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United States v. Silverman

decided: September 11, 1957.


Author: Clark

Before CLARK, Chief Judge, and HINCKS and WATERMAN, Circuit Judges.*fn1

CLARK, Chief Judge.

The five defendants herein appeal from a judgment of conviction after verdict of a jury on charges of having conspired to violate the Smith Act, 18 U.S.C. §§ 2385, 371, by "unlawfully, wilfully and knowingly advocating and teaching the duty and necessity of overthrowing and destroying the Government of the United States by force and violence, with the intent of causing the aforesaid overthrow and destruction of the Government of the United States by force and violence as speedily as circumstances would permit."*fn2 Three other defendants were also indicted; of these the jury acquitted one and disagreed as to another, while the third, who was convicted, has not appealed his suspended sentence.

Among other allegations of error appellants claim that they were unconstitutionally compelled to stand trial to a jury despite their strenuous efforts to waive that form of trial; they were prejudged by the congressional findings in the Communist Control Act, 50 U.S.C. § 841; and their speech did not constitute a "clear and present danger," as defined in Supreme Court precedents. We do not decide these far-reaching issues, however, because we hold the evidence insufficient to establish the first element of the crime charged: the conspiratorial agreement. In this opinion we shall examine, first, the precise nature and content of the agreement charged and, second, the evidence adduced to establish it. Finally, we shall consider the nature of our direction to the trial court in the light of our conclusion as to the evidence.

Even though we are constrained to find error, it seems desirable to say that the trial judge conducted the lengthy proceedings with outstanding dignity and the utmost fairness, in the tradition of the best American jurisprudence. And his rulings certainly had a rational basis in what then seemed to be the Supreme Court's approach and also afforded the most direct, if not the only, method of facilitating a definitive determination of the legal principles involved. That the questions presented difficulty from the beginning is clear. For the case dealt with what have been termed with some reason "third-string" Communist party officials, who, with the single exception of Stone, were merely local Connecticut functionaries, and with a conspiracy limited by the statute of limitations to the period March 1952 to March 1955, but alleged to be part of the continuing national conspiracy found in other cases to have been formed in 1945. The chains of connection with the heart of the often recognized Communist conspiracy are thus much longer and decidedly more tenuous than in the other cases we have had. The problem thus presented has been clarified since the conclusion of the trial by the very recent decisions of the Supreme Court, notably Yates v. United States, 77 S. Ct. 1064, 1073-1085, requiring for a conviction proof of an "advocacy of action," rather than "advocacy or teaching of abstract doctrines, with evil intent." We do not find here evidence of the necessary incitement to action.

Our discussion will follow the following outline:


A. The Persons Involved.

B. The Aim of the Conspiracy.


A. Evidence Covering the Years 1952-1955.

B. Oral Advocacy before 1952.

C. Written Advocacy before 1952.

D. The 1945 Agreement.

E. The Revolutionary Aims of the Communist Party.




A. The Persons Involved. The indictment charged a single conspiracy embracing the eight defendants, divers persons whose names were unknown to the Grand Jury, and some identified coconspirators: Andrew Onda, Betty Gannett, Joseph Roberts, William Z. Foster, Benjamin David, Edgene Dennis, John Gates, Gilbert Green, Gus Hall, Irving Potash, Jacob Stachel, Robert Thompson, John Williamson, Henry Winston, and Carl Winter. The role of these various defendants and named coconspirators can be appreciated only against the background of the Party hierarchy. Actually two hierarchies were involved, one state and one national, with the former responsible to the latter. By and large the defendants were involved in the state hierarchy, and the named coconspirators were involved in the national structure.Both state and national groups were overhauled in 1945 when they changed their name from political associations to parts of the Communist party; this event is the commencement of the conspiracy charged in the indictment.

The highest body in the reconstituted national party was the National Convention, but it met only briefly at scattered intervals. Between conventions the leadership groups, in descending order of importance, were the National Secretariat, the National Board, and the National Committee. Attached to them were various special organizations and boards. The only defendant who ever held a national post was the appellant Stone, who was a member of the New Jersey Delegation to the National Convention of 1948, an alternate member of the National Committee in 1951, and a member of the National Committee in 1953. Most of the named coconspirators held high national offices.Foster, Dennis, Davis, Gates, Green, Hall, Potash, Stachel, Thompson, Williamson, Winston, and Winter, according to testimony, were members of the National Board elected at the critical 1945 Convention.They were all indicted for violating the Smith Act and were convicted, with the exception of Foster, who was too ill to stand trial, in the original Dennis case in 1949, which was affirmed, United States v. Dennis, 2 Cir., 183 F.2d 201, and thereafter by the Supreme Court, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137. These Dennis case leaders and coconspirator Elizabeth Gurley Flynn were elected to the National Committee at the same convention. Flynn's conviction in 1952 for violating the Smith Act by conspiring with the Dennis case conspirators was affirmed in United States v. Flynn, 2 Cir., 216 F.2d 354, certiorari denied Flynn v. United States, 348 U.S. 909, 75 S. Ct. 295, 99 L. Ed. 713.

Coconspirator Onda was a delegate to the 1945 National Convention, where he represented the Communist Political Association in Connecticut. Coconspirator Gannett was the Assistant Organizational Secretary to the national organizational director of the Party from 1945 until at least 1950. Coconspirator Roberts was business manager of the publication The Daily Worker in 1947.

The Communist Party of the State of Connecticut was organized in the same fashion, with a secretariat, board, committee, and convention. The only named coconspirators active in it were Onda and Roberts. The former was the top leader of the State Party in 1945 and the latter was a District Organizer in Connecticut. Appellant Taylor (Silverman) was State Secretary from 1945 to 1950, when he became State Chairman - a post he held at the time the indictment was returned. Appellant Ekins became State Secretary in 1950 and held that post until 1954. Appellant Goldring was a member of the State Committee at various times from 1946 through 1954, was State Financial Secretary, Treasurer, and Press Director in 1949, and was State Executive Secretary in 1954. Taylor, Ekins, and Goldring were members of the State "concealed Board." Appellant Dimow held local offices in Connecticut from 1946 to 1949 and was a member of the State Committee in 1953 and 1954.

The interconnection of the state and national officers is an important question of proof, and we shall discuss it below in that context. But the evidence of connection must be noted here, too, in defining the issue presented by the charges. As the evidence developed, the national leaders were shown to have supervised operations within the state apparatus; and various persons in the conspiracy on the national level were shown to have met other persons involved in Connecticut affairs. Thus appellant Stone, although on the national level, met appellant Taylor, a state level leader, at several meetings in Connecticut in 1952 and 1953. Stone directed the concealed activities of the Connecticut Party at a time when appellants Taylor, Ekins, and Goldring were members of a concealed State Board. Coconspirator Gannett, in the national hierarchy, appeared at a state party meeting sponsored by appellant Taylor; and a former Connecticut State Chairman served at one time as Gannett's assistant. To take one out of innumerable instances in the record of liaison between state and national organization, nat Ross from the National Office of the Party spoke once at a State Seminar in praise of the work of Joseph Stalin. The record contains scores of names of persons who held office or taught classes for the Party between 1930 and 1955 in various parts of the United States; and the jury was invited to believe that they, too, were part of the same single national conspiracy in which the defendants engaged between 1952 and 1955.

The Government's contention was that the defendants were "after-joiners" who either joined the Party after it was reconstituted or remained in it after learning the significance of its reorganizations.*fn3 None of the defendants participated in the 1945 reorganization of the national party, although most of the identified coconspirators were at that convention. The only defendant to participate in the Connecticut reorganization was appellant Goldring, who attended the 1945 State Convention which approved the decision of the national group and emulated it. Appellant Dimow joined the Party in 1946; the other appellants had been members of the Party long before the 1945 reorganization: Stone since 1933; Ekins since 1937; Taylor since 1939; and Goldring since 1941.

Normally a conspiracy indictment need not fail if proof is lacking to implicate some of the defendants or coconspirators charged. See, e.g., United States v. Cioffi, 2 Cir., 242 F.2d 473, 475, certiorari denied Cioffi v. United States, 353 U.S. 975, 77 S. Ct. 1060, 1 L. Ed. 2d 1137. Under the circumstances here, however, a reversal would be necessary if the prosecution failed to prove its charge that the appellants were in league with the top echelon Communist party leaders convicted in the Dennis case. By linking the defendants with such notorious persons serious harm was done to their chances of acquittal. Whole volumes of highly inflammatory testimony about persons whom the defendants had never met were admitted into evidence on the Government's representation that these other persons would be shown to be coconspirators. Thus the statements, deeds, and aims of the top echelon national leaders were paraded before the jury; and Government witness John Lautner's career in other parts of the country between 1929 and 1950 was traced in detail - all on the assumption that these facts were relevant to a huge national conspiracy in which the Dennis case leaders were the hub, and the Connecticut state hierarchy one of many identical spokes. These lines of testimony were neither brief nor merely cumulative nor easily forgotten. Hence the conviction cannot stand without a showing that the defendants and at least some of the persons involved in the Dennis case were part of the same conspiracy. Yates v. United States, supra, 354 U.S. 298, 77 S. Ct. 1064, 1 L. Ed. 2d 1356; Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557.

B. The Aim of the Conspiracy. We seek to define the precise aim of the conspiracy charged by the Grand Jury, mindful of the Supreme Court's recent warning that it "will view with disfavor attempts to broaden the already pervasive and wide-sweeping nets of conspiracy prosecutions" by loose definition of conspirators' goals. Grunewald v. United States, 353 U.S. 391, 77 S. Ct. 963, 974, 1 L. Ed. 2d 931. The indictment alleges an agreement to utter the kind of dangerous speech prohibited by the Smith Act. We mention this obvious fact because of the ease with which this crime may be accidentally confused with the superficially similar offense of conspiring to overthrow the Government by force and violence. The latter is forbidden by 18 U.S.C. §§ 2383 and 2384; the present indictment concerns the Smith Act, 18 U.S.C. § 2385. In this case it would not be enough to show that the defendants were serious revolutionaries who plotted to take part in a bloody insurrection; there must be a further showing of illegal speech. It is the speech element which distinguishes the Smith Act from other criminal controls on subversive activities and which has caused the Supreme Court to narrow the statutory language to avoid a construction which would violate the First Amendment. Turning then to the Smith Act, as most recently construed by the Supreme Court, it appears that there must be proof of a plan to use language reasonably calculated to incite the audience to use violence against the Government of the United States, either immediately or in the future. Yates v. United States, supra, 77 S. Ct. 1064.

This case, like Dennis and Yates, "[involves] advocacy which [has] already taken place, and not advocacy still to occur." 77 S. Ct. 1064, 1079. The Government makes no claim of "a conspiracy to engage in advocacy in the future." 77 S. Ct. at page 1080. Its position is that the conspirators actually advocated insurrection in language of the sort condemned by Yates from 1945 until the indictment in 1955. Since the statute of limitations bars prosecution for events prior to March 4, 1952, there must ultimately be proof of criminal speech after that date. To summarize, there must be proof of three things: (1) utterances after March 4, 1952; (2) that the utterances were illegal under the standard of the Yates case; (3) that they were uttered pursuant to an understanding between the appellants and some of the persons convicted in the Dennis case.


Before discussing particular items of evidence we shall explain the manner in which we think Yates v. United States, supra, 77 S. Ct. 1064, bears on this issue.After that decision was announced we requested counsel to submit further briefs to indicate the effect of the decision on the present appeal. In complying, counsel have quoted to us extracts from the Yates record and the Government's brief in Yates, and they suggest a point-by-point comparison of the facts in Yates with the present facts. For at least two reasons we are constrained to reject this approach. First, the standard of sufficiency of the evidence applied by the Supreme Court to determine whether convictions reversed for an erroneous jury charge should lead to retrial or acquittal is not the same as the criterion we are required to apply here: "In judging the record by these criteria we do not apply to these cases the rigorous standards of review which, for example, the Court of Appeals would be required to apply in reviewing the evidence if any of these petitioners are convicted upon a retrial. Compare Dennis v. United States, supra, 341 U.S. at page 516, 71 S. Ct. at page 870. Rather, we have scrutinized the record to see whether there are individuals as to whom acquittal is unequivocally demanded." Yates v. United States, supra, 77 S. Ct. 1064, 1081, 1082. Our present task is to apply the "rigorous standards of review" mentioned in Yates with "the scrupulous care" required by Dennis [341 U.S. 494, 71 S. Ct. 871]. The issue of retrial or dismissal is a matter for separate consideration hereafter.

Second, in determining whether or not the present record supports the immediate charge, we see no advantage to be gained by proceeding indirectly and considering whether this record is "weaker" or "stronger" than that in Yates. Such efforts to carry stare decisis into the realm of unique patterns of fact are difficult in the briefest cases and impossible here where the record below ran over 9,200 pages and the Yates record was half again as large. Each case is sufficiently distinct. So that such analyses are misleading and unhelpful.We shall proceed directly, examining the present evidence and comparing it with the charge which we have previously analyzed.

A. Evidence Concerning the Years 1952-1955. We resolve all issues of credibility in favor of the prosecution and draw all inferences in its favor. Even so, the single, most remarkable fact in the record is that there is no example of revolutionary advocacy of either the legal or illegal sort during the period covered by the indictment.This conspicuous failure of proof has added significance because in this period at least three Government informers who testified at the trial were in the Party in Connecticut. One of them was on the concealed State Board. They reported at the trial every possible colorable act or deed done by the defendants and their coconspirators, but no colorable behavior occurred in the critical period.

The closest approaches to advocacy which the witnesses reported in this period were two statements by persons apparently unauthorized to speak for the conspiracy. One Joe Holden, who was present at a meeting of the State Negro Commission, but who was not identified as having any position in the Party, was reported to have said that soon there would be a depression and then the Socialist revolution they all wanted. He was promptly told by the chairman of the meeting "to be careful how he expressed himself in these days." The trial judge originally admitted the hearsay, but then vacated his ruling and left it that, if additional evidence appeared that Holden was a coconspirator, the court would then consider whether to admit it or to strike it. No additional evidence appeared. One Josephine Willard, a member of the Bridgeport City Committee, was reportedly called to recite as a pupil at an educational class on the subject of the Party's attitude toward colonialism; she remarked that "the Communists would support the masses of people in any country who were revolting to throw off the yoke of the capitalists and assist these people in establishing a democratic form of government." There was a total dearth of evidence that the Marxist classics were read, discussed, or disseminated during this critical period. This is the strongest possible proof that no such advocacy in fact occurred - that witnesses in a perfect position to observe could find nothing to report.

The Government witnesses admitted that during these years the defendants and their coconspirators were engaged in political advocacy, both within the ranks of the Party and to outsiders. The propaganda they distributed consistently decried violence and supported conventional goals of economic change and social reform. The jury, in order to convict, was asked to find that the legal advocacy was only a blind and that, unobserved by the FBI agents in their midst, the defendants used forbidden language. Three lines of circumstantial evidence were presented to support this somewhat strained inference. First, the conspirators allegedly engaged in such concerted and repeated illegal advocacy in the period shortly after the formation of the conspiracy in 1945 that the jury could infer continuation of such advocacy after March 1952. This approach is allegedly supported by examples of illegal oral remarks and the teaching of illegal written texts prior to 1952. Second, an agreement to advocate the use of force was allegedly reached between the Connecticut and national leaders at the 1945 reconstituting convention. And third, there was an alleged conspiracy to overthrow the Government in the future, from which the jury could infer a conspiracy to advocate such overthrow presently.

B. Oral Advocacy before 1952. We find it necessary to discuss in somewhat lengthy detail the incidents culled from the record by Government counsel as examples of defendants' illegal oral advocacy of the use of force to overthrow the Government of the United States, for in our opinion they are the heart of the case.

Quoted as the strongest single example is the testimony that appellant Stone, while an officer in the New Jersey Communist Party in 1946, attended a social gathering at which she discussed communism with a non-Communist union steward. Asked how far the Party would go in this country to obtain their objectives, Stone replied, "Frankly, Amie, if necessary we'll have bloodshed." This was in the presence of a person introduced as the President of the Communist party in New Jersey. Subsequently Stone attempted to recruit the union Steward into the Communist party. Stone's statement, uncontradicted by the leading New Jersey Communist, could be considered authorized by the New Jersey Party; and, in view of the uniformity of policy maintained within the state and national groups, it could also be found authorized by the national leaders of the Party.But the steward was not being urged to bloodshed, but only being asked to join a group which would take such dire steps "if necessary." This is a far cry from advocating and teaching the duty and necessity of overthrowing the Government of the United States, which is the crime charged in the indictment.

The second most damning statement was probably that of appellant Goldring to the Government witness Gay in the latter part of 1946. Goldring and Gay were state and local officers in the Communist party in Connecticut at that time; and both worked in the same section in the General Electric plant, meeting daily during rest hours, lunch, or regular working hours. On one occasion they were discussing Marxist-Leninist theory, and Goldring expressed himself thus:

"He stated to me that the Communism in the United States could never be achieved through the use of the ballot; that the capitalistic system would never give up without a struggle, and that he agreed with the Marxist-Leninist theory that Communism would be achieved either through an internal revolution or through the conversion of the imperialist war into one of a revolutionary nature. * * *

"He stated that the Communist Party would be the leader, in the leadership in the changing of the character of an imperialist war."

Here again the statement is good proof of the specific intent of Goldring, but it is not an example of incitement. The speaker was expressing his personal prognostication as to the way communism would be achieved; he was not trying to convince ...

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