Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.
These are appeals from judgments of conviction entered against the appellants, Stephen Mesarosh (also known as Steve Nelson), William Albertson, Benjamin Lowell Careathers, James Hulse Dolsen, and Irving Weissman, after a jury had found them guilty of conspiring to unlawfully, wilfully and knowingly advocate and teach 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.*fn1
The appellants raise numerous objections to the judgments of conviction. Some of the objections are similar to those passed upon by other federal courts in cases commonly known as Smith Act cases.*fn2 Other objections are unique to this Smith Act prosecution, though by no means novel to the law. For reasons which follow, we have concluded after examination of the alleged errors that the judgments of conviction should be affirmed.
First, the appellants contend that the question of guilt should not have been submitted to the jury because sufficient evidence of certain essential elements in the prosecution's case was lacking. Specifically, it is urged that the evidence did not warrant jury conclusions that an agreement for illegal purposes existed among the appellants, nor that each appellant possessed the necessary illegal intent.
The government contended that the appellants as national, district, and state functionaries of the Communist Party agreed to teach and advocate the Marxist-Leninist doctrines, which doctrines, according to the government, called for the violent and forceful overthrow of the government as speedily as circumstances would permit. Certainly, there was sufficient evidence that the purpose of the reconstituted Communist Party in 1945 was to return to the fundamental principles of Marxism-Leninism. So much was admitted by one of the defense witnesses. Whether the agreement to teach Marxism-Leninism was in fact an agreement to teach the violent and forceful overthrow of the government was the point in issue, and on this the evidence was more than sufficient.
A former Communist Party functionary on the national and state levels testified that a return to the fundamental principles of Marxism-Leninism really meant a return to teaching and advocating the forceful and violent overthrow of the government. The prosecution introduced numerous passages from pamphlets and books used by the Communist Party to show that the fundamental principles of Marxism-Leninism included as a sine qua non to the proletarian revolution a forceful and violent overthrow of the United States Government. It is to be emphasized that the pamphlets and books introduced by the prosecution were not found in the ancient relic room of some public library. They were documents being used and distributed by Party members, including appellants, for instruction in Party classes. In addition, witnesses testified to declarations and Party classroom instructions by the defendants and others which supported the view that their advocacy of Marxism-Leninism included the violent overthrow of the government.
The evidence showed that the Marxist-Leninist doctrines considered certain principles of organization and action essential before a Party could hope to be successful in staging the proletarian revolution by force and violence. It was shown that the Communist Party of the United States utilized these basic techniques and principles. Democratic centralism by which strict discipline was maintained among Party members was the cornerstone of Party organization. The Party concentrated much of its activity among workers in key industries. Plans for underground operations by the Party were prepared and steps taken to implement such plans. The appellants would have us believe that these elements are really innocent of any connection with overthrow of the government by force and violence. But there was evidence that the laying of this groundwork was considered in Party literature as essential to successful forceful overthrow. The jury was quite justified in finding that, as the alleged Party conspirators were actively participating in the group which implemented and gave effect to these very teachings, their purpose and intent was actually the forceful overthrow of the government, rather than the academic discussion of devitalized Communist principles.
Ample evidence likewise existed to establish the necessary intent of each appellant.The appellants all held positions of rank in the Party at national, state, or district levels, and the testimony presented showed them to be most active leaders, instructors, and organizers, at times on practically a full-time basis in Party activities.
Evidence of these numerous roles as active Party leaders without more would have been sufficient to attribute to each defendant a full knowledge of the Party's purpose to bring about the forceful and violent overthrow of the government. But, in addition, as to each appellant there was evidence of declarations that would sustain a conclusion that they believed and taught that violent revolution was necessary to effect their purposes. At least three of them were quoted as declaring that force and violence were necessary to achieve success. Another in 1950 declared that the Communist Party gained control of youth in the Soviet Union before being able to wage the successful revolution of 1917, and so the Party had to gain control of youth in the United States in order to wage a successful struggle. The fifth spoke of the necessity of sabotage and its use to knock out specific key plants when the time came. These various declarations, combined with appellants' Party activity, more than sufficed as evidence of each appellant's illegal intent. They were not convicted because of membership or the holding of Party office per se, so that there was no violation of Section 4(f) of the Subversive Activities Control Act of 1950, 50 U.S.C.A. § 783(f). Their guilt was shown to be personal and individual and not imputed merely on the basis of associations, membership, or official title. What was said by Judge Harlan (now Justice Harlan) in United States v. Flynn, 2 Cir., 1954, 216 F.2d 354, 360, is applicable to this case:
"It is indeed true, as the appellants assert, that under criminal statutes involving proof of a specific intent a person may not be convicted simply on the basis of an 'imputed' intent. He himself must be shown to have had the requisite intent. But it does not follow from this that proof of such an intent is limited to that particular person's own acts and declarations, whether the prosecution be for a substantive crime or for the crime of conspiracy. For, as Justice Jackson said in Cramer v. United States, 1945, 325 U.S. 1, 32-33, 65 S. Ct. 918, 934 [89 L. Ed. 1441]: 'Actions of the accused are set in time and place in many relationships. Environment illuminates the meaning of acts, as context does that of words. What a man is up to may be clear from considering his bare acts by themselves; often it is made clear when we know the reciprocity and sequence of his acts with those of others, the interchange between him and another, the give and take of the situation.' So here, the relationships of the defendants and of others acting in concert with them; one with another, the defendants' positions of responsibility in the Communist Party, their activities in carrying forward the objectives of the party, and the nature of those objectives were all matters properly to be considered upon the 'intent' of any particular defendant. And the declarations of other co-conspirators, in furtherance of the conspiracy and within its purview, stand on no different footing. To permit such declarations to be considered on the issue of the 'intent' of a particular defendant, a prima facie case of conspiracy among the appellants and others having been made out, was not to impute to such defendant the intent of others, but was simply to include such declarations among the circumstances which the jury might consider in determining the individual intent of that particular defendant. This was entirely proper. 'Intent' as well as any other element of a crime may be proved by circumstantial evidence. United States v. Pierce, D.C.1917, 245 F. 878, affirmed, 1920, 252 U.S. 239, 40 S. Ct. 205, 64 L. Ed. 542; Nosowitz v. United States, 2 Cir., 1922, 282 F. 575. And the rule admitting acts and declarations of co-conspirators in furtherance of the conspiracy against all defendants applies equally to motive and intent as to other issues. See Wiborg v. United States, 1896, 163 U.S. 632, 658, 16 S. Ct. 1127, 1197, 41 L. Ed. 289; Pinkerton v. United States, 1946, 328 U.S. 640, 647, 66 S. Ct. 1180, 90 L. Ed. 1489."
Though some of the declarations were pre-1945, the evidence was none-theless relevant and significant as to intent. Acts and declarations by appellants prior to the indictment period were significant in determining intent. See United States v. Dennis, 183 F.2d at page 231.
In discussing the sufficiency of the evidence, we have assumed that all evidence was properly before the jury. Appellants, however, contend that certain evidence should not have been admitted.
The indictment charged that on or about April 1, 1945, and thereafter the appellants, along with other named individuals and divers other persons unknown, conspired to teach and advocate the violent and forceful overthrow of the United States Government, and that as part of said conspiracy the appellants and co-conspirators were to become members, officers and functionaries of the Communist Party knowing the purpose of the Party and were to assume responsibility for carrying out its plans and activities. The appellants use the 1945 date as the split-off point for their objections.
Certain evidence of acts and declarations prior to 1945 was admitted against all appellants to show the illegal purposes of the Communist Party. The purposes of the Party prior to 1945 were considered relevant on the basis that the aims and purposes of the Party prior to 1945 were the same as the post-1945 period. Accordingly, the judge charged the jury, "At this point I instruct you that if you are not satisfied with the proof that the aims and objectives of the Communist Party after July, 1945, were the same as before 1944, then you should disregard all the evidence having to do with facts and events which took place before 1944, and the declarations and statements which were made by alleged co-conspirators before 1944, and decide the case on the evidence dealing with facts which occurred after April 1, 1945. In this event, you may, however, consider the acts done and statements made by each defendant prior to 1945 as bearing and reflecting solely upon the intent of that defendant, if you find he became or remained a member of the alleged conspiracy after April, 1945, with knowledge of the alleged criminal purposes of the conspiracy."
The evidence of identity of Party purposes before 1945 with the purposes after 1945 was relevant because there was sufficient evidence for the jury to conclude that the conspiracy charged in the indictment was an uninterrupted continuation of a conspiracy which had been in existence for some time. Indeed, this identity of purposes and teachings, along with the fact that many of the same individuals were active and influential in both the pre-1945 Party and the reconstituted Party after 1945, was itself evidence that the conspiracy was a continuing one which never changed its prime objective. But the identity of purposes was also relevant even if, as appellants contend, the conspiracy was interrupted during the brief existence of the Communist Political Association because the evidence clearly showed the purposes of the reconstituted Communist Party in 1945 to be the same as prior purposes of the Party before the interruption by the Communist Political Association. The Communist Political Association was considered "in error," having abandoned the "basic principles" of Marxism-Leninism, and the reconstituted Party was to guarantee "the re-establishment of the Marxist content of its program, policies and activities." There was abundant evidence that the reconstituted Party was to have the identical purposes that the earlier Communist Party had. On either the continuing conspiracy theory or the return to basic doctrine theory, the evidence was relevant and sufficient, and the jury could have properly considered the pre-1945 evidence in line with the court's charge.
The appellants contend that much of the pre-1945 evidence violates the hearsay rule. But the hearsay bar has no application to the specific items of evidence to which the appellants refer. The evidence of prior acts and declarations was not admitted as probative of the truth of the declarations. Whether or not the declarations stated a truth was immaterial.The relevant fact was that the declarations were made. The material issue was the Party's purposes and teachings. Thus, to illustrate with the first objection enumerated by appellants, they cite the witness Lautner's testimony that in 1930 at a Hungarian Communist training school, one Weinstock taught that revolutions similar to the Russian revolution would take place on a world-wide scale until capitalism would be destroyed in every country and that all Communist Parties were required to accept certain conditions for admission to the Communist International. These conditions were read to the jury. Whether or not a world-wide revolution was necessary for the destruction of capitalism and whether or not the outlined conditions were really necessary were immaterial to the fact in issue. The important fact was that such was taught and advocated by Party leaders at Party schools.
The same is true of the objections made as to the declarations of some of the appellants. For example, the witness Mazzei testified that the appellant Dolsen in 1943 instructed a class that revolution could come about only by the violent overthrow of the government. The witness also read certain passages of a book which Dolsen had read to the class. This evidence was certainly admissible against Dolsen on the question of his intent (6 Wigmore § 1788 et seq., 3d ed. 1940), but the evidence was likewise admissible to prove the objective fact of the Party's teachings, and this was not hearsay. 6 Wigmore § 1766. Nor was the pre-1945 evidence too remote to be material. The prosecution's evidence contained links in Party teachings sufficient for the jury to find a continuity of Party purposes and teachings through the 1930's up to the indictment period. The court below did limit the effect of some of the pre-1945 testimony, such as appellant Nelson's training in the Lenin School in Moscow in 1931, to the question of the particular individual's intent. Such evidence, to limited, did not, of course, violate the hearsay rule, nor was it too remote since a sufficient continuity of participation by Nelson in Party activities was shown. United States v. Dennis, 183 F.2d at pages 231-232.
Even had the pre-1945 evidence been hearsay, it would have been admissible. These acts and declarations which occurred before some of the appellants became members of the Party were admissible because when one joins an existing conspiracy knowing of the illegal objectives, he takes the conspiracy as it is, including prior acts and declarations by co-conspirators which are competent evidence against him. Frankfeld v. United States, 198 F.2d 679; Lefco v. United States, 3 Cir., 1934, 74 F.2d 66; Van Riper v. United States, 2 Cir., 1926, 13 F.2d 961. Of course, the acts and declarations of co-conspirators made while appellants were all members of the Party are admissible. This same rule is applicable to appellants' objections to acts and declarations of co-conspirators made after 1945. The appellants, however, contend that before the co-conspirator rule is applicable, there must be independent evidence of their connection with the conspiracy; but such connection was not lacking in the evidence. As pointed out earlier, the evidence as to the roles appellants played in Party activities was sufficient to provide the connecting links. It is significant to note here the acknowledged (by the defense) principle of democratic centralism by which the Party functioned. Different Party groups were bound almost religiously to abiding by their leaders' decisions and instructions. The evidence of democratic centralism justified the inference that any Party leader or instructor took his orders from essentially the same sources that provided appellants with their instructions. So it was immaterial that appellants might never have known or seen some of the co-conspirators whose acts and declarations were admitted. It is nonsense to say that individuals must meet and shake hands in order to be co-conspirators. We note that the indictment charged a conspiracy by appellants, other named persons and divers other persons unknown to the grand jury.
The admission of testimony by the witness Lautner (a former Communist instructor in Party classes, member of the Party's National Review Commission and New York State Review Commission) as to the meaning of the terms in the Party Constitution was not error. Wide discretion rests in the trial judge as to the admission of opinion evidence. See United States v. Dennis, 183 F.2d at page 229. Testimony similar to Lautner's was also given by defense witness Davis. The court properly allowed both to testify.
Next, the appellants attack the judgments because they say there was no clear and present danger of the substantive evil which is necessary to sustain their convictions. It has already been determined by the Supreme Court that a conspiracy, highly organized and widespread, with regid discipline and well-trained members, to advocate the violent overthrow of the government is a sufficiently grave evil to justify the invasion of First Amendment rights. Dennis v. United States, 1951, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137. See United States v. Flynn, 216 F.2d at pages 366-367. The conspiracy in this case was the same conspiracy charged in the Dennis and Flynn cases so far as advocacy is concerned.
The appellants have argued that the Dennis conspiracy should be considered significantly different because "these appellants were plainly not in a position of national power or policy-making" and "the agreement in the Dennis case was an agreement of a small policy-making group within the Communist Party to assume responsibility for the acts charged in the indictment." But the hierarchal rung upon which a conspirator perches is not relevant because it is the existence and nature of the conspiracy which gives rise to the danger. The activities of the ringleaders constitute a clear and present danger because the tentacles of their authority reach into all parts of the country to give direction to their subordinates, without whom the leaders would probably be helpless. In effect, the larger the conspiracy, the more likely and the more imminent the danger, and all members of that group possessing the necessary intent are equally guilty.
The only question really open to the district court after the jury verdict was the world setting in which the conspiracy thrived. As Judge Harlan said in United States v. Flynn, 216 F.2d at page 366, "Where a conspiracy to destroy the Government by force or violence is involved, we think that the 'clear and present danger' concept, as defined in Dennis, 183 F.2d at page 212, 341 U.S. at page 510, 71 S. Ct. at pages 867-868, connotes no more than that the setting in which the defendants ...