110. Federal conspiracy indictments—Smith Act
||Yates, et al. v. U. S.
(U.S.S.C.) 14 Defs. convicted after jury trial; bail doubled to $20,000 pending appeal. Issues: constitutionality of Smith Act; scope of First Amdt. rights; change in statute (since decision in Dennis v. U. S., 341 U. S. 494) making general conspiracy provision (18 USC 371) applicable in Smith Act cases, requiring proof of overt acts; Trial Ct. did not follow Dennis case instruction requiring proof of agreement to use language of incitement; ct. ruled that finding of "clear and present danger" in Dennis case was applicable in all future Smith Act cases till reversed by U. S. Sup. Ct.; trial ct. rejected defense offer of record in Schneiderman v. U. S. (320 U. S. 118), (Schneiderman being a def. in Yates et al.), as immaterial. Ct. of App. affirmed March 17, 1955, petition for rehearing denied. 3 separate petitions for cert. filed Aug. 11, 1955 in U.S.S.C.
Augustin Donovan, Esq., Bank of America Bldg., Oakland; Robert W. Kenny, Esq., 250 N. Hope St., Los Angeles, and Benjamin Dreyfus, Esq., 57 Post St., San Francisco; Norman Leonard, Esq., 240 Montgomery St., San Francisco, Ben Margolis and Leo Branton, Esqs., 112-W. 9th, Los Angeles, Alexander H. Schullman, Esq., 417 S. Hill, Los Angeles, A. L. Wirin, Esq., 257 S. Spring, Los Angeles.
||Fujimoto, et al. v. U. S.
(CA 9.) 7 Defs. convicted after jury trial. 5 yrs. and $5,000. Out on $15,000 bail. Now on appeal. Briefs already filed.
Richard Gladstein, Esq., 240 Montgomery St., San Francisco; Bouslog, King and Symonds, Esqs., 63 Merchant St., Honolulu, T. H.; A. L. Wirin, Esq., 257 S. Spring, Los Angeles.
And see Bouslog (560.2), Gladstein (560.1).
||Wellman et al. v. U. S.
(CA 6.) 6 appellants convicted after jury trial. Sentences Feb. 28, 1954 ranged 4-5 yrs. and $10,000 fines. Argument before Ct. of App. Feb. 17, 1955. Post-argument brief raises issues: Exen if "Marxist" books advocated violent overthrow, sole question was whether defs. themselves so interpreted them, on which no probative evidence was offered: Trial judge charged Communist Political Assn. in 1944-45 did not advocate violent overthrow though it taught from same books used in period covered by indictment, and USSC in Schneiderman (320 U.S. 118) decided these books advocated peaceful change; no proof that defs. knew they were adopting "force and violence" program as testified by Gov't W John Lautner when Comm. Party expressly disavowed such doctrines in 1945; prejudice resulted from permitting "organizing" section of indictment to remain in case because Trial Ct. permitted vast amount of "inflammatory evidence" in as "background" which couldn't have been admitted if "organizing" charge had been stricken. Decision awaited.
Ernest Goodman, Esq., 3220 Cadillac Tower, Detroit 26, Mich.
||Huff, et al. v. U. S.
(CA 9, #14320.) 4 defs. convicted W. Dist. Wash. Sentences: 5 yrs. plus 3-yr. contempt sentences for 2 Defs. Fine: $1000-$5000. Appeal pending, reply brief filed April 18. Probably will not be calendered in CA 9 until action by U.S.S.C. in Yates (110.1).
John Caughlan, Esq., 702 Lowman Bldg., Seattle 4, Wash.; Irvin Goodman, Esq., Portland Trust Bldg., Portland, Ore.
||U. S. v. Mesarosh, et al.
(CA 3, #11,169-11,173.) 5 Defs. convicted after trial by jury; 5 yr. sentences; CA 3 affirmed 6/13/55 (5-2). Majority followed Dennis and Flynn (110.11). Defs.' challenge to jury overruled (see companion case, Dow (522.1)). Dissent by Hastie, J. (joined by Maris, J.): Defs. indicted and convicted "for conspiracy to engage in dangerous talk and indoctrination, and nothing more than that." Such conduct, in the absence of showing that it is "calculated to incite men to violence as soon as circumstances will permit" . . . "is the very sort of thing the 1st Amendment removes from Congressional power to proscribe."
Frank J. Donner, Esq., 342 Madison Ave., NYC, Ralph E. Powe, Esq., 700 Macon St., Brooklyn; Thomas D. McBride, Esq., 1529 Walnut St., Philadelphia.
||Sentner, et al. v. U. S.
(CA 8.) 5 Defs. convicted after jury trial May, 1954. Sentences: one 3 yrs., others 5 yrs., no fines. CA 8 denied petitions to appeal in forma pauperis; govt. argued since Defs. able to have bail posted of $100,000 ($20,000 ea.), not paupers, despite affidavits to contrary. Pet. for cert. (in forma pauperis) in U.S.S.C. granted; CA reversed. Defs. allowed to appeal in forma pauperis. (348 U. S. 935.) Briefs being prepared, argument in fall. Issues: 1) Constitutional issues in all Smith Act cases; 2) deprivation of right to counsel because of presence of gov't informer at consultation between Def. and her atty. during trial; 3) right to production reports of gov't informers; 4) right to subpoena evidence for defense.
Sydney L. Berger, Esq., 7 Koenig Bldg., Evansville 8, Ind.; R. L. Witherspoon, Esq., 1518 N. Sarah St., St. Louis, Mo.; Mary Kaufman, Esq., 201 W. 85th, NYC.
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||U. S. v. Kuzma, et al.
(ED Pa., #17418.) 9 defs. convicted after jury trial 8/13/54 before Judge Ganey. Motion for bail pending disposition of motion for new trial granted by CA 3. Motion for new trial denied 6/15/55. 4 Defs. sentenced to 3 yrs., 5 to 2 yrs., 6/20/55. To be appealed.
Thomas D. McBride, Esq., 2015 Land Title Bldg. and Joseph S. Lord, III, Esq., 121 South Broad St., Chief Counsel; David Cohen, Esq., 612 Market St., Nat'l Bank Bldg.; Joseph N. DuBarry, IV., Esq., 1421 Chestnut St.; Benjamin H. Read, Esq., 1617 Land Title Bldg.; Robert W. Sayre, Esq., 2301 Packard Bldg.; William J. Woolston, Esq., 1529 Walnut St.; John R. Carroll, Esq., 631 Land Title Bldg.; Charles C. Hileman, 3rd, Esq., 1719 Packard Bldg.; Henry W. Sawyer, III, Esq., 117 South 17th St.; Edmund B. Spaeth, Jr., Esq., 1000 Provident Trust Bldg.; all of Phila., Pa.
||U. S. v. Bary, et al.
(DC—Colo.) 7 indicted; application for reduction of bail referred to entire Sup. Ct. by Clark, J.; denied Jan. 10, 1955 (75 S. Ct. 310). Two principal defense motions: (1) grand jury improperly selected (see 523.); (2) first case brought to trial since passage of Communist Control Act of 1954: Defs., in attempting their defense from Smith Act charges, will make themselves liable for prosecution under 1954 Act. Trial began March 21; ended late May, 1955. All Defs. convicted. Motion for mistrial denied. Sentencing June 15. On appeal to CA 5. William Alan Bryans, III, Esq., 1044 G. & E. Bldg.; Robert H. Harry, Esq., 810 1st Nat'l Bk. Bldg.; John L. Ferguson, Esq., 222 Equitable Bldg.; William V. Hodges, Esq., 947 Equitable Bldg.; Robert E. More, Esq., 1210 1st Nat'l Bk. Bldg.; William B. Naugle, Esq., 802 Midland Savings Bldg.; Forrest C. O'Dell, Esq., 421 Symes Bldg.; Luis D. Rovira, Esq., 1300 Telephone Bldg.; John Shafroth, Esq., 730 Equitable Bldg.; Arthur K. Underwood, Jr., Esq., 320 Equitable Bldg.; Jay W. Tracey, Jr., Esq., 520 Equitable Bldg.; all of Denver, Colo., and Mary Kaufman, Esq., 201 W. 85th St., NYC.
||U. S. v. Brandt, et al.
(ND ED Ohio, #21706.) 11 defs. indicted Oct., 1953. Jury challenge and pre-trial motions overruled by Trial Judge McNamee, who granted extension to give Def. Hashmall (580.1) time to prepare defense, and appointed 7 defense counsel. Trial date: Oct. 29, 1955.
Martin A. McCormack, Engineers Bldg., George Farr, Jr., 1857 Union Commerce Bldg., Fred Mandel, Standard Bldg., Wm. J. McDermott, Williamson Bldg., Warren Briggs, Park Bldg., Ralph Rudd, Natl. City Bank Bldg., Wm. K. Gardner, Union Commerce Bldg., Esqs., all of Cleveland; Yetta Land, Esq., Phoenix, Ariz.; Hymen Schlesinger, Esq., 808 Renshaw Bldg., Pittsburgh; Reuben Terris, Esq., 150 Nassau, NYC.
||U. S. v. Silverman, et al.
(DC Conn.) The original indictment returned against 7 defs. June, 1954; dismissed Feb., 1955 because grand jury had been selected improperly. New indictment returned against same 7 plus Martha Stone, March, 1955. Defense motions on new indictments filed April 12, 1955. May 31, 1955: Argument on motions to dismiss indictments and to stay proceedings because of passage of Communist Control Act of 1954; motion denied. Trial date: Oct. 14.
Marvin D. Karp, Esq., 111 Pearl St., Hartford; Catherine G. Roraback, Esq., 185 Church St., New Haven, and Samuel Gruber, Esq., 1 Bank St., Stamford, Conn.; Frank Donner, Esq., 342 Madison Ave., NYC.
||Flynn, et al. v. U. S.
(SD NY #252) (103 F. Supp. 925, 106 F. Supp. 966, 190 F. 2d 672, 216 F. 2d 354, c.d. 75 S. Ct. 295, see 285 and 436.) April 26, 1955: Federal Judge Dimock granted defense motion for new trials for defs. Trachtenberg and Charney (convicted with 11 others in 1952), because Gov't witness Harvey Matusow had given perjured testimony against them (see 545.2). May 27, 1955: Judge Dimock denied def. motions to acquit these 2 defs. (see 110.12) and denied motion for rehearing of motion for new trial for 11 other defs.
On motions: Harry Sacher, Esq., 342 Madison Ave., NYC.
||U. S. v. Stein, Charney, Trachtenberg, et al.
(SD NY.) Retrial of 2 defs. in Flynn (110.11) and 2 others for conspiracy under Smith Act. Application for reduction of $50,000 bail for Def. Stein denied. Case awaiting trial date.
Reuben Terris, Esq., 150 Nassau, Newman Levy, Esq., 55 Liberty, Mary Kaufman, Esq., 201 W. 85th, all of NYC; Vincent Hallinan, Esq., 345 Franklin, San Francisco.
||U. S. v. Santos Rivera et al.
(U.S.D.C., Puerto Rico.) 11 Defs. arrested 10/20/54 in P.R., Mexico, and U.S. Bail $10,000-20,000; two Defs. still imprisoned ($12,000, $20,000); others held up to 10 months. Denial of motions to reduce bail on appeal. (CA-1.) Among motions now filed, not yet argued: (1) to quash because rule that Grand Jurors read, write English bars majority of population esp. workers, poorer sections; (2) to dismiss because Commonwealth status of P.R. affects applicability of Smith Act and jurisdiction of Court; (3) to change requirement that all trial proceedings be in English when several Defs. don't understand that language.
Ramon H. Vargas, Esq., Box 1522, San Juan, Puerto Rico; Prof. Santos Amadeo, Law School, Univ. of San Juan, Rio Piedras, P.R.; Perez Marchand, Marcos Ramirez, Arturo Ortiz Toro, Carlos J. Faure, Tomas I. Nido, Manuel Cruz Horte, and Jose Manuel, Ramos, Barroso, Esqs., all of San Juan, Puerto Rico.
||People of Puerto Rico v. Reynolds, et al.
(Puerto Rico Sup. Ct., #15456) (Puerto Rican statute copied after U.S. Smith Act.) 4 defs. arrested after outbreak by Nationalist Party against U.S. gov't Oct. 30, 1950. Jury acquitted on one count, convicted of advocating overthrow of gov't by force and violence for having taken oath at Nationalist Party meeting pledging support to independence movement; sentence: 6 yrs. Puerto Rico Sup. Ct. reversed Nov. 17, 1954 on ground taking oath was part of freedom of expression and was not advocating violence to overthrow the gov't.
Conrad J. Lynn, Esq., 141 Broadway, NYC; A.C.L.U. filed amicus brief in P. R. Sup. Ct.