circuit, 216 F.2d 354, and certiorari was denied by the Supreme Court, 348 U.S. 909, 75 S. Ct. 295. Defendants are now serving sentences of imprisonment.
The motion is based upon an affidavit of one Harvey Matusow in which he retracts testimony given in behalf of the Government on the trial. The testimony specifically retracted consists almost exclusively of assertions by Matusow that he heard certain defendants and others representing the Communist Party state in substance that it had as an object the overthrow of the Government by force and violence.
The Government attorneys when they prepared this case had before them the charge to the jury in United States v. Foster (Dennis), D.C. 9 F.R.D. 367, 393, and the opinion of the Court of Appeals which considered it, United States v. Dennis, 2 Cir., 183 F.2d 201. That charge required that, to find the defendants in a Smith Act conspiracy case guilty, the jury must be satisfied that each defendant intended teaching or advocating 'with the specific intention and for the evil purpose of bringing about the overthrow or destruction of the Government of the United States by force or violence'.
The most difficult task that faced the Government in the prosecution of the defendants on the trial was that of establishing the presence of this personal intent of each defendant to cause the overthrow of the Government by force and violence. That the Communist classics advocated the necessity of a forcible overthrow was a matter of mere documentary proof. The defendants, however, maintained that the American Communist Party had abandoned that tenet. From the standpoint of the Government, therefore, proof of individual advocacy of the use of force and violence was necessary and proof that that was a principle of the American party was highly desirable. Proof of those facts was difficult to obtain. For example, in spite of the exhaustive investigation of which a government is capable in the preparation for a prosecution for a crime against its existence, the evidence offered at the trial indicating personal participation of the defendants was insufficient in the case of two of them to warrant submission to the jury of the case against them even though they were both avowed Communists.
Matusow began operating as an undercover informant for the Federal Bureau of Investigation in February 1950. He knew that the F.B.I. was investigating the Communist Party and its members in connection with Smith Act prosecutions. He knew further that the basis of a Smith Act case was the teaching and advocacy of the overthrow of the government by force and violence. Thus apprised of the object of his search, Matusow prepared and filed with the F.B.I. several periodic reports and, in October 1951, a final report of seventy-five pages. In not one of these is there a statement of any advocacy by the American Communist Party or any of its members of the duty of overthrowing the Government of the United States by force and violence. Matusow was certainly not unmindful of the subject for, in reporting on a trip to Puerto Rico in the seventy-five page report, he said that the Nationalist Party of Puerto Rico and the Communist Party of Puerto Rico were 'one party of force and violence, actively working to get rid of the USA.'
On December 19, 1951, on the invitation of an F.B.I. agent, Matusow attended a rendezvous in an automobile parked in a secluded street in New York. There were present Mr. Marks, Special Assistant to the United States Attorney, who was then in charge of the case, Messrs. Cohn, Blinder and Foley, Assistant United States Attorneys, all of whom were then assisting in the preparation of the case for trial, and Mr. McCarthy, an Agent of the F.B.I. who is also a member of the bar.
At this rendezvous interview, Matusow was asked particularly about party schools and, as disclosed by his diary, was asked what, if anything, he had heard any of the seventeen defendants say that was 'part of the indictment.' The indictment charged that the defendants conspired to advocate and teach the duty and necessity of overthrowing the Government of the United States by force and violence and to organize as the Communist Party a group who teach and advocate such overthrow and destruction. Matusow was thus alerted to the Government's search for evidence of the teaching of force and violence.
Agent McCarthy and Assistant United States Attorney Blinder both made notes of the interview at the motor car rendezvous. McCarthy immediately after the interview made a teletype report to headquarters in Washington and later, on January 30, 1952, he amplified it by a letter to the F.B.I. Director. Blinder, on January 25, 1952, transcribed his notes.
The preparation of Matusow as a witness was first assigned to Blinder. Due to a series of unforeseen events, the assignment was successively transferred first to Cohn and then to Assistant United States Attorney Reagan. Blinder and Cohn both prepared comprehensive 'trial briefs' of the testimony that Matusow was expected to give and Reagan, who interviewed Matusow only a few days before he took the stand, contented himself with memoranda for organizing his examination of Matusow as a witness. Some of the 'trial briefs' were prepared by putting questions to Matusow and having the questions and his answers taken down in stenographic he prepared a trial brief of that interview. form by the stenographer and transcribed.
On February 17, 1952, Blinder saw Matusow for the first time after the motor car rendezvous. On February 18th he prepared a trial brief of that interview. On April 24, 1952, after further converse with Matusow, Blinder prepared a second and superseding trial brief. Matusow's preparation was then turned over to Cohn who, after seeing Matusow, made manuscript notations on Blinder's trial brief of April 24th and then produced one of his own, dated June 10, 1952. Reagan then took over and, some time in July, made a memorandum for use in Matusow's examination on the trial. All of these papers and, in addition, many of the stenographic notes have been preserved and were produced on the hearing.
My opportunities for getting an understanding of Matusow's character have been very extensive. He testified before me for eight days on the trial of the case and for seven days on the hearing of this motion. On this motion there have been submitted, among many others of Matusow's productions, diary entries going as far back as the time when he recorded what he terms his 'ideological break' with the Communist Party on New Year's Eve, 1948, his reports to the F.B.I., including the seventy-five page document, a letter to Senator McCarthy, a letter to the Russian Ambassador, his testimony before the House Un-American Activities Committee, his testimony before the Subversive Activities Control Board, Bishop Oxnam's descriptions of Matusow's two conversations with him, 165 pages of transcribed tape recordings of Matusow's conversations with the editor of his book 'False Witness', and finally the book itself.
From before the time that he joined the Communist Party the course of Matusow's life has been determined by his inability to reconcile himself to the position of a man of no importance. He has been unable to attain a position of importance in open competition under the rules of the game. He sought importance within the closed competition of the Communist Party where the reluctance of many of ability to enter assured prominence to the zealous. He then sought importance by breaking the rules of the game that he was playing, first in bearing tales to the Government and then in bearing tales to the Communists. His mental attitude is revealed by the note that he made in his diary after the motor car rendezvous, 'Mr. Cohn said he was almost sure that they would use me.' He was not content to submit his seventy-five page report to the F.B.I. alone but turned over a copy to a newspaper reporter who specialized in Communist exposes. Each of the two turnabouts that Matusow has taken since joining the Communist Party has been calculated to enhance his importance. He made himself important to the Government by helping to build the Government's case against the Communists and now seeks, with the technique that he has gradually developed, to make himself still more important by breaking down the structure erected by the Government itself.
Matusow's craving for a role in the center of the stage has kept him chronically impecunious. His energies have been directed to the satisfaction of that craving, leaving no time for, or interest in, earning a living. Money, even in small sums, has thus meant much to him. For his services as an informer in 1950 the F.B.I. paid him $ 325 and reimbursed him for his expenses. The newspaper reporter to whom he had turned over a copy of the seventy-five page report wrote a series of articles based on it. They were published under Matusow's name and he divided with two others the $ 750 paid for it. He was in serious need of money at the time of the motor car rendezvous and, after testifying on the trial of this case, he sought (unsuccessfully) to get $ 25 a day, for the sixty-one days that he had spent in preparation and on the stand, instead of the customary $ 4 a day witness fee and $ 5 'per diem' which he had received from the Department of Justice for services as a prospective and actual witness in this case. In the period before his recantation he was borrowing sums like $ 5 and $ 10. That state of his finances was improved by advances from the publishers of his book 'False Witness', a chapter in which is based upon his recantation in this case.
Matusow is a completely irresponsible witness. On the hearing of this motion he claimed privilege against disclosing the name of a spiritual adviser to whom he said he had confessed his alleged perjuries. Decision of the question of privilege was deferred until the next morning and he was asked to write down the name of the spiritual adviser and seal up the paper and deliver it to the court to be kept until the decision should be reached. What Matusow was writing on the paper seemed to take more time than if it were merely a name and he was asked four times whether he had written the name of a person. To each question he replied that he had. When, on the next morning, his claim of privilege was rejected and the paper was opened, it appeared that Matusow had written 'The Church of Jesus Christ Latter Day ...