Lead Opinion
These are appeals by four defendants
As is well known, the war in Vietnam and the draft to support it have engendered considerable animosity and frustration. In August 1967 a number of academic, clerical, and professional persons discussed the need of more vigorous opposition to governmental policies. From their eventually consolidated efforts came a document entitled “A Call to Resist Illegitimate Authority” (hereinafter the Call) and a cover letter requesting signatures and support. The letter was signed by defendant Dr. Benjamin Spoek and defendant Rev. William Sloane Coffin, Jr., and two other persons. The Call was originally signed by them, numerous others, and eventually by hundreds. The defendant Mitchell Goodman had been preparing a somewhat similar statement against the war and the draft. In mid-September he learned of the Call, which he also signed. He, Coffin, Spock and others spoke on October 2 at a press conference in New York City to launch the Call. It was there announced by Goodman that further activities were contemplated, including a nationwide collection of draft cards and a ceremonial surrender thereof to the Attorney General. On October 16 a draft card burning and turn-in took place at the Arlington Street Church in Boston, arranged by the defendant Michael Ferber, and participated in by Coffin. Four days after-wards all four defendants attended a demonstration in Washington, in the course of which an unsuccessful attempt was made to present the fruits of that collection and similar gatherings to the Attorney General.
The indictment was framed under section 12 of the Military Selective Service Act of 1967, 50 App. U.S.C. § 462(a). It charged that defendants, and others known and unknown, conspired to “counsel, aid and abet diverse Selective Service registrants to * * * neglect, fail, refuse and evade service in the armed forces of the United States and all other duties required of registrants under the Universal Military Training and Service Act * * * and the rules, regulations and directions duly made pursuant to said Act * * * to * * * fail and refuse to have in their personal possession at all times their registration certificates [and] * * * valid notices of classification
I
Inseparable from the question of the sufficiency of the evidence to convict are the rights of the defendants, and others,
As the defendants point out, most conspiracies are secret. To argue from this, however, that illegality presupposes secrecy is to confuse means with ends. Illegality normally seeks cover, but conspirators may act openly or not, as best suits their purpose. Here the defendants’ primary object was publicity, and their conduct was designedly open. No one before has suggested that this fact, or the concomitant warning to the government of impending danger, requires that the government’s hand be stayed until the substantive offense is committed.
Admittedly, the First Amendment rights of free speech and free association, see, e. g., Elfbrandt v. Russell, 1966,
In comparing the present private and public interests we start with the assumption that the defendants were not to be prevented from vigorous criticism of the government’s program merely because the natural consequences might be to interfere with it, or even to lead to unlawful action.
The government’s ability to deter and punish those who increase the likelihood of crime by concerted action has long been established. See Developments in the Law — Criminal Conspiracy, 72 Harv.L.Rev. 920, 923-25 (1959). Restricting it to punishment /of substantive violations ignores the potency of conspiratorial conduct;
Nor is the government's interest diminished in this case by defendants’ claim that their conduct did not involve “incitement” and their reliance upon Bond v. Floyd’s pronouncement that an expression of “sympathy and support” for those who resisted the draft did not violate section 462(a). The defendants do not quote all of Bond. The Court regarded Bond’s first remarks as “opaque.” Accordingly, it considered a second statement,
In the early Smith Act cases, in considering the defendants’ conduct in teaching the doctrines of revolution and advocacy of violence, substantial questions arose as to imminency of accomplishment. Dennis v. United States, 1951,
Despite the validity of the government’s present interest, the defendants were entitled under the cases to certain protections before they could be convicted of conspiracy in what we might call a bifarious undertaking, involving both legal and illegal conduct. This matter was considered by Mr. Justice Harlan, speaking for the Court in Seales v. United States, 1961,
In Scales the Court held that protection for the innocent could be adequately accomplished by requiring that the defendants’ specific illegal intent be proved to the degree demanded in Noto v. United States, 1961,
Application of such a standard should forcefully answer the defendants' protests that conviction of any of them would establish criminal responsibility of all of the many hundreds of persons who signed the Call. Even if the Call included illegal objectives, there is a wide gap between signing a document such as the Call and demonstrating one’s personal attachment to illegality. Of greater importance, it responds to the legitimate apprehension of the amicus that the evil must be separable from the good without inhibiting legitimate association in an orderly society.
At the same time, this principle demonstrates a fundamental error in the government’s approach. Adopting the panoply of rules applicable to a conspiracy having purely illegal purposes, the government introduced numerous statements of third parties alleged to be co-conspirators. This was improper: The specific intent of one defendant in a case such as this is not ascertained by reference to the conduct or statements of another even though he has knowledge thereof. Cf. United States v. Silverman, 2 Cir., 1957,
II
In this section we consider whether, on the review of the record which is required by Yates v. United States, supra, and Dennis v. United States, supra, the evidence was sufficient to take the defendants to the jury. We divide this consideration into three parts. First, whether there was evidence of an agreement; second, whether the agreement contemplated or included illegal activity; third, whether the defendants individually adhered to that illegality.
The Evidence of Agreement
The government’s claim of agreement looks basically to the Call, the cover letter, and the subsequent press conference.
The cover letter, requesting signatures and other response to the Call, stated that the signers of the Call “have pledged themselves to extend material and moral support to young men who are directly resisting the war.” There followed a “box” containing requests for further signatures of “endorsement,” contributions of “$_to support the work of RESIST. (Please make checks payable to RESIST.),” and volunteers interested in organizing or joining local groups “to support young men directly resisting the war.” A similar “box” appeared in the Call itself, when printed.
At the press conference, in addition to discussing the Call, Goodman advanced his own paper, signed also by Coffin, along strikingly similar lines, entitled “Civil Disobedience Against the War”
“The draft law commands that we shall not aid, abet or counsel men to refuse the draft. But as a group of the clergy has recently said, * * * when young men refuse to allow their conscience to be violated by an unjust law and a criminal war, then it is necessary for their elders — their teachers, ministers, friends — to make clear their commitment, in conscience, to aid, abet and counsel them against conscription. Most of us have already done this privately. Now publicly we will demonstrate, side by side with these young men, our determination to continue to do so.” (emphasis in orig.)
Goodman described the Call as a first step, and said that further activity was to follow. He announced a demonstration to be held in Washington on October 20, as an act of “direct creative resistance,” at which time draft cards surrendered at turn-ins that had been planned for October 16 would be delivered to the Attorney General. This announcement, as both conceded, was the result of a prearrangement with Coffin.
Spock argues that there was no “agreement among leaders of an integrated political group * * *. [T]his case presents no more than the publicly expressed coincidence of views on' public affairs.” No merit, however, lies in the suggestion that there must be a cohesiveness in the group beyond the confines of the agreement itself. See Direct Sales Co. v. United States, supra n. 7, at 713,
The Call was not what is known in law as an integrated document, limited to the four corners of the instrument. The jury could properly infer that it could not occur in the abstract, with no parents, and no active participants in a joint undertaking. We hold that they could look to Spock as one of the drafters, and to Spock and Coffin as two of the four signers of the solicitation letter, and in the light of the press conference held to publicize the Call in which Goodman took a prominent part, they could find that Goodman included himself as an active member. The evidence disclosed more than parallel conduct, see United States v. Bufalino, 2 Cir., 1960,
The Evidence of Illegal Purpose
The defendants contend that nothing in the record would justify a finding of unlawful purpose in their agreement. Spock puts this succinctly: “There is nothing in the Call to Resist * * * which suggests the objective of counseling, aiding and abetting anyone to resist induction.” Rather, he contends the only action contemplated was “simply moral support and financial aid for young men and their families who in good conscience are unable to participate in the war.” Coffin argues further, “[Djraft ‘resistance’ is not a crime; the statute forbids only ‘evasion’ and ‘refusal.’ ”
Examination of the Call shows nothing suggesting it sought to distinguish between “resistance” and “refusal.” It was addressed to laymen, and is to be given a common sense and not a legalistic interpretation. We look, as indeed with any document, to its own clues as to what its subscribers may have intended the words to mean. So doing, we believe a jury would be amply justified in finding that “resist” included that type of resistance which the signers recognized, to use the words of Bond v. Floyd, supra, as “a call to unlawful refusal.” Hence the whole concept of “illegitimate” authority. “[R]efusing to be inducted” must imply an order of induction to be refused. Hence the “heavy penalty” for “resisting openly.” Hence the “need to support families,” since families would not need support if the registrants’ conduct met legal standards. “[Sjanetuary in other countries” scarcely suggests travel authorized by the registrant’s draft board.
Nor was this a mere factual recital of what others were doing. “Now is the time to resist.” It was at least open to the jury to find that these illicit actions were within what the Call, to use its own word, sought to “encourage;” and that the Call was, to repeat, in the words of the Court in Bond, “a call to unlawful refusal to be drafted.”
This is not to deny that the Call contained many lawful criticisms of the war, lawful adjurations and expressions of sympathy and support for persons who acted illegally, and contemplated conduct of an entirely lawful character. It is also true, as Spock points out, that the Call stated that funds would be used “in whatever ways may seem appropriate.” From this he argues that the persons signing the Call “reserve to themselves the determination of ‘what ways may seem appropriate.’ ” While this may be so, nonetheless the Call on its face indicated that some signers considered the illegal to be the appropriate. Cf. Truax v. Corrigan, 1921,
The Evidence of Specific Intent
There remains the question whether it could have been found, within the strict test laid down by the cases supra, that the individual defendants personally agreed to employ the illegal means con
In addition, Goodman’s remarks at the Washington demonstration were pari passu. There, after referring to the continuing activities of the Resistance in their successful solicitation of “draft resisters,” Goodman stated that those of the older generation were present “because we want specifically to form an alliance with these young men which we will persist in, at least as long as the war lasts, in which we will encourage them and aid and abet and counsel them m every way we know how.” (emphasis suppl.) The ambiguity in the original agreement was clarified, as to Goodman, by his own statements. Because a properly instructed jury could have found Goodman had the requisite specific intent he was not entitled to an acquittal.
Coffin also signed Civil Disobedience, but if it could be thought that in some manner he is not to be personally charged therewith we quote his remarks at Washington, when it was sought to present turned-in cards to the Attorney General, again, like Goodman, speaking in terms of a joint undertaking.
“The law of the land is clear. Section 12 of the National Selective Service Act declares that anyone ‘who knowingly counsels, aids, or abets another to refuse or evade registration or service in-the armed forces * * * shall be liable to imprisonment for not more than five years or a fine of ten thousand dollars or both.’
“We hereby publicly counsel these young men to continue in their refusal to serve in the armed forces as long as the war in Vietnam continues, and we pledge ourselves to aid and abet them in all the ways we can. This means that if they are now arrested for failing to comply with a law that violates their consciences, we too must be arrested, for in the sight of that law we are now as guilty as they.
“It is a longstanding tradition, sanctioned by American democracy, that the dictates of government must be tested on the anvil of individual conscience. This is what we now undertake to do — not as a first but as a last resort. And in accepting the legal punishment we are, in fact, supporting, not subverting, the legal order.
“Still, to stand in this fashion against the law and before our fellow Americans is a difficult and even fearful thing. But in the face of what to us is insane and inhuman we can fall neither silent nor servile. Nor can we educate young men to be conscientious only to desert them in their hour of conscience. So we are resolved, as they are resolved, to speak out clearly and to pay up personally.”29
Finally, at the Arlington Street Church ceremony on October 16 Coffin not only spoke but assisted in the collection of draft cards. This participation and assistance could well have been found to be aiding and abetting non-possession.
The principle of strictissimi juris requires the acquittal of Spoek. It is true that he was one of the drafters of the Call, but this does not evidence the necessary intent to adhere to its illegal aspects. Nor does his admission to a government agent that he was willing to do “anything” asked to further opposition to the war. Specific intent is not established by such a generalization. Whatever the reason
Similarly, Spock’s actions lacked the clear character necessary to imply specific intent under the First Amendment standard. He was not at the Arlington Street Church meeting; in fact he knew nothing of it until afterwards. Although he was at the Washington demonstration he had, unlike Goodman and Coffin, no part in its planning. He contributed nothing, even by his presence, to the turning in of cards. Nor, finally, did his statements in the course of the Washington demonstration extend at all beyond the general anti-war, anti-draft remarks he had made before. His attendance is as consistent with a desire to repeat this speech as it is to aid a violation of the act.
The dissent would fault us for drawing such distinctions, but it forgets the teaching of Bond v. Floyd and other cases that expressing one’s views in broad areas is not foreclosed by knowledge of the consequences, and the important lesson of Noto, Scales and Yates that one may belong to a group, knowing of its illegal aspects, and still not be found to adhere thereto. Viewing the -record as a whole we feel we would be doing poor service to the rule of strictissimi juris, and to the principle that there must be substantial evidence, Yoffe v. United States, 1 Cir., 1946,
The defendant Michael Ferber presents a different situation. Ferber was a draft-age student. His activities were limited to assisting in the burning and surrender of draft cards. Although he made an address at the Arlington Street Church, it was not counselling draft resistance, or even the surrendering of cards. Not only did he not sign the Call, or the cover letter, or attend the press conference, but the evidence did not warrant a finding that through other statements or conduct he joined the larger conspiracy for which the other defendants were prosecuted. The fact that he made incidental use of the services of some of the other defendants for his own purposes does not mean that he evidenced an attachment to all of theirs. It may be that Ferber engaged in a smaller conspiracy. This does not mean that he should be convicted for the larger one. Daily v. United States, 9 Cir., 1960,
As already stated, we have not fully pursued the question of prejudicial error in the course of trial because, in the exercise of our supervisory power,
“Question No. 1. Does the Jury find beyond a reasonable doubt that defendants unlawfully, knowingly and wilfully conspired to counsel Selective Service registrants to knowingly and wilfully refuse and evade service in the armed forces of the United States in violation of Section 12 of the Military Selective Service Act of 1967?”
The second substituted for the word “counsel” the word “aid,” and the third substituted the word “abet.” The questions then dealt separately, but identically, with “notices of classification” and “registration certificates.”
The submission of questions to the jury in civil cases is an everyday occurrence. In criminal cases, outside of a special, narrow area, the government is not only without precedent, but faces a formidable array o.f objections. The simplest is that the Federal Rules of Criminal Procedure contain no provision complementing F.R.Civ.P. 49 covering the civil practice. Indeed, as emphasizing this difference, we note that F.R.Crim.P. 23(c) provides for special findings by the judge. While the absence of a rule is not necessarily determinative, particularly in the light of F.R.Crim.P. 57(b),
Of more substantive importance is the fundamental difference in the jury’s functions in civil and criminal cases. In civil trials the judge, if the evidence is sufficiently one-sided, may direct the jury to find against the defendant even though the plaintiff entered the case bearing the burden of proof. F.R.Civ.P. 50. In a criminal case a court may not order the jury to return a verdict of guilty, no matter how overwhelming the evidence of guilt.
“It is one of the most essential features of the right of trial by jury that no jury should be compelled to find any but a general verdict in criminal cases, and the removal of this safeguard would violate its design and destroy its spirit.”
G. Clementson, Special Verdicts and Special Findings by Juries, 49 (1905).
“[T]he, submission of special interrogatories, answers to which are to accompany the general verdict * * *. [began as an effort] to catechize a jury as to its reasons * *
Morgan, A Brief History of Special Verdicts and Special Interrogatories, 32 Yale L.J. 575, 592 (1923). See also Walker, The Finality of Jury Verdicts, 118 New L.J. 866, 867-68 (1968). This merges into a more basic reason which the court noted but, because of special circumstances, did not accept, in United States v. Ogull, S.D.N.Y., 1957,
“To ask the jury special questions might be said to infringe on its power to deliberate free from legal fetters; on its power to arrive at a general verdict without having to support it by reasons or by a report of its deliberations; and on its power to follow or not to follow the instructions of the court. Moreover, any abridgement or modification of this institution would partly restrict its historic function, that of tempering rules of law by common sense brought to bear upon the facts of a specific ease.”
The cogency of this is so felt by Mr. Justice Black and Mr. Justice Douglas that they disapprove of special interrogatories even in civil cases.
It may be said that since the law should be logical and consistent, if the questions were proper in substance this would be a desirable rather than an undesirable result. We agree, however, with the distinction made by L. Hand, J., concurring in Skidmore v. Baltimore & O. Ry., 2 Cir., 1948,
“I should like to subject a verdict, as narrowly as was practical, to a review which should make it in fact, what we very elaborately pretend that it should be; a decision based upon law. In criminal prosecutions there may be, and in my judgment there are, other considerations which intervene to make such an attempt undesirable.”
Uppermost of these considerations is the principle that the jury, as the conscience of the community, must be permitted to look at more than logic. Indeed, this is the principle upon which we began our discussion. If it were otherwise there would be no more reason Wjhy a verdict should not be directed against a defendant in a criminal case than in a civil one. The constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly. See Morris v. United States, 9 Cir., 1946,
In this circumstance, the government makes two answers. The first is that in a small number of criminal cases special findings have been permitted. No useful purpose would be served by discussing these cases; they are distinguishable.
Nor is it an answer that these questions were labelled special findings and not special verdicts, and that the jury was informed that they were to be answered only if a general verdict of guilty had been reached. It cannot be assumed that a jury would scrupulously adhere to such chronology even if, as the government contends, the charge as a whole could be taken as instructing the jury that this was the proper order of procedure. Rather, it would have been natural, in case the jury found itself in doubt, to do the reverse. Particularly would this be so when the court’s last remark on this subject was, “These special questions, members of the jury, will help to inform you as to the issues involved in this case.” The jury could well take this as an invitation, not a proscription.
We are not necessarily opposed to new procedures just because they are new, but they should be adopted with great hesitation. Cf. Gray v. United States, supra, at 924 (“It is not the function of the courts subordinate to the Supreme Court to introduce innovations of criminal procedure.”). It takes but little imagination to see that the present case should be the last, rather than the first, to embark upon a practice of submitting special jury findings in a criminal case along with the general issue for no significant reason.
The verdicts are set aside, and the judgments vacated. Judgments are to be entered for the defendants Spock and Ferber, and a new trial is ordered for the defendants Goodman and Coffin.
Notes
. A fifth defendant was acquitted, and will not be further referred to.
. In addition, considerable evidence was introduced of Spook’s participation in a sit-in in front of the Whitehall induction center in New York City. We will assume with the defendants and now, apparently, the government as well, that this was token activity and protected political expression. See Brown v. Louisiana, 1966,
. Hereinafter, without distinction, draft cards.
. We do not understand the government to interpret 50 App. U.S.C. § 462(a) to cover hindering or interfering with the nonrecruitment activities of the armed services. Such action would be criminal under the Espionage Act, 18 U.S.C. §§ 2387, 2388(a), 2391.
. The brief of the Unitarian Universalist Association, amicus, is the only one which envisages that, although the defendants may have committed illegal acts, their conviction might impermissibly affect First Amendment rights of third parties. In considering this matter we are not troubled by questions of standing. Compare Dombrowski v. Pfister, 1965,
. Because of the identity of surname with one of the defendants, we will hereafter refer to Judge Coffin simply as the dissent.
. In Direct Sales Co. v. United States, 1943,
. Other eases in which the conspiracy itself was to a large degree public include
. Neither can the claim that the conspiracy was “non-cohesive.” If any cohesive motive be thought necessary where there already was a written document, cf. Interstate Circuit, Inc. v. United States, 1939,
. The “general principle [is] that society, having the power to punish dangerous behavior, cannot be powerless against those who work to bring about that behavior.” Scales v. United States, 1961,
. “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.” Justice Frankfurter concurring in Dennis v. United States, 1951,
. The occasionally asserted judicial hostility to conspiracy prosecutions, Krulewitch v. United States, 1949,
. The issue may perhaps be more objectively considered if we approach it in terms other than the present case where it may be easy to sympathize with many of the defendants’ aims and be tempted to overlook, as incidental and peripheral, the illegal aspects of some of the means. It is not difficult to visualize conspirators whose basic ends are plainly illegal but who color them in order to obtain needed support of others, innocent and well intentioned, by adding lawful and popular objects.
. “I have never suggested or counseled or advocated that any one other person burn their draft card. In fact, I have mine in my pocket and will produce it if you wish. I do not advocate that people should break laws. What I simply try to say was that I admired the courage of someone who could act on his convictions knowing that he faces pretty stiff consequences.”
. See generally, Richardson, Freedom of Expression and the Function of Courts, 65 Harv.L.Rev. 1 (1951).
. We note Spock’s candid statement that direct urging of draft violations would in his opinion be “poor psychological practice.”
. Justice Harlan noted in Scales,
. The Court said in Scales,
. Accord, Hellman v. United States, 9 Cir., 1961,
. We do not believe that section 462(a) is overbroad or vague. See Gara v. United States, 6 Cir., 1949,
. Because we are discussing only the evidence of an agreement, the government’s vacillation about which part of the evidence it relied on cannot, without some special showing, be taken to have prejudiced the defendants. On the contrary, the government is entitled to rely on whatever agreement is shown by the evidence. Glasser v. United States, 1942,
. The Call and the cover letter are reproduced in full in an appendix hereto.
. See also n. 9, supra. By the same token, nothing is taught hy the frequently stressed fact that the signatories were in many instances persons of prominence, or that, apart from their common opposition to the war and to the draft, they were of disparate backgrounds and interests. See United States v. Lester, 3 Cir., 1960,
. In Frania the court said,
. Bozza v. United States, 1947,
. The Call, which was printed as a paid advertisement in two national publications, and circulated separately, underwent a few changes. In all instances in describing “forms of resistance” it stated, “[a]mong those already in the armed forces some are refusing to obey specific illegal and immoral orders.” In some editions it added, “some are absenting themselves without official leave.” Neither of these methods connotes legal resistance.
. Additionally, we note tliat defendant Goodman’s printed statement at the October 2 press conference contained the following: “The activity of the Resistance groups will be continuing beyond October 16, as more draft refusers come forward. It is our intention to parallel that development with continuing private and public activity in support of them.” (Emphasis suppl.).
. Were it necessary to go any further, the Washington demonstration, planned by Goodman and Coffin, completed the surrender of draft cards; those who “surrendered” them at the Arlington Street Church having been told that they had a right of recall. This act, of course, was not mere speech, and could be found to satisfy the requirement of a “course of conduct clearly undertaken for the specific purpose of rendering effective” the illegal objects of the agreement. Scales v. United States,
. In spite of this final remark, made then and at other times, by both Coffin and Goodman, they argue now that they were not guilty if they believed that their actions were legal and that any conviction would be unconstitutional. For this they cite Keegan v. United States, 1945,
. Willful nonpossession of a draft card is criminal. O’Brien v. United States, 1 Cir., 1967,
. See n. 16, supra.
. This, too, dissatisfies the dissent, which is unhappy whatever we do. Viz., because we recognize the necessity of special protection, thereby letting some defendants go free, we should not punish conspiracies in the field of speech at all; it is improper to apply the Scales and Noto safeguard because it is not strict enough; here we have applied it too strictly. Continuing with Ferber, infra, this conspiracy is too broad, it might have been proper to prosecute Ferber for a conspiracy limited to the Arlington Street Church matter; it is over-generous not to regard Arlington Street as a joining of the larger conspiracy. Basically, all this means is that the dissent refuses to draw distinctions.
. A similar situation involving a demonstrably active, as opposed to passive, participant in a bifarious organization, was faced in Heilman v. United States, supra note 19. While “Heilman was an exceedingly active member of the I’arty,”
. The government has not raised the point, nor do we see independently any reason to suppose that a new trial would result in a stronger case for the govern
. McNabb v. United States, 1943,
. Although no prejudice is apparent we can see no reason for individual treatment of “notices of classification” and “registration certificates.” It is true that these documents are listed separately in the statute and in the indictment, hut the record discloses no basis for distinction.
. “If no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules or with any applicable statute.”
. United Brotherhood of Carpenters and Joiners of America v. United States, 1947,
. Indeed, under our law a jury’s verdict, representing the common sense and wisdom of the community, is so highly regarded that the government' itself may insist on trial by jury rather than trial hy judge. Singer v. United States, 1965,
. “Such devices are used to impair or wholly take away the power of a jury to render a general verdict. One of the ancient, fundamental reasons for having general jury verdicts was to preserve the right of trial by jury as an indispensable part of a free government. Many of the most famous constitutional controversies in England revolved around'litigants’ insistence, particularly in seditious libel cases, that a jury had the right to render a general verdict without being compelled to return a number of subsidiary findings to support its general verdict. Some English jurors had to go to jail because they insisted upon their right to render general verdicts over the repeated commands of tyrannical judges not to do so. Buie 49 is but another means utilized by courts to weaken the constitutional power of juries and to vest judges with more power to decide cases according to their own judgments.”
Statement of Mr. Justice Black and Mr. Justice Douglas on the Rules of Civil Procedure and the Proposed Amendments,
. There are only two classes of cases in which such findings have been used. First, in certain cases the determination of a particular fact will be crucial to sentencing the defendants, as, for example, which of the several objects of a conspiracy, some felonies, some misdemeanors, the defendant agreed to, or the duration of a defendant’s participation in a conspiracy. United States v. Sobell, 2 Cir., 1963,
. Since the release of this opinion our attention has been called to the case of Commonwealth v. Bartholomew, 1950,
. If the procedure was, as we hold, prejudicial to the rights of the defendants, it is not saved by the propriety of the court’s motive, doubtless a strong one in this particular case where difficult legal issues were involved, cf. Yates v. United States, supra, of avoiding an appellate court’s dilemma due to ignorance of what theory the jury based its verdict upon. Stromberg v. California, 1931,
Dissenting Opinion
(dissenting in part).
I concur in that part of the court’s opinion dealing with the submission of special questions to the jury. However, I would grant acquittals to all appellants, "since, in my view, whatever substantive crimes of aiding, abetting, and counsel-ling, or whatever more specific conspiracies may have been committed, the crime of conspiracy, as charged in the indictment, was not. To apply conspiracy doctrine to these cases is, in my view, not compelled by conspiracy precedents, not consistent with First Amendment principles, not required to deal effectively with the hazard to public security, and not capable of discriminating application as between the culpable and the innocent.
A comparison of the structures of the court’s and of this separate opinion reveals much concerning our differences. The court begins by asking whether there is any reason or authority barring prosecutions for public conspiracy in the speech-opinion field; I begin by asking whether there is reason or authority which compels the application of the conspiracy sanction to the kind of organization, activity, and purposes involved in these cases. The court next identifies the valid public interest in timely self-protection and then addresses the various tests required to safeguard individual rights. I reverse the order at this point, seeking first to identify the hazards to individual freedom of expression and association, then addressing the question whether society can adequately protect its security in less constraining ways. Finally', the court finds, in weighing the evidence, that its guidelines are useful in distinguishing between the culpable conspirator and the protected advocate; I fail to see either the practicable utility of the tests or any basis for treating some of these appellants differently from others.
My starting point is the inquiry: how far has the application of conspiracy doctrine reached into the arena of overt associations involving the expression of opinion on public issues ? Do reason and authority compel its application to a wholly open, amorphous, and shifting association, having a broad focus of interest in changing public policy, and encompassing a wide spectrum of purposes, legal and illegal?
Historically, the doctrine of conspiracy was concerned with only a secret enterprise. Indeed, the word conspiracy devolves from the Latin “conspirare” meaning “to breathe together”. If a group, having illegal designs, desired to achieve its ends through surprise, thus depriving society of open confrontation, assessment, and preparation, it was both fair and necessary to give society the means to deal with it effectively, i. e., the ability to prosecute individuals who may never commit a substantive offense or never be caught in committing one, but whose responsibility for and participation in the enterprise are established. Effective response also meant the ability of the state to act in timely fashion — to forestall a serious threat to its safety and welfare before a debacle occurred. Finally, the core idea underlying the conspiracy theory is that disciplined, concerted action poses a greater threat to society than does individual or uncoordinated group effort in that larger numbers permit a division of labor, and discipline makes withdrawal from the enterprise less likely.
This reasoning applied to the early plotters against the King; to subversive movements such as the Communist Par
In the case of public “conspiracies” in the field of opinion, however, the historic rationale for prosecuting the instigators of a group effort loses much of its force. The fact that the group initially places itself at the mercy of the public marketplace of ideas, risking disapproval, recommends that it have the protection of the First Amendment in its effort to gain approval. That a public “agreement” has been arrived at is not so much the genesis of the undertaking or a key to identifying masterminds as it is the manifestation of common concern. There is no possibility of taking society by surprise. There is no difficulty in ascertaining the activists who bear watching.
One is tempted to say that the law should recognize no overt conspiracy in the sensitive area of public discussion and opinion. But this would be to go too far.
Do the cases indicate where the line should be drawn? Of course, closely-knit groups directed at the execution of orthodox criminal enterprises are clearly punishable as conspiracies. See, e. g., Direct Sales Co. v. United States,
Moving along the spectrum to associations which are at once more adventitious and amorphous in structure and wholly overt in their functioning, we find little authority. ' When such a combination has as its objective a specific enterprise devoted to a single illegal purpose, it is possible to concede that a culpable conspiracy has been formed. The planning and execution of the Arlington Street Church draft card turn-in might have been such a conspiracy, assuming that the timing, publicity, and foreseeable impact provided a sufficient basis for finding a high probability of substantial harm. In such a case the participants would have been a discrete group; the objective of the affair would have been illegal (abetting turn-ins); and it might well be that one who planned but did not participate (and thus did not commit a substantive offense of aiding or abetting or counselling) would be indictable as a conspirator.
Such is the hypothetical case put by the court of a lynching-bent group of vigilantes. Openness of course could not pasteurize the illegality of purpose. The example, however, suffers in the limited and subordinate extent to which speech is involved. More apposite to the sharply defined open conspiracy in the free speech area is Fraina v. United States,
But we face here something quite different from an indictment for an overt promotion of a specific event for an overriding illegal purpose. Here we confront a “conspiracy” where (1) the effort was completely public; (2) the issues were all in the public domain; (3) the group was ill-defined,, shifting, with many affiliations ; (4) the purposes in the “agreement” are both legal and illegal; and (5) the need for additional evidence to inculpate — notwithstanding the absence of a statutory requirement for an overt act — is recognized.
There is no legal precedent for applying the conspiracy theory to such an effort. This is, to my knowledge, the first attempt to use conspiracy as a prosecutorial device in such circumstances. The attempt to distill the several individual lessons taught by prior cases, mostly old, and combine them in such a case as
By so proceeding, the court goes far to depriving the “agreement” of significance. Indeed, it upholds the indictment as to only one of the original four signers of the “Call” and acquits another original signer.
What are the implications of the three methods of activating one’s signature to the “Call” to status as a full-fledged conspirator? To say that prior or subsequent unambiguous statements change the color of the litmus is to say that while one exercise of First Amendment rights is protected, two are not.
In footnote 12 of the opinion the court recognizes that judicial hostility to conspiracy prosecutions has been occasioned by the government’s overenthusiastic use of the doctrine. That fact coupled with the absence of clear definitions of the elements of conspiracy creates a serious risk. I see no reason to inject that risk into the area of public discussion. Its chilling effect is obvious. It would be small comfort to be told that one could still be vindicated via the appellate process after an expenditure of time and money in substantial amounts.
There is also, in my view, a defect in the government’s case arising from elements of both overbreadth and vagueness. Not, perhaps in the traditional sense of overbreadth of a statute. But in the sense of overbreadth in the indictment. Although the matter is not entirely free from doubt, it may be, as the court suggests in footnote 21 of its opinion that § 462(a) is not overbroad or vague. But when the conspiracy doctrine is superimposed on § 462(a), and especially in this case, grave problems are presented.
In Ashton v. Kentucky,
Conspiracy is an ancient doctrine. It is, however, not well-defined and experience teaches that even its traditional limitations tend to disappear. See Developments in the Law, Criminal Conspiracy, 72 Harv.L.Rev. 920, 933-34 (1959). In the present case the absence of definition is perhaps best illustrated by comparing the original indictment with the government’s subsequent shift in position in conceding that there were also perhaps several smaller conspiracies. And in addition to the government’s theories, the court takes yet a third view.
To summarize, the hazards to free speech from the sequential open-endedness of the specific intent formulas and the lateral open-endedness of overbreadth and vagueness are not lightly to be tolerated. We should be slow to grant grudgingly today what may become license tomorrow. This leads to the question whether the danger to society justifies such circumscribing of First Amendment rights.
In addressing this question, both the court and I make reciprocal concessions. I concede that there is a need to maintain a peace time army, that a registrant may be convicted for violation of the draft laws, that one may be punished for encouraging such violation, that there exists a danger of widespread disaffection and resistance to the draft laws, and that the government is entitled to take all reasonable steps to protect itself before such disaffection becomes epidemic. The court concedes that speech need not be forbidden because it bears a causal relation to ultimate unlawful acts, and that the First Amendment rights of free speech and association are to prevail unless the government’s interest in preventing substantive crimes is substantial or unless there is a “less restrictive alternative” to deal with the problem, citing United States v. Robel,
Here we part company, for the court attends only to one side of the balance. Into that scale it puts four weights: (1) the nation’s interest in raising an army; (2) the right of government, in view of “the potency of conspiratorial conduct”, not to await the commission of substantive offenses; (3) the effectiveness as “incitement” of appellants’ call for immediate action on a large number of sympathetic young men; and (4) the fact that Congress has authorized the conspiracy sanction.
Congressional authorization of the conspiracy sanction cannot, in my view, weigh heavily on the scales once a genuine issue is raised as to the availability of a less restrictive alternative. When, however, such a threat appears substantial, courts must ask if there are other approaches which “more precisely and narrowly” serve the same governmental interest. See United States v. O’Brien,
Indeed, the question here is not really one of Congress’ authority. In § 462(a) Congress has provided for the use of the conspiracy sanction, and I do not quarrel with its application in a proper case. All that can be drawn from the statute is that Congress authorized the use of conspiracy where appropriate to protect the nation’s interest in raising an army. If it could be imagined that Congress intended to apply conspiracy to the facts of this case, my answer is that the First Amendment denies it the power to do so.
Had the appellants individually or collectively been indicted or tried for their separate offenses, the task would have been much simpler, as a reading of the transcript convincingly illustrates. The government would not have been delayed in time. It could have chosen whoever seemed most significant for psychological impact. Its proof against each would have been narrowly confined. It would not have faced the difficulties of special instructions on the occasion of the admission of evidence and on the occasion of the charge. I observe also that the penalty for conspiracy under § 462 (a) is not greater than that for the substantive offenses. Moreover, the government could have chosen a specific incident for the focus of a conspiracy — as, for an arguable example, the Arlington Church turn-in or the Department of Justice card collection ceremony.
Nowhere does the court indicate why either approach could not have served the societal interest equally well. If “less restrictive alternative” is to have any real meaning, courts should examine with specificity the utility of the rifle before resort is had to the shotgun.
In short, the court’s lack of emphasis on the “agreement” element results in its applying a form of substantive offense prosecution. The difference is — and it is a critical one — that a defendant may be punished not only for illegal acts but also on the basis of protected speech and legal acts. I conclude that prosecution for substantive offenses or for a narrow, discrete conspiracy, would fully serve the government’s interest — perhaps even more than the court’s sweeping conspiracy theory — without delivering such a serious blow to First Amendment freedoms.
To the extent that the court’s acquittal of the defendants Spock and Ferber is thought to illustrate the discriminating capacity of its rationale to separate the sheep from the goats, I respectfully take issue. In my view the acquittals are not justified by the court’s own guidelines.
The court acquits the defendant Spock, a man of great public visibility,
On the basis of the testimony of both Spock and FBI agents who interviewed him, the jury could have found that Spock worked with several organizations supporting “draft resistance”, that he undertook his activities so that others would be encouraged to resist, and that his participation in the Whitehall demonstration was intended “to interfere with the administration of the Selective Service Act” and to frustrate the raising of troops.
Even assuming that Spock did not commit any illegal acts, there is no reason why the jury could not find his attendance at Washington on October 20 and his involvement at Whitehall to be legal acts clearly undertaken to advance the illegal aims of the conspiracy. Indeed, in view of the remarks attributed to Spock, the jury would clearly have been justified in so finding.
I am of course mindful of the lesson of Scales, swpra, and Noto, supra, that one may belong to a group having illegal aspects and not be found to be a conspirator. But in my view the court’s acquittal of Spock demonstrates the inapplicability of Scales to this case — for a realistic approach to Scales would result in the conviction of Spock and many others who signed the “Call” — that is, if the unambiguous statements and subsequent legal acts tests have any meaning. The court’s action underscores my conviction that in the First Amendment area finely honed distinctions do not serve as effective safeguards because they do not provide a basis for prediction of the legal consequences of future conduct.
The court’s acquittal of Ferber does not, as in the case of Spock, stem from application of the tests for specific intent. The court does not reach that point, having determined — on conventional conspiracy analysis — that there was insufficient evidence of Ferber’s having at any time joined the conspiracy. In my view this conclusion is not warranted by precedent or theory.
It is true, of. course, that Ferber did not sign the “Call”, but it is well settled that one may join a conspiracy subsequent to its original formation by adopting its goals and adhering to its purposes. Blumenthal v. United States,
In my view the court’s acquittal of Spock and Ferber is the product of its own generosity rather than the inevitable result of its rationale. Were this only a disagreement over the application of legal principles, perhaps there would not be so much cause for concern. But this is a landmark case and no one, I take it, supposes that this will be the last attempt by the government to use the conspiracy weapon. The government has cast a wide net and caught only two fish. My objection is not that more were not caught but that the government can try again on another day in another court
APPENDIX
A Call to Resist Illegitimate Authority
To the young men of America, to the whole of the American people, and to all men of good will everywhere:
1. An ever growing number of young American men are finding that the American war in Vietnam so outrages their deepest moral and religious sense that they cannot contribute to it in any way. We share their moral outrage.
2. We further believe that the war is unconstitutional and illegal. Congress has not declared a war as required by the Constitution. Moreover, under the Constitution, treaties signed by the President and ratified by the Senate have the same force as the Constitution itself. The Charter of the United Nations is such a treaty. The Charter specifically obligates the United States to refrain from force or the threat of force in international relations. It requires member states to exhaust every peaceful means of settling disputes and to submit disputes which cannot be settled peacefully to the Security Council. The United States has systematically violated all of these Charter provisions for thirteen years.
3. Moreover, this war violates international agreements, treaties and principles of law which the United States Government has solemnly endorsed. The combat role of the United States troops in Vietnam violates the Geneva Accords of 1954 which our government pledged to support but has since subverted. The destruction of rice, crops and livestock; the burning and bulldozing of entire villages consisting exclusively of civilian structures; the interning of civilian non-combatants in concentration camps; the summary executions of civilians in captured villages who could not produce satisfactory evidence of their loyalties or did not wish to be removed to concentration camps; the slaughter of peasants who dared to stand up in their fields and shake their fists at American helicopters; — these are all actions of the kind which the United States and the other victorious powers of World War II decláred to be crimes against humanity for which individuals were to be held personally responsible even when acting under the orders of their governments and for which Germans were sentenced at Nuremberg to long prison terms and death. The prohibition of such acts as war crimes was incorporated in treaty law by the Geneva Conventions of 1949, ratified by the United States. These are commitments to other countries and to Mankind, and they would claim our allegiance even if Congress should declare war.
4. We also believe it is an unconstitutional denial of religious liberty and equal protection of the laws to withhold draft exemption from men whose religious or profound philosophical beliefs are opposed to what in the Western religious tradition have been long known as unjust wars.
5. Therefore, we believe on all these grounds that every free man has a legal right and a moral duty to exert every effort to end this war, to avoid collusion with it, and to encourage others to do the same. Young men in the armed forces or threatened with the draft face the most excruciating choices. For them various forms of resistance risk separation from their families and their country, destruction of their careers, loss of their freedom and loss of their lives. Each must choose the course of resistance dictated by his conscience and circumstances. Among those already in the armedforces some are refusing to obey specific illegal and immoral orders, some are attempting to educate their fellow servicemen on the murderous and barbarous nature of the war, some are absenting themselves without official leave. Among those not in the armed forces some are applying for status as conscientious objectors to American aggression in Vietnam, some are refusing to be inducted. Among both groups some are resisting openly and paying a heavy penalty, some are organizing more resistance within the United States and some have sought sanctuary in other countries.
6. We believe that each of these forms of resistance against illegitimate authority is courageous and justified. Many of us believe that open resistance to the war and the draft is the course of action most likely to strengthen the moral resolve with which all of us can oppose the war and most likely to bring an end to the war.
7. We will continue to lend our support to those who undertake resistance to this war. We will raise funds to organize draft resistance unions, to supply legal defense and bail, to support families and otherwise aid resistance to the war in whatever ways may seem appropriate.
8. We firmly believe that our statement is the sort of speech that under the First Amendment must be free, and that the actions we will undertake are as legal as is the war resistance of the young men themselves. But we recognize that the courts may find otherwise, and that if so we might all be liable to prosecution and severe punishment. In any case, we feel that we cannot shrink from fulfilling our responsibilities to the youth whom many of us teach, to the country whose freedom we cherish, and to the ancient traditions of religion and philosophy which we strive to preserve in this generation.
9. We call upon all men of good will to join us in this confrontation with immoral authority. Especially we call upon the universities to fulfill their mission of enlightenment and religious organizations to honor their heritage of brotherhood. Now is the time to resist.
For further information contact
RESIST, 166-5th Ave., NYC
10010/675-2270
* Printed by volunteer labor
Resist
Room 210, 166 Fifth Avenue, New York
August 1967
Dear Friend:
The time has come to resist the war in Vietnam.
The enclosed statement, “A Call to Resist Illegitimate Authority,” constitutes a first step toward the more vigorous response to the war which the time requires of us. Those who have signed, including ourselves, have pledged themselves to extend material and moral support to young men who are directly resisting the war. Many of us are further committed to joining those young men in acts of civil disobedience.
Over 200 persons have already signed the statement. The statement and the names of the signers will be made public at the end of September through a press conference held by a committee of prominent signers and through ads in The New York Review of Books and The New Republic.
We ask you to join us by signing “A Call to Resist Illegitimate Authority.” More than that, we ask you to commit yourself to the fullest possible extent to the tasks of resisting the war and bringing it to a halt.
■ There is an urgent need for funds to bring assistance to draft resisters and to those in the armed forces who refuse to fight in Vietnam. Will you help as generously as you can?
We can all do something to end this war. And we must.
(s) Noam Chomsky (s) Dwight Macdonald
Noam Chomsky Dwight Macdonald
(s) William S. Coffin, Jr. (s) Benjamin Spock
William S. Coffin, Jr. Benjamin Spock
clip and send to: RESIST /Em. 510/166 5th Ave. /NYC 10010
......I wish to sign “A Call to Resist Illegitimate Authority” and am willing to have my endorsement made public.
...... I enclose a contribution of $..........to support the work of RESIST. (Please make checks payable to RESIST.)
......I am interested in organizing or joining a group in my community to support young men directly resisting the war.
Sincerely,
name .........................................................
profession and title.............................................
address .......................................................
city .......................... state ..........................
phone .................... (office) .................... (home)
. The court, in its footnote 9, criticizes my reference to discipline as a traditional component of conspiracy, citing Interstate Circuit, Inc. v. United States,
. Nevertheless I confess to sharing the bias expressed by Mr. Justice Harlan, dissenting in Grunewald v. United States,
This statement was the manifestation of Justice Harlan’s concern with the limitless capacity of conspiracy theory to expand itself. Specifically, the remark was in response to an argument that conspiracy could be inferred from the mere existence of concealment of activities.
In my view the statement also reflects an intuitive grasp of the limits of conspiracy. Just as there is reason to fear the expansion of conspiracy based on the mere existence of secrecy, there is equal justification — indeed, more — in fearing expansion of conspiracy into the realm of public discussion.
. See, e. g., Dennis v. United States,
The “public” conspiracy cases cited by the court would appear to fall within this category in that in each ease the efforts of a cohesive group were aimed at a single illegal goal — the frustration of conscription. See, e. g., Wells v. United States,
Even within the limits of a cohesive group and a single illegal purpose I question whether the above cases would be sound authority today — not because age
. See, e. g., Scales v. United States,
. While a half century’s age is not necessarily fatal, Fraina would not appear to have outlived its time. Two men addressed a meeting each detailing why he was a conscientious objector. A pamphlet describing the philosophy and proper response of the conscientious objector was distributed. The court, blessedly oblivious of contemporary meetings where a goodly part of the audience come to heckle, was able to say that if a meeting is called to hear certain speakers on a certain subject, “[I]t is impossible not to infer a combination in thought among the platform occupiers and their helpers.”
. This analysis is, I believe, consistent with the historic reluctance, recognized by the court, to expand conspiracy law. See, e. g., Von Moltke v. Gillies,
. Disconcertingly, however, the court acquits the defendant Ferber primarily because he did not sign the “Call”.
. I assume that if X were to say unambiguously, before or after signing the “Call”, “What I would really like to see is every local draft board deluged with turn-ins,” he becomes a conspirator on the happening of the later event although each statement is, by itself, protected. Moreover, the period of time between the two statements is apparently subject to no statute of limitations.
. Counsel for defendants were faced alternatively, and at different times, with theories that the Call was the agreement and ipso facto proof of the conspiracy, that specific events were themselves the basis for smaller conspiracies, and finally that evidence of specific intent as demonstrated by their subsequent speech and legal acts was to be the ultimate ground for determination of their guilt.
. Indeed, this principle is particularly applicable here, where, as the court concedes, the jury may not have been ade
. For the analogous situation where the application of otherwise valid regulations was held invalid as applied, see Tick Wo v. Hopkins,
. Spock was well aware of his ability to generate 'publicity, and lie admitted that this was the reason for his attendance at so many press conferences and public forums.
. Spock denied describing his participation in these terms but the jury was not obliged to believe him.
. The court’s acquittal of Spock and Ferber poses a hard question in terms of the realities of such a trial as that below. While trial judges must often carry nice legal distinctions in their minds while absorbing great quantities of evidence, it is difficult for me to imagine that, at the close of the government’s case, the district judge would have granted or could have been expected to grant two motions for acquittal and deny others.