Before CLARK, Chief Judge, and PICKETT and MOORE, Circuit Judges.
Following the affirmance by the United States Supreme Court of the conviction of the national leaders of the Communist Party in the United States of a conspiracy to violate the Smith Act*fn1 (Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 861, 95 L. Ed. 1137), the government embarked upon a nationwide program of prosecutions against the lesser lights of the Communist movement.*fn2 The indictments in these subsequent cases were substantially identical, and in those which were tried, the evidence followed the same pattern. This appeal concerns one of those cases in which the appellants were convicted in the Southern District of New York.
The indictment was returned on June 21, 1951, wherein it was charged that from April 1, 1945, and continuously thereafter up to and including the date of the filing of the indictment, the defendants conspired with each other and with those named as defendants in the Dennis case, "to advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence," and to organize as the Communist Party of the United States, a society, group and assembly of persons to teach and advocate the overthrow and destruction of the government of the United States by force and violence.*fn3 That portion of the indictment having reference to the organization of the Communist Party was stricken by motion, and the case went to trial upon the issue that the defendants advocated and taught the duty and necessity of overthrowing and destroying the government of the United States by force and violence.
Subsequent to the trial of the case, the Supreme Court considered a Smith Act conviction on an indictment and evidence similar to that of this case. Yates v. United States, 354 U.S. 298, 77 S. Ct. 1064, 1 L. Ed. 2d 1356. There it was held that the Smith Act requires more than the teaching or advocacy of an abstract doctrine that the government should be overthrown by force and violence. The Court said that it must be clear in some fashion that the teaching and advocacy was directed to some sort of action, not merely to the belief in some abstract doctrine. In distinguishing this extremely narrow difference between the advocacy or teaching which constitutes a violation and that which does not, the Supreme Court said: "The essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely believe in something" (354 U.S. 324, 325, 77 S. Ct. 1080). Summed up, the Court held that the Smith Act does not denounce advocacy or teaching in the sense of abstractly preaching the propriety and desirability of the forcible overthrow of the government, but reaches only an advocacy or teaching of action to accomplish such overthrow by force and violence.
A number of trial court errors have been assigned, but we shall consider only the sufficiency of evidence to sustain the conviction. Although the case was tried before the Yates decision, the United States urges that the evidence meets the "call to action" test. It is argued that the fundamental principle of Marxism-Leninism, as shown by the evidence, is that its goal of governmental overthrow can be achieved only by the use of force or violence; that the very purpose of the 1945 reconstitution of the Communist Party in the United States was to restore the party to the Marxist-Leninist concept of governmental change by the employment and use of force and violence;*fn4 that this overthrow was to be accomplished by education and teaching of the Marxist-Leninist doctrine through Communist schools, literature, and other means; that the very heart of this doctrine contemplates governmental overthrow by force and violence; that the party teachings concentrate attention on the problem of determining the proper time and manner of preparing members and others for participation in violent revolution; and that all of this was reiterated and re-emphasized in speech, in Communist literature, and in their classrooms.
This Court had occasion to consider and reject these contentions in United States v. Silverman, 2 Cir., 248 F.2d 671, certiorari denied 355 U.S. 942, 78 S. Ct. 427, 2 L. Ed. 2d 422. The implication of the government's argument is that the evidence here meets the requirements of the Dennis and Yates cases, and that Silverman should not be followed. In the Silverman case the Court discussed the evidence in detail and concluded that it did not measure up to the "call to action" test of the Yates case, and that the record indicated that the United States could not do better on a second trial, and therefore directed a dismissal of the indictment.*fn5
We accept and apply the law of the Silverman case to the facts of this case. No useful purpose would be served by a further reference to the evidence, by a reiteration of the principles announced in Silverman,*fn6 or by further examination and discussion of the classics and commentaries on the Marxist-Leninist theory of government.
The Court desires to express its appreciation to Professor Boris I. Bittker, of the Yale Law School, and his associates, assigned to represent certain of the indigent defendants. In carrying on the tradition of the legal profession, this burdensome task was assumed with the only compensation being the satisfaction of assisting in the administration of justice.
Judgment reversed and remanded with instructions to dismiss the indictment.
MOORE, Circuit Judge (concurring).
I concur except I would remand for a ...