throughout the Section. One item so distributed was 'How to be a Good Communist,' which was used as a basis of instruction in his own club, the Allentown City Club.
In the classes which he attended in 1952 and 1953, the students were taught the role of the Communist Party in bringing about a change in the government of this Country:
'We were instructed that the Communist Party was the leader of the proletariat in this country, and that only by a proletarian revolution could we establish a dictatorship of the proletariat in the United States.'
Asked if he received any instruction in these classes regarding the application of the events of the social revolution in Russia to time and conditions here, Thomas testified:
'A Jack, who was the section organizer of the Communist Party in 1953, said that conditions weren't exactly ripe for the proletarian revolution in this country; that the workers had not been educated enough.
'Q What did he say about educating the workers?
'THE WITNESS: He said that we must infiltrate into basic industry, such as steel, automotive, transportation, and at such a time when the majority of the working classes organize, why, conditions would then be ripe.'
The witness Walter, who lived at Kitnersville, Bucks County, Pa., at the time of trial, joined the Party in 1946. He was then an employe of the Bethlehem Steel Co., and a member of Local 2599, United Steel Workers of America. He testified that he began to furnish information to the F.B.I. in 1952, and that he continued to be a Party member until he appeared as a witness in this case.
Walter stated that he first met defendant at a 'photographer's place' in Philadelphia, in January, 1953. Defendant was introduced to him only as 'Doc'. The occasion was a meeting of the 'Steel Commission' of the Eastern Pennsylvania-Delaware District. The witness explained that the Steel Commission was a Party organization that 'gathers information from all different steel companies throughout the United States.' The meeting, he said, was held in the attic, and the photographer 'drove around the block to make sure that everything was safe and nobody was watching the place.'
The meeting was concerned largely with the preparation of a 'Steel Guide and Handbook.' In the witness' words:
'Well, there was a Steel Guide and Handbook that they said was a deadline and we should get our information in, and this was information collected from different steel companies throughout the United States on grievances, conditions in shops, and so forth, and practically the whole day was discussed on steel.'
At this meeting, Party members of the 'Steel Commission' reported on labor conditions in the plants where they were employed, and Walter 'made a report from Bethlehem Steel.' Defendant questioned Walter concerning grievances and conditions generally in his shop.
Walter next saw the defendant at the meeting of the Section Committee at Kinces' home in Doylestown, in February, 1953. At this meeting, defendant made a report 'on the Rosenbergs':
'He said that we should send telegrams to the President and, you know, for clemency for the Rosenbergs, and that the Pope was going to bat, you know, for the Rosenbergs at that time. He said we should take lessons and admire them, you know, for keeping quiet the way they were.'
The witness, at this meeting, made a report on steel based on a questionnaire:
'I made a report on the amount of men in the locals and the amount of steel that is produced, the grievances, and the different gripes of all the workers, and the speedups, nationality groups, you know, the concentration of nationality groups in the departments, and so forth.'
Defendant attended an all-day 'steel club' meeting of the Communist Party of Lehigh Valley at Walter's home, on April 18, 1953. Those present took turns reading aloud from 'Joseph Stalin, A Political Biography,' and after each reading attempting to explain the passage. The whole day was spent 'going over' the book and discussing its meaning. Defendant took his turn reading, and said that 'we should use the same tactics and procedure as the Communist Party of the Soviet Union.' The witness recalled one particular part of the book:
'A There is one part in there where it says about we should have a closely knit organization, tightly woven organization, in this country, well disciplined organization, and we should become a fortress, and all those that are, you know, pass the test, you know * * *
'THE WITNESS: In another place there where he says we only need three things, that is 'guns, guns, and more guns."
Walter testified that he met defendant again the very next day at the photographer's place in Philadelphia. The occasion was 'a National Steel Commission meeting of the Communist Party of the Eastern United States.' There were reports concerning conditions at the various steel plants. Defendant, referred to as 'Doc,' also spoke:
'There was -- Jack made a report on the clubs, the amount of men we had in steel, Comrades we had in steel. He said we had five in Bethlehem and one in fabricating, and Doc says that he has a member at United States Steel now, in Morrisville, and this was like a wedge, you know it, was a starting point, you know, to start the activities at Morrisville.'
There was some discussion at this meeting on the general subject of peace. According to Walter, defendant said 'that President Eisenhower wasn't sincere in his peace proposals and that Russia was.' The meeting lasted all day. Walter testified that defendant proposed 'that we have educational classes' in Communist Activities.
Walter testified that educational classes were held at his home during two days in July, 1953. Defendant was not present. Among the textbooks used was 'The History of the Communist Party of the Soviet Union.' The same procedure was followed as in former classes. Those present took turns reading and after each reading there was a general discussion of the text.
Considering all the evidence in the light most favorable to the Government, Noto, supra, 367 U.S. at p. 296, 81 S. Ct. 1517, we conclude that it sufficed to make a case for the jury on the issue of illegal Party advocacy. We think the jury could permissibly infer that such teaching and advocacy as the evidence establishes, 'was aimed at building up a seditious group and maintaining it in readiness for action at a propitious time. * * * the kind of indoctrination preparatory to action which was condemned in Dennis.' Yates, supra, 354 U.S. at pp. 321-322, 77 S. Ct. at p. 1078. The jury could properly conclude, we think that the Party engaged in the advocacy 'not of * * * mere abstract doctrine of forcible overthrow, but of action to that end, by the use of language reasonably and ordinarily calculated to incite persons to * * * action,' immediately or in the future. Id., at p. 316, 77 S. Ct. 1064.
The testimony of MacLeod and others of their dealings with defendant is of particular significance. As the Court said of comparable testimony in Scales, supra, 367 U.S. at p. 243, 81 S. Ct. at p. 1493:
'We regard this testimony * * * as being of special importance in two ways: it supplies some of the strongest and most unequivocal evidence against the Party based on the statements and activities of a man whose words and deeds, by virtue of his high Party position, carry special weight in determining the character of the Party from the standpoint of the Smith Act; and it appears clearly dispositive as to the quality of petitioner's Party membership, and his knowledge and intent, when we come to consider him not as a Party official but as the defendant in this case.'
The remaining question on this phase of the case is whether such advocacy was sufficiently broadly based to permit its attribution to the Party. We conclude it was. The advocacy of action was not 'sporadic,' the instances of it being neither infrequent, remote in time nor casual.
We cannot say that the jury could not have found that the criminal advocacy was fully authorized and condoned by the Party. Paraphrasing the language in Scales, supra, at p. 254, 81 S. Ct. 1469, we regard the testimony of the witnesses, whose credibility, of course, is not for us, as indicating a sufficiently systematic and substantial course of utterances and conduct on the part of those high in the councils of the Party, including the defendant himself, to entitle the jury to infer that such activities reflected tenets of the Party. The testimony described activities in various States, as well as the District of Columbia, including the teaching at several schools, among them the National Party School. The witnesses recounted advocacy by high Party officials, some of them leaders of the Party, in several states and in the District of Columbia. Therein, the case is distinguished from Noto where the evidence of illegal advocacy 'was limited almost exclusively to Party doings in western New York, more especially in the cities of Rochester and Buffalo, the scene of petitioner's principal Party activities.' Noto, 367 U.S. at pp. 291-292, 81 S. Ct. at p. 1518. While the advocacy here is not so broadly based as in Scales, we do not understand that there is any talismanic number of jurisdictions required in order to impute responsibility to the Party. Further, there was testimony that the Party followed the principle of 'democratic centralism' whereby a position once adopted by the Party must be given unquestioned adherence by the whole membership. The conformity of the views expressed and the terms employed in advocating violent overthrow in the different states could reasonably be taken by the jury as a practical manifestation of democratic centralism. All of these factors combine to justify the inference that the illegal individual advocacy as to which testimony was adduced was in truth the expression of Party policy and purpose.
The sufficiency of the evidence as to the remaining elements of the crime requires no exposition. Defendant's 'active' membership in the Party is beyond dispute. Indeed, defendant stipulated of record that he had held high office in the Party, without specifying the precise qualify of his membership in so many words. The elements of defendant's 'knowledge' and 'specific intent' require no further discussion of the evidence beyond that already given as to his utterances and activities.
Since, in our view, the evidence was amply sufficient to sustain the verdict, defendant's motion for judgment of acquittal must be denied.
We need consider but one of the issues raised by defendant in support of his motion for a new trial, since the clarification of the law with relation thereto after this defendant's trial requires the grant of defendant's motion.
The witness Walter kept the F.B.I. posted as to the proceedings at Party meetings, and as to Party affairs generally. Walter testified that he 'would meet the agent the day after the meeting' and make an oral report on what had transpired, and that the agent would make written notes as he talked. Defendant served a subpoena, in proper form, requiring the production, inter alia, of all notations of oral reports made by Walter. Defendant had shown no inconsistency between these reports and the witness' testimony. Following our interpretation of Gordon v. United States, 344 U.S. 414, 73 S. Ct. 369, 97 L. Ed. 447 (1953), we sustained the Government's motion to quash the subpoena. It later developed that our reliance on Gordon was misplaced, as was that of both the trial Court and the Court of Appeals in the first Scales trial. See, Scales v. United States, 227 F.2d 581, 592 (4th Cir.1955), rev'd 355 U.S. 1, 78 S. Ct. 9, 2 L. Ed. 2d 19 (1957), citing Jencks v. United States, 353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103 (1957). Jencks, which was decided a year after this defendant's trial, distinguished Gordon, and held that a defendant is not required to lay a preliminary foundation of inconsistency, where a sufficient foundation is established by the testimony of the witness that his reports were of the events and activities related in his testimony.
It is clear, therefore, that we erred in our ruling with respect to the reports of the witness Walter and that a new trial must be granted. It is unnecessary to consider our action in regard to reports of the witnesses Thomas and Markward. Accordingly, we enter the following:
NOW, June 29, 1962, it is ordered and decreed that:
1. Defendant's motion for judgment of acquittal be, and it is, denied.
2. Defendant's motion for a new trial be, and it is, granted.