The opinion of the court was delivered by: BICKS
On June 20, 1951, the Grand Jury returned an indictment charging that the twenty-one persons named therein as defendants unlawfully, wilfully and knowingly conspired with each other, with twelve named co-conspirators and with divers other persons to the Grand Jury unknown, '(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 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.'
Fifteen of the defendants stood trial; two were acquitted by direction of the Court at the close of the Government's case, the remaining thirteen were found guilty. The judgments of conviction were affirmed. United States v. Flynn, 2 Cir., 1954, 216 F.2d 354, certiorari denied 1955, 348 U.S. 909, 75 S. Ct. 295, 99 L. Ed. 713, rehearing denied 1955, 348 U.S. 956, 75 S. Ct. 436, 99 L. Ed. 747.
A new trial was ordered as to defendants Alexander Trachtenberg and George Blake Charney on the ground that the jury might have acquitted them but for certain testimony later discovered to be perjurious. Four of the defendants, Sidney Stein, Fred Fine, James E. Jackson and William Norman Marron, were not available at the trial. They have since either been apprehended or surrendered.
The Government is now moving on the trial of the four formerly absent defendants, the two defendants as to whom a new trial was ordered and a seventh defendant, Marion Bachrach, who obtained a severance during the course of the first trial because of ill health.
Six pretrial motions heretofore brought on by the defendant Stein were decided by this Court on July 26, 1955. United States v. Stein, D.C., 18 F.R.D. 17. The Court has since been presented with the following additional motions:
(1) A motion by the defendant Marion Bachrach to dismiss the indictment as to her on the grounds that: (1) She has already been acquitted of all the charges contained in the indictment; (ii) she has already been in jeopardy upon all of said charges; and (iii) the prosecution as to her has heretofore been abandoned and discontinued by the Government.
During the course of the first trial the Court was advised that Marion Bachrach was seriously ill and in need of immediate hospitalization. A Court appointed physician reported that she required an 'extensive, major operation' which would necessitate three to four weeks in a hospital and a period of convalescence of about three months. The following colloquy then ensued:
'The Court: * * * Under the circumstances, what do you think ought to be done?
'Mr. Wright (Counsel for Mrs. Bachrach): Well, we have pending before you now a motion for severance, and it was pending before the Court appointed the physician. In view of that I would think it would be necessary for your Honor to rule on that, taking this (the physician's report) into account.
'The Court: What is the position of the Government with respect to the motion?
'Mr. Marks: In view of this report, your Honor, the Government consents to the defendants' (sic) motion for a severance.
'The Court: And the order of the Court is that the prosecution against the defendant Marion Bachrach is severed, and the prosecution of the remaining defendants will proceed and the proceedings heretofore taken will stand as the proceedings in the presecution against the remaining defendants.
'Mr. Wright. Your Honor, in that connection I wonder if your Honor would also in the present direction (sic) continue the present bail.
'The Court: Yes. Bail will be continued.'
It is urged that placing her on trial now constitutes double jeopardy in violation of her Fifth Amendment rights.
It is clear that the Court had the right to discharge the jury when it was informed of Mrs. Bachrach's condition. As Mr. Justice Story said:
'* * * the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.' United States v. Perez, 1824, 9 Wheat. 579, 22 U.S. 579, 6 L. Ed. 165. See Wade v. Hunter, 1948, 336 U.S. 684, 69 S. Ct. 834, 93 L. Ed. 974.
See also Himmelfarb v. United States, 9 Cir., 1949, 175 F.2d 924, certiorari denied 1949, 338 U.S. 860, 70 S. Ct. 103, 94 L. Ed. 527; United States v. Potash, 2 Cir., 1941, 118 F.2d 54, certiorari denied 1941, 313 U.S. 584, 61 S. Ct. 1103, 85 L. Ed. 1540.
The defendant does not argue to the contrary, but contends that the granting of her motion for a 'severance' did not have the effect of annulling the jeopardy which had theretofore attached. She urges such effect could result only if a mistrial had been ordered. This contention is without merit. There is no magic in the word 'mistrial'. It was on her motion that the severance was granted and the intention both of her counsel and the Court to discharge the jury as to her is unmistakable from the record. Her attempt to obtain immunity because of the alleged lack of technical precision of her own counsel smacks almost of entrapment. She obtained exactly the end result she sought -- relief from proceeding with the trial in order to submit to immediate surgery. Whatever jeopardy she had been subjected to at that time, she effectively annulled. The suggestion that the severance was tantamount to an acquittal is patently unsound. However high the tender regard for the rights of a person charged with crime, mere semantics cannot be availed of to confer a right neither sought nor intended to be obtained or granted.
Her contention that the prosecution has been discontinued and abandoned likewise is lacking in merit. It was not until February 28, 1955 that the judgments of conviction of the defendants against whom the trial continued were finally affirmed. Since then the Government has proceeded with reasonable alacrity. Motion denied.
(2) Motion by the defendant Marion Bachrach for a continuance or, in the alternative, a severance on the ground that her health will be seriously impaired if she ...