The opinion of the court was delivered by: KRAFT
Defendant was convicted by the verdict of a jury under the so-called membership clause of the Smith Act. 18 U.S.C. § 2385. That Act, among other things, makes a felony the acquisition or holding of membership in any organization which advocates the overthrow of the Government of the United States by force or violence with knowledge of its purposes.
The indictment charged that from July 26, 1945, to the date of its filing (October 6, 1954) the Communist Party of the United States was such an organization, and that defendant throughout that period was a member thereof, with knowledge of the Party's illegal purpose and a specific intent to accomplish overthrow 'as speedily as circumstances would permit.'
The case is before us on defendant's motions for judgment of acquittal, or, in the alternative, for a new trial. We need only consider defendant's attack on the sufficiency of the evidence and his allegations of trial and procedural errors, since his statutory and constitutional challenges to the conviction are now disposed of by the decision in Scales v. United States, 367 U.S. 203, 81 S. Ct. 1469, 6 L. Ed. 2d 782 (1961).
In considering the sufficiency of the evidence, we start from the premise that Smith Act offenses, involving as they do subtler elements than are present in most other crimes, require rigorous standards of proof. Scales, p. 232, 81 S. Ct. 1469; Noto v. United States, 367 U.S. 290, 291, 81 S. Ct. 1517, 6 L. Ed. 2d 836 (1961). It will contribute to a better understanding and evaluation of the evidence if we refer in some detail to the standards of proof laid down in Scales and Noto, supra, the Supreme Court's first review of convictions under the membership clause of the Smith Act. In Scales, the Court noted with approval the premises upon which that case was submitted to the jury (367 U.S. p. 220, 81 S. Ct. p. 1481):
'The jury was instructed that in order to convict it must find that within the three-year limitations period (1) the Communist Party advocated the violent overthrow of the Government, in the sense of present 'advocacy of action' to accomplish that end as soon as circumstances were propitious; and (2) petitioner was an 'active' member of the Party, and not merely 'a nominal, passive, inactive or purely technical' member, with knowledge of the Party's illegal advocacy and a specific intent to bring about violent overthrow 'as speedily as circumstances would permit."
The Court pointed out in Scales that the evidentiary question there was controlled in large part by Yates v. United States, 354 U.S. 298, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957), which was a conspiracy prosecution under the Smith Act Yates makes abundantly clear the distinction between advocacy of abstract doctrine and advocacy directed at promoting unlawful action, pp. 318-322, 77 S. Ct. 1064. '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 to believe in something,' pp. 324-325, 77 S. Ct. p. 1080. In Yates, it was further said, pp. 320-322, 77 S. Ct. p. 1078:
'* * * The essence of the Dennis (v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137) holding was that indoctrination of a group in preparation for future violent action, as well as exhortation to immediate action, by advocacy found to be directed to 'action for the accomplishment' of forcible overthrow, to violence as 'a rule or principle of action,' and employing 'language of incitement,' * * * is not constitutionally protected * * *. This is quite a different thing from the view of the District Court here that mere doctrinal justification of forcible overthrow, if engaged in with the intent to accomplish overthrow, is punishable per se under the Smith Act. That sort of advocacy, even though uttered with the hope that it may ultimately lead to violent revolution, is too remote from concrete action to be regarded as the kind of indoctrination preparatory to action which was condemned in Dennis. As one of the concurring opinions in Dennis put it: 'Throughout our decisions there has recurred a distinction between the statement of an idea which may prompt its hearers to take unlawful action, and advocacy that such action be taken."
In Scales, the Court referring to the Yates opinion, indicates what type of evidence is needed to permit a jury to find that (a) there was 'advocacy of action' and (b) the Party was responsible for such advocacy, 367 U.S. pp. 232-235, 81 S. Ct. p. 1488:
'First Yates makes clear what type of evidence is not in itself sufficient to show illegal advocacy. This category includes evidence of the following: the teaching of Marxism-Leninism and the connected use of Marxist 'classics' as text-books; the official general resolutions and pronouncements of the Party at past conventions; dissemination of the Party's general literature, including the standard outlines on Marxism; the Party's history and organizational structure; the secrecy of meetings and the clandestine nature of the Party generally; statements by officials evidencing sympathy for and alliance with the U.S.S.R. * * * However, this kind of evidence, while insufficient in itself to sustain a conviction, is not irrelevant. Such evidence, in the context of other evidence, may be of value in showing illegal advocacy.
'Second, the Yates opinion also indicates what kind of evidence is sufficient. There the Court pointed to two series of events which justified the denial of directed acquittals as to nine of the Yates defendants. The Court noted that with respect to seven of the defendants, meetings in San Francisco which were described by the witness Foard might be considered to be 'the systematic teaching and advocacy of illegal action which is condemned by the statute.' 354 U.S. at 331, (77 S. Ct. at 1083.) In those meetings, a small group of members were not only taught that violent revolution was inevitable, but they were also taught techniques for achieving that end. For example, the Yates record reveals that members were directed to be prepared to convert a general strike into a revolution and to deal with Negroes so as to prepare them specifically for revolution. In addition to the San Francisco meetings, the Court referred to certain activities in the Los Angeles area 'which might be considered to amount to 'advocacy of action" and with which two Yates defendants were linked. Id., 331-332 (77 S. Ct. 1083). Here again, the participants did not stop with teaching of the inevitability of eventual revolution, but went on to explain techniques, both legal and illegal, to be employed in preparation for or in connection with the revolution. Thus, one member was 'surreptiously indoctrinated in methods * * * of moving 'masses of people in time of crisis"; others were told to adopt such Russian prerevolutionary techniques as the development of a special communication system through a newspaper similar to Pravda. Id., 332 (77 S. Ct. 1083). Viewed together, these events described in Yates indicate at least two patterns of evidence sufficient to show illegal advocacy: (a) the teaching of forceful overthrow, accompanied by directions as to the type of illegal action which must be taken when the time for the revolution is reached; and (b) the teaching of forceful overthrow, accompanied by a contemporary, though legal, course of conduct clearly undertaken for the specific purpose of rendering effective the later illegal activity which is advocated. Compare Noto v. United States, post (367 U.S. 290) at 297-299 (81 S. Ct. 1517, 6 L. Ed. 2d 836).
'Finally, Yates is also relevant here in indicating, at least by implication, the type and quantum of evidence necessary to attach liability for illegal advocacy to the Party. In discussing the Government's 'conspiratorial-nexus theory' the Court found that the evidence there was insufficient because the incidents of illegal advocacy were infrequent, sporadic, and not fairly related to the period covered by the indictment. In addition, the Court indicated that the illegal advocacy was not sufficiently tied to officials who spoke for the Party as such.'
With these criteria in mind, we proceed to an examination of the evidence. Here, as in both Scales and Yates, one of the Government's basic witnesses was Lautner, who testified from the background of high-level participation in Party affairs from 1929 to 1950. Lautner testified that he attended a Party training school in New York for about three months in 1930, where he was instructed by Party leaders in the following subject matters:
'The History of the Russian Revolution and the Communist International; Leninism; the Decisions of the Sixth World Congress of the Communist International; Political Economy; Dialectial Materialism; The Paris Commune; The Communist Manifesto; Communist Party Problems; subject matter on administrative work; and numerous lectures on various topics.'
Following completion of this course, Lautner was assigned to Detroit, Michigan, where he taught classes in the theory of Marxism-Leninism, and in his activities was 'giving and showing an example how to translate the teachings of Marxism-Leninism into activities in that given district.'
Lautner testified that from April, 1936, until the end of 1940, he served as District Organizer for the District of West Virginia, and thus described his duties:
'First, to represent the Central Committee of the Communist Party in West Virginia; to give leadership to all Party activities in that State; to carry out the Party campaigns in West Virginia; to build the Party in that State, particularly in the basic industries like mining; to build the Party mass organizations; to build the influence of the Communist Party in the miners' unions down there; to see to it that resolutions and the Party policies are reflected in the conventions of the labor unions down there on various issues that the Party is raising; to develop a District Committee.'
During this period, Lautner testified, he attended Central Committee meetings in New York City twice a year, where he met the defendant, who was at that time Organizer for the District of Maryland. The witness recalled that at one of these meetings Stachel, Executive Secretary of the Central Committee, 'gave a report on the need and necessity for Party leaders to editorially acquaint themselves with the basic writings of Marx, Engels, Lenin and Stalin, to deepen their understanding on Marxism-Leninism, and as a result of that the quality of work of the Party leaders will be tremendously improved.'
In 1941, Lautner was sent to the National Training School in New York, where seven Party functionaries from various sections of the eastern part of the United States were given instruction by Party leaders in Marxism-Leninism and other subjects. Dr. Mandel, School Director of the Communist Party, was in charge of the school, which began about the middle of January, 1941, and continued until early the following May. Classes met 'in various places in New York City; in a different place from day to day.' The textbooks included the so-called Marxist 'classics' and more modern Party literature. The Government's counsel read into evidence lengthy passages from these works, and Lautner testified, following each passage, that he had been so taught at the Training School. These excerpts, in the main, dealt with the necessity for violent overthrow of the capitalist structure. Asked if he could recall any discussion by his instructors on this subject, Lautner stated:
'Well, it was in the class of Marxism-Leninism taught by George Siskind and in his discussion, in substance, he said that the transition from capitalism to socialism in the United States must be a direct one. The United States being one of the most powerful, the most powerful imperialist country, the imperialists who own the wealth of the nation will not readily, and who own the power in the nation will not readily yield that power, therefore, it must be wrested from them, it must be taken away from them, and the transition from capitalism to socialism will be through the proletarian revolution and the dictatorship of the proletariat. He said that this transition is a direct one; there are no intermediary steps like in instances of colonial revolutionary situations, and he reemphasized, said numerous times, that being the most powerful imperialist country in the world there is no other way than to wrest power through the proletarian revolution and setting up of the dictatorship of the proletariat in the United States.'
Lautner testified that, in the context of Siskind's discussion, he understood that 'wrest' meant 'to take away by force.' The witness stated he was taught that two conditions must prevail for a successful transition from capitalism to socialism via the proletarian revolution and the dictatorship of the proletariat:
'One of the conditions, set of conditions, is when imperialism is in a state of turmoil, when the state apparatus cannot exert its power by the established and practiced means, when there is a governmental crisis, there is a deep economic crisis or a war situation, where large sections of the population are dissatisfied and not influenced any more by the state and its institution. When a combination of this one set of circumstances prevail -- and in addition to that, there is a powerful Communist Party, not necessarily numerically strong but an influential, powerful Communist Party that has decisive influence and control over large sections, particularly decisive sections of the industrial proletariat; in addition to that it has sections of the national minorities; in addition to that it neutralized sections of the middle classes. When these two sets of conditions or combinations of them exist, that is the situation when we are at the eve, on the eve of the proletarian revolution and the dictatorship of the proletariat.'
'Democratic centralism means a concept of organization. Decisions are made by higher bodies in the organization. These decisions are obligatory on all members in the lower organizations of that particular higher body that made the decision. Whether one agrees or disagrees with these decisions is important in this sense: that if one disagrees they have to carry out the decisions anyway, and they can take exceptions to those decisions after the decision is carried out.'
Following his completion of this course, Lautner was appointed to the National Group Commission of the Party, an assignment to which he returned in 1945 after service in the Army. The Party was then known as the Communist Political Association. Lautner testified that he attended the National Convention in New York City in 1945, when the revisionist errors under Browder were repudiated, a report dealing with the return to the classics was accepted unanimously and the Party was reconstituted as the Communist Party of the United States of America.
Lautner testified that, following the 1945 Convention, he taught classes in various places in New York City, in such subjects as Marxism-Leninism, Democratic Centralism, Party Structure, etc., using the 'classic works' as texts. He added that 'these were classes of section functionaries and branch organizers and of Party functionaries in the trade union movement.' The witness gave the reason for these classes:
'Because after the reconstitution of the Party, one of the key programs worked out for the Party and by the Party was the reindoctrination of the whole Party membership on all levels to eradicate any vestiges of Browderism in the ranks of the Party, and New York County had a whole series of classes, New York State organized similar classes, and the education was going on on all levels, so that is how I came to teaching some of these classes.'
Lautner was engaged in these teaching activities from 1946 until about 1948. He testified that he taught his classes, in substance, what he himself had been taught in the Party Training School in 1941, and based his instructions on the same textbooks.
Asked what he taught his pupils in New York County with reference to capitalism, imperialism, and its fate, Lautner testified:
'Well, capitalism as such reached its final stage of development, monopoly capitalism and imperialism, and turned into its opposite, what it was, in its progressive stages. That monopoly capitalism, imperialism, this final stage, carries within itself the very forces of its own destruction. These forces within monopoly capitalism that are bent to destroy monopoly capitalism and imperialism came forth, came about as the irreconcilable contradictions within capitalism itself. The next stage of development will come abruptly out of this monopoly capitalism, imperialism, and the role of the Communist Party was to create the necessity * * *
'The role of the Communist Party was to create the necessary subjective conditions as part of this force within monopoly capitalism so that when certain objective conditions are given in this area, in this epoch, the irreconcilable contradictions with the monopoly capitalism reach a point where the state machine, the machinery, is in a crisis, it stops; the Communist Party, who created the subjective conditions, is in a position to challenge the system, monopoly capitalism, imperialism, and bring about its destruction, its downfall, through force and violence if necessary.'
The witness Donovan, then an employe of the National Recovery Administration and President of Lodge No. 91, the NRA Lodge of the American Federation of Government Employees, joined the Party in 1933. Donovan stated that he met the defendant at a Party meeting in Washington, D.C., in 1934. Defendant, according to the witness, was then a representative of the District Committee of the Party which included Washington. At this meeting, Donovan became a member of the Section Committee representing Party members who were employes of NRA.
This committee met weekly, always at a different location, and defendant was present at most of the meetings. Defendant was deferred to as the final authority in the group, and 'the position taken by Dr. Blumberg was the position of the section committee.' Donovan testified that at these meetings there were discussions of the necessity for Party education within the Section Committee and within the units under the Section Committee, 'with particular emphasis on the fact that this was a section of Communist Party members in Washington, D.C., working in the Federal Government * * *.' He described the type of educational work discussed:
'The reading, as a required assignment, of particular documents published by the Communist Party or one of its printing organizations; the assignment of particular individuals to prepare reports, summarizing or leading the discussion of the contents of a particular document; the receipt of orders from the various units for the Daily Worker or various current or classical items of Communist Party literature; the distribution by the Agit-Prop member of the section committee of such literature after he had obtained it, to the representatives of the various units for transmission to the units.'
Donovan explained that by 'classical' items he meant the standard past works of recognized Marxist and Communist authorities, such as Marx, Engels, Lenin and Stalin. The witness said that he participated in the distribution of this literature among Party members, and that some of the texts were discussed within the Section Committee.
The witness testified that V. I. Jerome, a Party theoretician, delivered a lecture at a meeting of the Section Committee in the course of which he stated that 'Soviet Power was the basic slogan of the Communist Party.' Donovan recalled another lecturer, Louis Weinstock, who spoke emphatically of the great interest of the Party in labor affairs.
Another witness, Lincoln J. Gerende, joined the Party in Baltimore in 1937, at defendant's invitation, and remained a member until 1940. He testified that he joined under the name of Carl Brenn at defendant's suggestion, 'because of the fact that my wife, former wife, was a Government employe, he thought it would be advisable if I used a name other than my own.'
In about 1938, Gerende, at the request of Fields, District Organizer, took a job with the CIO Steel Workers Union in the Bethlehem Steel Corporation, in Baltimore. Defendant was then City Organizer or City Secretary of the Baltimore City Communist Party. The Party unit within the Local numbered between 20 and 30 members, and defendant visited the unit on occasion.
After about 4 or 6 months, Gerende took employment at the Workers' Bookshop in Baltimore, which had been organized under Party auspices to sell and disseminate Party literature. Defendant and Fields visited the bookshop on occasion to find out what was being sold, and to discuss with the witness the debt due the International Publishers, which was engaged in publishing Party literature. The bookshop carried for sale the works of Marx and Engels, Lenin and Stalin, 'also pamphlets and books by various other members of the Communist Party, both of the United States and of the Soviet Union, China, as I recall, and France, and England.' The bookshop also sold the 'Daily Worker' and distributed it to the various units. The witness explained the function of the 'Daily Worker':
'Wall, as I recall it, the Daily Worker was the official organ of the Communist Party of the United States of America, and as such on its editorial pages, at least, it stated the official policy of the Communist Party and also gave the interpretations of the news events in terms of this official policy.'
Gerende testified that the bookshop was under the general supervision of defendant and Fields, ...