United States v. Stephen Mesarosh, Also Known as Steve Nelson, William Albertson, Benjamin Lowell Careathers, James Hulse Dolsen and Irving Weissman

of America UNITED STATES

Stephen MESAROSH, Known as also Nelson, Albertson, Ben Steve jamin William Careathers, James Hulse Lowell Irving Weissman, Appel Dolsen and lants.

Nos. 11169-11173. Appeals

United States Court of

Third Circuit.

Argued June 1954.

Decided June 1955.

Rehearing Aug. 11, Denied though by prosecution,

this Smith Act no means novel to law. For reasons follow, concluded after examination errors judgments of conviction should be McBride, Philadelphia, Pa., Thomas D. affirmed. City, Ralph Donner, York Frank J. New First, appellants contend Pa., appel- Powe, Philadelphia, for E. question guilt should not have been lants. jury submitted to the because sufficient Anderson, Asst. U. S. D. Malcolm evidence of certain essential elements (John Atty., Pittsburgh, Mc- Pa. W. prosecution’s lacking. case was Pa., Pittsburgh, Ilvaine, Atty., Specifically, urged it is U. S. the evidence Hundley, jury Francis L. William- did not William warrant G. conclusions Attorneys, agreement Bailey, son, illegal De- purposes K. Lawrence existed C., among partment Washington, Justice, appellants, ap- D. nor that each pellant possessed illegal brief), appellee. necessary on the in- tent. Judge, BIGGS, and Chief Before McLAUGHLIN, government MARIS, GOODRICH, The contended that HASTIE, appellants KALODNER, district, national, and as and STALEY state Judges. Party Circuit functionaries of the Communist agreed to teach аnd advocate the Marx- Judge. STALEY, Circuit doctrines, doctrines, ist-Leninist according judgments appeals government, from These are called for appellants, the violent conviction entered and forceful overthrow of the Stephen (also speedily known as Steve Mesarosh as circumstances permit. Nelson), Albertson, Benjamin Certainly, William there was suffi- Dolsen, Careathers, purpose Lowell Hulse cient evidence James that the of the re- Irving Weissman, Party and after a had constituted Communist in 1945 guilty conspiring prin- found them to un- was return to the fundamental ciples lawfully, wilfully knowingly advo- of Marxism-Leninism. So much duty necessity by cate of was admitted and teach the one of the defense wit- overthrowing destroying agreement nesses. the Govern- Whether the to teach by agree- and Marxism-Leninism ment the United force fact an States causing violence, ment intent teach the violent forceful aforesaid overthrow destruction of overthrow was the issue, point of the United States and on this the Government evidence speedily force and as cir- was more than violence sufficient. permit.1

cumstances would Party A former Communist function- ary appellants objec the national and state The raise levels numerous testi- judgments fied that a return tions to the fundamental conviction. principles objections really Some of the Marxism-Leninism are similar teaching passed upon those meant return to other federal courts advocat- commonly the forceful cases known and violent overthrow Smith Act government. prosecution objections unique cases.2 Other in- brought States, 1951, 1. The 2. See Dennis v. United indictment under 341 two 494, 857, 1137; U.S. 71 S.Ct. 95 L.Ed. statutes because of a revision in the Fed Flynn, Cir., 1954, 2 United States v. eral Criminal Code. 216 354, denied, 1955, charged F.2d certiorari 348 under Section 3 of the U.S. Smith Act, (1940 ed.) 295; 18 11§ U.S.C. while said 75 S.Ct. Frankfeld v. United effective; States, Cir., 1952, of said section thereafter, Act remained 4 F.2d 198 certio- denied, 1953, un rari 344 U.S. 73 S.Ct. (1952 ed.), gen 710; 18 371 § der U.S.C. L.Ed. 97 United v. Den- nis, Cir., 1950, 201; statute. eral 183 F.2d Yates v. States, Cir., F.2d 146. passages pam- Ample likewise existed numerous troduced phlets to establish the the Communist intent of each and books used prin- appellant. Party posi all fundamental held to show that the national, ciples as tions of rank in the included at of Marxism-Leninism sine, state, testimony levels, qua рroletarian revolu- or district and the non to the presented showed them to be most active tion and violent overthrow a forceful leaders, instructors, organizers, It is to at the United States Government. practically pamphlets times on emphasized a full-time basis prosecution were activities. books introduced relic room not found in the ancient Evidence of these numerous roles as They library. public docu- were some Party active leaders without more by being distributed ments used and have been each sufficient to attribute to including Party members, appellants, for knowledge Party’s defendant a full of the addition, Party classes. instruction in bring purpose to forceful and about the to declarations witnesses testified government. violent overthrow of the by Party de- instructions classroom But, addition, appellant in as to each supported the which fendants and others there was declarations advocacy Marxism- view that their would sustain a conclusion that violent overthrow Leninism included the taught believed and that violent revolu- government. necessary pur- tion was to effect thеir poses. were At least three them showed The evidence declaring quoted vio- that force and considered doctrines Marxist-Leninist lence were to achieve success. organization and ac principles of certain Com- Another in 1950 declared that Party hope could tion essential before gained Party youth munist control staging proletar in successful being able in the Soviet Union before and violence. force ian revolution wage 1917, the successful revolution Party of was shown that the Communist gain Party had to control of and so the basic these utilized the United States youth in United in order to States principles. techniques Democratic struggle. wage fifth a successful The discipline was strict which centralism sabotage necessity spoke Party among was members maintained key specific plants its use to knock out organization. Party the cornerstone came. These various when the time ac Party of its much concentrated declarations, appellants’ with combined key among tivity industries. workers Party activity, as evi- more than sufficed underground operations Plans illеgal appellant’s intent. of each dence steps taken Party prepared and were They of mem- were not convicted because plans. implement holding bership office or the these, elements would have us believe per se, that there was no violation so really connection innocent 4(f) Activities of the Subversive Section government by overthrow of 1950, 50 U.S.C.A. 783 Act of § Control was evi But there force and' violence. guilt per- (f). was to be Their shown laying groundwork dence that the this of. imputed individual and not sonal and considered literature as es associations, merely mem- on the basis forceful sential to successful overthrow. bership, was said or official title. What finding quite justified in Harlan) Judge (now Justice Harlan alleged Party conspirators that, as the 1954, Flynn, Cir., 2 v. United actively participating group 354, 360, applicable 216 F.2d gave implemented effect case: very teachings, purpose true, appel- actually indeed as the “It the forceful over intent assert, government, under criminal rather than lants throw involving specific proof of a of devitalized statutes discussion Com academic person principles. be convicted intent a munist simply ‘imputed’ Pierce, on the of an D.C.1917, basis United States v. 878, shown affirmed, intent. He himself must be 1920, F. 252 U.S. 239, requisite 205, to have had 542; intent. 40 S.Ct. 64 L.Ed. But it does not follow from this that Nosowitz States, Cir., v. United proof 1922, of such an intent is limited to 282 F. 575. And the rule ad- particular person’s mitting own acts acts and declarations of co- declarations, prose- conspirators whether the furtherance conspiracy against cution be for a crime or substantive all defendants For, conspiracy. applies for the crime of equally to motive and intent as Justice Jackson said in Cramer Wiborg ‍​‌​‌‌‌​​​‌​‌​​‌‌​‌​‌‌​​‌‌‌​​‌​​‌‌‌‌‌​‌​‌‌‌‌​​​‌​‍as to other issues. See States, 1945, 1, v. United 325 U.S. States, 1896, 163 U.S. 32-33, 65 S.Ct. L.Ed. [89 1127, 1197, 16 S.Ct. 41 L.Ed. 289; ‘Actions of the accused are 1441]: States, Pinkerton v. United place many set in time and rela- 640, 647, 328 U.S. 66 S.Ct. tionships. Environment illuminates 1180, 90 L.Ed. 1489.” meaning acts, as context does Though the declarations up that of words. What a man is pre-1945, were the evidence was none may considering be clear from his significant theless relevant and as to in by themselves; bare acts often it tent. Acts and appel declarations made clear when know the rec- prior lants significant period to the indictment were iprocity sequence and of his acts determining intent. See interchange others, with those the Dennis, United States page 183 F.2d at give another, between him and the 231. here, and take the situation.’ So discussing sufficiency the relationships the evi- the the defendants dence, we have acting assumed that all evidence and of others them; in concert with properly jury. was Appel- before the another, one with the defend- lants, however, contend that certain evi- positions responsibility ants’ dence should not have been Party, admitted. the activi- Communist carrying objec- ties in forward the charged The indictment on or party, tives of the and the nature of April 1, 1945, about and thereafter the objectives those properly were all matters appellants, along with other named indi- upon to be considered the persons viduals and other divers un- any particular ‘intent’ defendant. known, conspired to teach and advocate And the declarations of other co-con- the violent and forceful overthrow of spirators, in Government, furtherance of con- the United States and that spiracy part purview, appellants and within said co-conspirators and footing. stand on were to no become mem- different To bers, officers and permit functionaries of the such declarations to be con- knowing Party purpose Communist sidered on the issue of the ‘intent’ Party and were to assume re- particular defendant, prima of a sponsibility carrying plans out its conspiracy among case of facie appellants appellants and activities. The use the having and others split-off point date for their out, impute made was not to to such objections. others, defendant the intent of but simply was to include such declara- Certain evidence acts and dec among tions circumstances prior larations against to 1945 was admitted might jury which the consider in appellants illegal all to show the determining purposes Party. individual intent of of the Communist particular Party purposes prior defendant. This was to 1945 were entirely proper. ‘Intent’ as well as considered relevant the basis that the Party purposes prior other element оf a crime aims proved post-1945 pe- circumstantial same as the evidence. were the judge Accordingly, There abundant evi- activities.” riod. you Party point dence that jury, I instruct reconstituted “At this you purposes have the identical not satisfied if objectives of earlier On proof Communist had. either the aims 1945, continuing theory July, after the Communist you theory, 1944, evi- then return to basic doctrine same as before were the having sufficient, disregard dence was relevant and all the evidence should properly could which took considered and events with facts do pre-1945 court’s place declarations line with the and the before charge. by al- made statements leged co-conspirators before appellants much contend that dealing on the evidence the case decide pre-1945 evidence violates April which occurred after with facts hearsay hearsay has rule. But the bar however, may, event, you In this application specific evi items of statements done consider acts refer. dence which the prior to 1945 each defendant made prior evidence of declarations acts and reflecting upon solely bearing probative of the was not admitted as you defendant, he find of that intent truth of declarations. Whether al- a member remained became or a truth not the declarations stated leged April, immaterial. fact was The relevant knowledge pur- criminal ma were made. The the declarations poses conspiracy.” Party’s purposes terial issue was the teachings. Party pur- Thus, identity and illustrate of to of The evidence objection by appel purposes poses after the first enumerated with the before 1945 lants, Lautner’s was the witness because there cite was relevant Hungarian testimony jury in 1930 at a to con- the sufficient evidence training school, conspiracy in the Communist one Wein the clude that taught uninterrupted similar to con- stock that revolutions was an indictment place would take had been the Russian revolution which tinuation Indeed, capitalism this on until a world-wide scale time. in existence for some along every country teachings, destroyed in and identity purposes would be many re in- Communist Pаrties were the same that all fact quired accept conditions certain and influential dividuals were active Party Interna pre-1945 to the Communist the recon- admission the both Party read itself evi- tional. These conditions were was stituted jury. or not a world-wide a continu- Whether was the that the dence changed prime for the destruc revolution was never one which capitalism identity purposes whether or not objective. tion of But really appellants if, neces conditions were the outlined relevant even was also sary interrupted fact in issue. immaterial to the contend, were was important fact that such was during was of the Com- The existence the brief Party taught by at leaders advocated Association because Political munist Party schools. clearly purposes of showed the evidence Party in Communist the reconstituted objec The same true prior purposes of 1945 to be same of some made as to declarations tions by interruption Party before example, appellants. wit For appellant Political Association. Communist Mazzei testified that ness Association Political instructed class Communist in 1943 Dolsen having error,” come about could “in abandoned revolution considered government. principles” of Marxism-Len- overthrow violent the “basic passages Party read also certain inism, witness the reconstituted was to The guarantee had read which Dolsen re-establishment of the a “the book certainly program, policies ad- This of its evidence content class. Marxist necting significant question to note links. It is on the missible Dolsen seq., acknowledged defense) Wigmore (by (6 et here the his intent § principle 1940), was like- of democratic centralism 3d ed. but the evidence objective Party prove which Different functioned. wise admissible to Party Party’s teachings, groups reli- almost were bound fact of the giously Wigmore abiding by hearsay. 1766. leaders’ deci- § pre-1945 too re- sions and evidence Nor instructions. The was the justified in- prosecution’s democratic centralism mote to be material. The Party any Party instruc- teach- ference that leader or links in evidence contained essentially ings find a con- tor took his for the orders sufficient teachings appellants tinuity Party purposes provided same sources that through up indictment with was imma- their instructions. So it the 1930’s might period. never have did limit terial that The court below testimony, co-conspira- pre-1945 known or seen some of the effect of some of the training appellant tors acts and declarations Nelson’s whose say in- Lenin in Moscow admitted. It is nonsense School question particular individual’s hands dividuals must meet and shake limited, evidence, co-conspirators. did note so order to We intent. Such hearsay rule, charged conspiracy course, not, violate the that the indictment persons appellants, sufficient named since a other nor was it too remote continuity persons participation Nelson unknown to the divers other grand jury. Party was shown. activities pages Dennis, 231- at 183 F.2d States v. testimony by admission of (a witness former Com Lautner Party classes, mem munist instructor in pre-1945 evidence had the Even Party’s ber of the National Review Com hearsay, ad have been it would Review mission and New York State and declarations These acts missible. meaning Commission) as to ap occurred bеfore was not terms in the Constitution pellants members of the became error. judge discretion the Wide rests joins one when admissible because were opinion evi as to the admission of knowing existing the conspiracy an Dennis, v. 183 dence. States See United conspiracy illegal objectives, takes the he Testimony page similar F.2d at 229. including is, prior and declara acts as it given by also defense to Lautner’s was by co-conspirators com which are tions petent properly al Davis. The court witness Frankfeld him. evidence testify. both lowed to 679; States, Lefco v. F.2d 198 v. United 66; 1934, Cir., States, appellants F.2d Next, 74 3 attack the United 1926, Cir., States, they say 2 Riper judgments v. United there was no because Van course, danger acts and present Of substan 13 F.2d 961. clear co-conspirators made necessary to sustain declarations evil which is tive already appellants members were all It has while their convictions. Supreme same rule Party This that a admissible. Court are determined objections organized appellants’ highly to conspiracy, applicable and wide to co-conspirators rigid disciplinе well- spread, declarations acts and members, appellants, how advocate the violent after 1945. The trained made government is a suffi co-conspira overthrow ciently grave ever, that before the contend justify invasion evil to applicable, must in there be tor rule is rights. Dennis v. Amendment of First dependent of their connection evidence 494, States, 71 conspiracy; U.S. United but such connection lacking 1137. See 95 L.Ed. in the evidence. As S.Ct. not pages Flynn, 366 earlier, 216 F.2d at States v. pointed the evidence as to out conspiracy in this case was played appellants The 367. ac roles charged conspiracy in the Den- provide same the con- the was sufficient tivities advocacy Flynn nis and and our cases so far relations with the Communist World concerned. had moved from war.” cold to hot page 216 F.2d at 367. The court district argued appellants The have was concerned with world dur- conditions conspiracy the Dennis should consid be ing substantially period the same as that significantly different ered because Flynn case, in the since indictment appellants plainly in a “these this case was filed months about seven position power policy-mak national Flynn after the indictment. ing” agreement Dennis “the agreement policy- According appellants, case was an aof small to the making group finding the court within the Communist erred in a clear present danger responsibility permitting assume a without hearing given appel acts indictment.” But which would have rung conspirator opportunity upon lants produce hierarchal which a an evidence perches present danger the that it is no clear is not because relevant existed. conspiracy pointed out, As question have existence and nature danger. gives ac court had to to the determine was the set rise ting ringleaders tivities of constitute in which thrived. danger Although present clear and because the court faced with ‍​‌​‌‌‌​​​‌​‌​​‌‌​‌​‌‌​​‌‌‌​​‌​​‌‌‌‌‌​‌​‌‌‌‌​​​‌​‍was thus authority fact, objective into the tentacles of reach determination an give which, country hearing parts there direction all need subordinates, circumstances, the under without to their whom would have helpless. probably In been would be fruitless. The which the leaders cоnspiracy, larger appellants effect, would have offered would likely imminent more been immaterial court’s more and the view of the group knowledge general danger, of.that members undoubted world all conditions, coupled possessing intent with considerations guilty. uprisings equally of “similar in other countries touch-and-go our rela nature of really open only question tions such with countries with whom verdict district court ideological A doctrines were attuned.” setting in which the world dis court need not on all hear evidence Judge said in United As Harlan thrived. hearing puted where, here, points Flynn, page F.2d at Wig- gesture. at best idle destroy the Gov- “Where more 3d ed. § involved, violence is ernment force following object dan- we think that the ‘clear concerning Dennis, part charge ger’ concept, in of the the court’s as defined danger: present page page at clear and 341 U.S. F.2d at pages 867-868, no connotes at 71 S.Ct. you “If find that the Government’s setting in the which than that the respect more ad- with to the contention conspired is as to such defendants have , force use of and violence vocated reasonably that conclusion to the accomplish lead the Communist attempt teachings may in an result revolutionary change capital- a overthrow.” at ism to socialism established your beyond a reason- district court knew Su- satisfaction doubt, inten- and that was the preme had determined that world able it Court party accomplish (peri- such and. tion between 1945 of conditions speedily indictment) as circum- a the Dennis were such revolution od of permit, req- that situation conspiracy stances will constituted the present dan- danger, and, a clear and as was stated in the * constitutes uisite “ * * ger justifies danger application Flynn case, if was which charge hardly present of to vio- in it can clear thought late Act U.S.C. [18 less in the Smith § to have been raging of such a existence conflict 2385]. the Korean was when average age of jury organized conspiracy, with a with highly subject of aware them. two would not been rigidly disciplined members jury addition, cautioned that was feel that when to call the leaders finding” concern them. “latter not opportune did ac- time has become tiоn, accompanied Again lengthy emphasize re- that a we of nature innocence, appellants’ view of claims uprisings conditions, similar world mentioning specifically their reasons touch- in other countries denying con- almost each for tention, and-go with relations nature of our ideologi- court after was made such with whom countries charge. portion attuned, above-mentioned consti- cal doctrines were danger. present a clear and tutes Weissman, Appellants Albert- finding “This latter is a matter of allege error in son Careathers law, you with which need not con- grant motions refusal to district court’s yourselves. here, cern I refer to it change for severance for a of venue and Supreme did Court of the appellants Nelson and of their trial from case, United States in a recent to Dolsen, previously been con who had you provisions indicate to Pittsburgh (site trial victed in of the First Amendment to Con- violating present case) state sedi regard right stitution with tion is claimed severance laws. speech free does itself author- stig there a because teaching izе the of overthrow of the guilt hovering ma of over Nelson government by force and violence.” conviction Dolsen as a result the state argued It is above is to the others. which would be transferred prejudicial because the court informed course, argument, presupposes jury finding of his reasons and Dolsen could not be that Nelson danger present a clear and existed. given a fair trial in the federal court. First, charge, full view the we dis they could, certainly if For then agree appellants’ with contention that stigma hostility pre prejudicial judge telling jury he had might as to stain vail them already decided that there existed “a presumption of innocence to Weiss- organized highly rigidly man, Ac Albertson and Careathers. disciplined subject to members call when cordingly, shall consider the leaders feel that the time become has none of the error that since * * opportune for action This fair trial in the Western could secure must be read in connection with the change Pennsylvania, a District government’s earlier statement about the granted. for all should have venue contention. Thus the existence against The verdict Dolsen the state as the court outlined as court occurred fourteen months before throughout prosecution contended jury selection the first federal was for the to determine and began and the verdict Nel did, the court stated that it would be son nine months earlier. There awas danger clear and view however, mistrial, because the trial world conditions. began judge’s death, and the case anew. charge jury part began, This the selection of the was later fol- When the in by lengthy appeal new lowed during the trial which this a review the is evidence taken, quite elapsed over seventeen which it was made clear months had jury any appellants the that denied since the Dolsen state verdict and over conspiracy, year jury such it was for a ing since the Nelson the verdict. Accord question. appellants, however, decide the Nor were the the an im conditions, jury etc., partial not statements about world could have been obtained. prejudicial. begin with, They point- examples, attempt To as was cite numerous above, ing community hostility ed to show out the court mentioned items knowledge appellants rampant. which were such common was some 458 impartial appel- jury

Some of the incidents to which cannot be obtained. Unit- two, three, Dennis, page or al- ed lants States v. F.2d at 226. allude occurred 183 years most and did four before trial by There no was abuse of discretion not have direct connection change denying the district court in a breaking by up examples, the trial. As of venue. Party attempted mob meet- violence an During temporary suspension Pennsylvania on in Western behalf June, Mazzei, in 1953, trial who was a of Communist leaders on trial in New agent former for F.B.I. was pic- York occurred in 1949. The motion case, in witness for the this ture, “I Was a Communist Washington testified in before the Senate Cvetic, F.B.I.,” based on the activities of Investiga- on Permanent Sub-Committee trial, pre- one of at the the witnesses tions, by Joseph R. Mc- headed Senator Pittsburgh fanfare in with much miered Carthy. Appellants court asked trial jury over seventeen months before publicity for a mistrial because appellants The selection this trial. testimony in the which Mаzzei’s received publicity, cite amount the tremendous Pittsburgh they claimed area which television, through newspapers, radio and impossible. made a fair given to the to their activities publicity which testi- Mazzei’s charges against them, particularly as to mony upon primarily received centered Nelson, point had been that this out by plot the Com- assassination long going period of time. But McCarthy. munist Senator widespread though publicity was Although publicity continuing, no than different it was Pittsburgh area made references make who type all those accorded to Pennsylvania Western Communist here is no indication There news. appellants, there and even to some of the by campaign vari- of a convict-or-else declaring no occasion for a mistrial. publicity; ous media jurors questioned in- Each of the appel- demand unconditional dividually about alone the court jailed. The facts lants convicted knowledge his incident either approach those not here do reading his own discussion with Florida, U.S. Shepherd v. during inquiry, After the which others. 740, from L.Ed. 51-53, S.Ct. juror put oath, court each under guiding havе been principles which jurors not concluded had brief. appellants in their quoted publicity.3 influenced contention, appellants’ Contrary to the gen- rely heavily upon to believe no reason there feeling Delaney community States, Cir., 1952, Commun- about eral signifi- Pittsburgh area was 199 F.2d but the differences between ism in which case cantly from that the situation and the one different country. sig Any quite presented here is permeated entire obvious have community Delaney, general attitudes nificant. there was a Con hearing gressional to believe that an indictment but reason not sufficient jurors during interrogation. They inquiry, During wanted court’s judge dis read mention the assassination had about were asked McCarthy. plot against This, hearing Me before Senator Senator cussed great pub- course, Joseph Mazzei testified. was what received Carthy although judge and, think, licity. interesting refused note that correctly publicity that element in his was such include claimed it is helped being Certainly, ju- questioning. even had the could articles, prejudice influeneed, was did not think rors read ' appellants’ McCarthy’s trial, relation creatеd in to judge’s to Senator reference testimony they judge Joseph hearing Mazzei’s would have known to what and to referring jury mentioning enough complete mem without his as- for the talking about sassination. he was know what to bers organ- specifical- wide served much about world which was directed before trial allegedly party its ly il- ization of the Communist his defendant and at the Therefore, they escape legal cannot had been activities. which he activities for strong hearing spe- apprehension, or even Here, serious did indicted. policies personal conviction, appellants’ cifically that trial concern the dangerous illegal practices activities, and the both hostile and incidentally promoted resulting publicity our institutions are organization. likely are It occurred Jurors too the trial. connected with apprehensions jury cau- and convic- share these had been after a selected Moreover, do not and should or discuss tions. we read about tioned not to notions, apologize re- anyone. find no error not ligious that our ethical We case with political trial. 1949, views for a new convictions and of the motion the denial Cir., Griffin, type is decent of the of social order States v. See United rewarding members, com- all F.2d totalitarian Communist bine to make the questions. The Appellants other raise world as it functions in much state arguments interspersed in constitutional sight. frightful today in our odious and problems no new their brief Supreme foreclosed have been of life are stated at facts These case. in the Dennis decision Court’s they greatly to the because add outset ques- Likewise, other have examined difficulty deciding case as we such a including raised, the withdrawal tions The defendants are Commu- have here. attorney illness in the due to of a defense They nists. are closing days refusal the trial they persuade people teach and the indictment to dismiss of the court completely engage insurrection should in violent striking portion there- speedily as our any of these or find no merit to of. We may permit. The record circumstances questions. the other long analysis very is and its is a tedious concerning In such circum- and unwelcome task. Appellants’ contentions very jury stances it is difficult to evaluate compiling lists and methods testimony pages resulting and ex- make-up in the thousands of the Pennsylvania along without the line hibits somewhere are District Western thought permitting opinion these de- fully in Dow v. our covered undeserving lot, Carnegie-Illinois Corporation, fendants are Steel things likely to have done the with which Cir., 224 F.2d 414. judgment charged, are to distort duly Appellants convicted after evidence, probative of the value Judge long trial, presided over place of to take the even reading transcript in- A Marsh. Indeed, very important there is issue. firmly fair- but that the trial was dicates already this has clear indication During ly trial the court conducted. happened. shows The record that dur- efficiently scrupulously attended prosecutor candidly protecting the defendants’ his task of open par- in time, “at this stated court that presumption rights of in- ticular we do not contend that there There is rea- them. entitled nocence guilt any question personal judgments of convic- disturb son to any here, defendants involved affirmed. which will be tion except рossible exception of Mr. * Judge * *” HASTIE, (dissenting). Circuit Although Nelson [Mesarosh]. general important on two opinion posi- Comment of this court takes dissenting prefaces this prosecutor’s considerations tion case was not opinion. thought, quoted as he I think as weak accurately Judges likely thoughtful, admission reflected the state throughout patriotic informed citizens and well who record trial. event, read, years heard and it difficult to ob- believe over the trying jurors Wilfully persons fair, to be as the was a of that member con- during undoubtedly were, spiracy existence, would have been here with willing knowledge anyone purpose, but a Communist to send its unlawful hearing jail and to such an admission with the intent that such teach- guilt ing advocacy personal prin- and that the be a or rule ciple action, language accused was not established. and with reasonably ordinarily and calculated My preliminary is observation second persons action; to incite to such responsibility as a Court this. Our third, defendant, that a while a magnified by Appeals the often-stated is conspiracy, member had the Supreme to re- Court reluctance of specific bring intent to or cause proof adequacy which has view the about the overthrow or destruction and a Court both a trial court satisfied of the of the United recently Indeed, Appeals. in the one and States force violence as very type this Su- reviewed case of speedily per- as circumstances would preme the suffi- refused to consider Court mit; fourth, that thereafter at least ciency con- to sustain the evidence of the one overt act as was know- States, 1951, v. United viction. Dennis ingly committed one of the con- 857, 871, 494, L.Ed. 341 U.S. 71 S.Ct. spirators period within the of the Thus, be well this court limitations, is, statute of within will con- appellate tribunal three-year period January sider whether the January 1952; fifth, high standard meets the defendants such overt act was committed proof imposes criminal in all our law object purpose furtherance of an or cases. * * conspiracy; of the particulars this now to the We come study My ‍​‌​‌‌‌​​​‌​‌​​‌‌​‌​‌‌​​‌‌‌​​‌​​‌‌‌‌‌​‌​‌‌‌‌​​​‌​‍con- been have of the record has convinced The defendants case. conspiring Act of me that on certain of the issues thus under the Smith victed they people proof persuade stated there was no such to teach bring of the overthrow warrant submission of case to the should about existing government jury. Therefore, of the United were the defendants acquittal. violent possible and that entitled to as soon as directed verdicts employed to that end. means must I jury, charge .to In his inescapable datum of It basic clear, accurate judge detailed made a case, defendants in- prosecution had of what statement and convicted for dicted defendants’ prove to establish engage dangerous talk and indoctrina- guilt: nothing tion, and more than that. It has “In order find the de- charged, proved, much not been less guilty fendants con- joined have to over- spiracy Act, to violate the Smith government. throw our is not even satisfy you evidence must be- plan or scheme contended yond a reasonable doubt that the fol- government says, which, adopted lowing proved: elements or was matured into evidenced First, teach illegal teaching advocacy by any dur- duty necessity advocate yeаrs period of the the three —the overthrowing destroying (of immediately pre- statute limitations — government was conceived cer- ceding presentment pres- the 1952 conspirators, tain continued ent indictment. three-year peri- within the function difficulty squaring punish- finding prior indict- od planning second, respect ment; talk or talk to each ment of individually prohibition separate- the First Amendment defendant immediately knowingly apparent. considered, ly Were the that he matter only law, impression, we would face a about in violation of one of first acts directly question in words which to acts difficult whether consistent incite Speech prohibition Con- violation of of this Amendment law.” Free abridg- gress Compare could, States, without unlawful 23. Goodrich, speech, make criminal such observation of now ment of free Professor organize carry very a a to out a member of “This is scheme this court: dangerous campaign important; liability But the talk. Su- is not to be preme prob- general words, has wrestled with this found in Court effect of the thought may nar- lem and concludedthat within stated nor in what be to be their dangerous рunished, tendency. Indeed, limits such talk be row the test notwithstanding. liability the First Amendment is similar to the commonlaw States, supra. attempt How- Dennis v. United to commit crime—the act done a generally ever, wrongdoer talk the fact remains that must have come dan- government very gerously Goodrich, sort hostile to the is the near to success.” thing Amendment removes Does First the Constitution Protect Free Congressional power proscribe. Speech?, 1921, 487, 492, to 19 Mich.L.Rev. Therefore, Essays Law, the narrow limits which de- Select on Constitutional punishable talk, Supreme 1938, 1068, fine as the Court has staked them out the Dennis opinion Mr. Justice Frankfurter’s also case, regarded must im- be as of utmost finding importance noted the portance. They are not mere formalities. the scheme of the defendants was to They clearly which must be essentials incite to violent action as soon as feas- proved planning to save conviction of clearly punishable plot ible. He cites a indulging dangerous talk from the government to overthrow ex- one prohibition of the First Amendment. political theory” treme and “a seminar speсial Supreme other, Of concern here is the as the with the Dennis scheme Court’s Apparently, limitation of its Dennis decision somewhere in between. to situations in punishable which it is established as what made the Dennis scheme contemplated fact that the actual or like a treasonable than rather permissible political verbal conduct men is calculated to incite like indoctrination design bring to violence soon as will circumstances was this about violent permit. leading opinion In the in the action as soon as circumstances would case, permit. group may lawfully Dennis Chief Justice Vinson A Marxist attempt persuade stressed people the fact that the must have un- to believe found, pursuant appropriate reservedly writings instruc- of Marx tions, advocacy dogma was directed toward and Lenin and similar constitute speedily guide struggle acceptable action violent “as as the circum- the permit.” society. stances It seems to desirable kind of This must coupled proximity been his view that this be much with some call to unlawful necessary satisfy action the clear and tо make present danger test, recognized punishable. which he the conduct But a call to as a measure of constitutional limitation action in the indefinite future a mean- Congressional power in this kind of ingless contradiction of terms. Some case. the threat of violent action meaningful time, orientation whether opportunity regarded at first which he by specification of the time when action imminently dangerous as so that Con- otherwise, is to taken or an essen- gress advocacy could make so directed a part every Thus, tial call to action. validity crime. To that extent remains has found it quoted Professor Chafee’s often form- case, charge here, as in the Dennis every ulation: design “The real issue in free to cause violent action as soon speech controversy permit, is this: whether the will as circumstances in order may punish requisite beyond state all words which have to establish incitation tendency remote, bring revolutionary politi- however indoctrination with gether theory. judge properly constitu- cal the resultant new The trial Party. These emphasized requirеment tion of the stated and Communist this presented government as the above-quoted to were the his instructions jury. overt the manifestation authorita- and conspiratorial tive statement the which de- Such are the considerations agreement. But, has as the frame fine the essential and restrictive recognized throughout case, these this evi- the of reference to which in relation statements not on and documents do dence must be evaluated. face sanction the violent overthrow charged prose- The and the indictment existing government call the much less prove particular cution undertook to the as soon for work toward its achievement beginning time and circumstances the possible. Contrariwise, party as new alleged conspiracy. indict- of the The constitution that “Communist states about ment “from on or that Party upholds Amer- the achievements of 1,1945 continuously April thereafter and democracy ican and defends the * * * * * * did defendants and Bill Constitution advocacy conspire” engage in- Rights.” preamble American extols surrectionary proscribed action democracy subsequent ar- one of the government’s Smith Act. disciplining calls of mem- ticles for the theory early occurred that in 1945 there any participate bers who activities change policy a in the basic demonstrable our American undermine or weaken basic organized program American of the institutions. prosecution showed Communists. Beyond during prosecution, period which continued this that a showing through Ameri- Z. into William Foster figure convention, put policy and dominant in the can Communists carried out a party explanation program attempting his of the new to achieve changes following report political, social, line in the conven- and economic framework tion: desired within the polity and law- our constitutional concep- “The fourth and last false charging jury the ful means. speak against that I tion wish to record, recognized state of the court being idea ‘Left’ circulated saying “prosecution claims in our sectarian voices II, during proved War World present program effect objectives party revised only transitory, * * * cooperation plan and thаt a way are on our to a much Left more working classes between interpretation of the nation- bourgeoisie, classes, other called the According al and world situation. * * adopted comrades, going to, to these we are Reconstituting should, Conven- denounce war But Japan imperialist, as condemn the eschewed the “deviations” tion reorganize past decisions of Teheran unachiev- and undertook slogan able, drop un- of national reorient the American Communists gov- unity, lately Par- abandoned Communist call for farmer-labor der the design give ernment, up ty our no- with the avowed wartime name and fight pledge, to “Marxism-Len- strike abandon the strict adherence bring 60,000,000 jobs, prosecution undertook to forward the inism”. The beginning prove question this was the of socialism an immedi- issue, generally adopt over- violent advocate the ate class-against-class policy. with which throw our charged. defendants are indulg- comrades “But thinking. prosecution first introduced in wishful Our Par- going speeches it, ty, I is not text of certain resolutions know take to- For Communist convention such Leftist course. overwhelming majority, explanation ment on of the new Foster’s Party, in its policies of “line”. Leftist understands dis- less light

this character But, important, more Right Browder’s to us than astrous legal requirement punishable that a Na- line revisionism. The toward scheme must directed have been Resolution is tional Committee’s feasible, violence as Lautner’s soon analysis, one; its in its correct opinion given merely in of terms a demands, immediate of formulation generalized goal revolutionary question of placing of the and its inadequacy group. Its is Communist line hew to the must We highlighted socialism. excerpt from the another taking Resolution, into ac- of that charge, point reemphasizing the course, count, amend- of considering: are getting of rid not ments. We merely required “The intent is not Right opportunism fall Browder’s teaching advocacy the intentional swamp sectarianism.” ‘Left’ of into of the overthrow and destruction of government the new the of the United States putting in evidence thus After by force and violence. The Govern- policy position of the reconstituted beyond openly prove ment reason- statеd must Communist defendant, institu- American able doubt that each addition, adherence terms of specific to show prosecution undertook had the further tions, the meaning, accomplish intent to sinister the overthrow had a all of this that key, it is face. The of the United its not on obvious is to be force and said, intendment violence real speedily above-quoted specific per- circumstances in the found not policy in the announced mit. Such but further and additional averments clearly plainly general purpose the defendants intent must be —which proven beyond doubt, “deviations” recent reasonable admit—to eschew simply doctrine and and can advocacy from Marxist not be inferred from classical principles of overthrow of the Communist “basic follow In the reconstitut- of the United States socialism”. scientific ing violence, “line” was called Accordingly, force and advocacy.” was such there papers revised “Marxism-Leninism.”

prosecution to establish undertook accepts If this court that formulation as through meaning phrase a former of this law, very a correct stаtement of it seems Lautner. named Communist prosecution prove clear that did case. then testified This witness on the single thing point experience Lautner did not to a basis of his as a member indicating program years 1945 con- Communist it beyond templated, opinion inculcation of belief was his the use of ex- approval revolution, pression of an ultimate in and “Marxism-Leninism” in the teaching implied party the time had now constitution come a sanc- existing capitalist work for overthrow of the tion of the violent overthrow government to government possible. as soon as It has inconsistent the avow- already out, pointed respect but will als for American bear institutions restatement, appear this distinction elsewhere is of con- importance proceedings in all and the of the 1945 basic constitutional stitution theory per- opinion his utterance When asked restrictions convention. provision missible under the First constitution for ex- Amendment. try pulsion persons attempt who line which the courts should to The draw distinguishes punishable American incitation overthrow institutions insurrectionary rule, permissible mаjority said that action he “it is a self teaching serving time in He that at some declaration”. made com- future “proletar- establishing, violence is inevitable and the directed at aid ready connecting iat” supplied must be it. Lautner’s link Laut- testimony ner, approval advocacy clear pro- does not even make anything whether in the 1945 letarian there is revolution are in current program implies nothing one which in his view Communist doctrine. There is say “I con- program rather than the other. He did show that under the 1945 myself people urged expert urged sider aims an on the basic or to be to ac- objectives by seizing Marxist-Leninist celerate the revolution myself

principles, opportunity I first but do not consider for violence government. expert on the twists and turns from time to time tactical innovations properly ‍​‌​‌‌‌​​​‌​‌​​‌‌​‌​‌‌​​‌‌‌​​‌​​‌‌‌‌‌​‌​‌‌‌‌​​​‌​‍charged it Communist Parties”. conspiratorial could convict if the very in- “twists and turns and tactical accomplish scheme was “to the over- diffi- novations” which create a serious government throw of the of the United culty a sufficient here. For it is not by speedily force and violenсe as proscription the Commu- basis for as permit.” circumstances would I think violent ultimate nists are committed to it could have reached that conclusion revolutionary If their action. only by speculation by assumption or de waiting game, characterized tactic is a hors the record. theory revolutionary by teaching of II for the action is left while incitation to This indictment was in Janu returned future, First Amendment indefinite ary period 1952. The of of the statute government proscrib- prevents from years. Therefore, limitations is three teaching. recourse Our lawful some of con conduct furtherance during period field of lies in the such a spiracy proved had to be will and demonstration which education January have occurred since insti- increase devotion to our democratic conspiracy order to establish that Communist tutions and thus frustrate persisted and that defendants adhered to preachments. in such some risk There is during period it in covered adoption First But the course. dictment. It will be remembered that us to it. Amendment has committed points upon this was one of the any prox- If did indicate Lautner charge judge very of the trial government imity of the violence explicit: evidence must establish “[the pro- contemplated said to be charged at least one overt act that] gram, I such evidence have not found knowingly committed of one note- record. It elsewhere in the conspirators period within the of analysis worthy this court’s is, limitations, statute of within the nothing points which indi- three-year period January 18, 1949, from teaching, ac- cates that the Communist January 1952; fifth, such projected, 1945 has been tual or since overt act was committed in furtherance ag- people violent calculated to incite object purpose conspiracy; of an or gression against our as soon * * An examination the indict any period time, as feasible or within ment shows that several overt acts were element, however defined. This time so charged proof important in our First Amendment con- January existed after 1949. Each of text, is not mentioned in the court's participation these acts is the or one analysis court, of the record. This like more of the defendants in a Communist during trial, Party meeting, nothing has more. It is not upon attention Marxist shown that in 1949 or concentrated thereafter a de any alleged pronouncements co-conspirator used in fendant or literature teaching propaganda anything advocating said*or did Communist insurrec during making arrangements the 1920’s and or 1930’s. tion even activities showing advocacy. appear whole thrust Nor does it But

4Q5 meetings improbable anyone any There is one other not ex at else planation prosecu guilty All failure was appears of such conduct. try meeting- tion charged was a Com even to to connect the acts is that each involving proved gathering discus after 1948 with ad munist vocacy gov party planning the violent overthrow of of miscellaneous sion matters as ernment. The indictment contained a This included such business. charge financing, contacts, en second not heretofore mentioned. discussion of new among charge larging membership, conspiring particularly That was to or solving ganize workers, a means and industrial the Communist miners bringing those caused overthrow internal difficulties such as by about the violent selecting existing government. rightly leaders, But, arrest delegates meetings. wrongly, judge took this as other pect away the indictment try prosecution failure jury, position we are not to review conduct was in to show how of this that action. well been that charged furtherance of the regarded prosecution had these meet revealing. very purchase If of a ings in 1949 and thereafter as “overt gun as a member of a one “organization” acts” of of the Commu robbery to commit armed Party, particularly nist since dealt act, upon should be as an overt relied problems finance, membership, with certainly show, prosecution try to would delegates to conventions the like. show, and consider it vital to that this explain This would the failure to show weapon procured in con- for use meetings way in these dealt robbery. jury may templated not advocacy with of violence speculate be proof in left to the absence gov government, but would not save the act, whether an innocent on its particular ernment’s case on the spiracy con face, conspiracy. is in furthеrance of a from the submitted which, There must be ited, if cred- consequences of that failure. Cf. De design. shows that But here Jonge Oregon, 1937, v. 299 U.S. theory affirma- seems to have been that 255, 81 L.Ed. 278. S.Ct. showing tive between the connection govern- Therefore, the failure action and some later showing allege prove ment to acts statutory period taken within conspiracy persisting defendants’ required. seems January 1949, is a sec- adherence after any participation to have reasoned that deficiency presented meeting ond fatal of the case way in a Communist in such a by this record. participant knowingly joined that the in organization the internal affairs of the requirements disposition relax became, showing, without further act suspected proof sub- in trials of strict in conspiracy charged. furtherance appears existing versives whenever the But this means that subjected order is to stress and strain. change ground. must posi- It is in the reported It in is when Sir having tion of: to claim that the Raleigh king’s Commu- Walter was tried nist itself judges treason, for his demand for charged. Only theory on that proof are Com- stricter was silenced the court meetings munist withering rejoinder: themselves and the with the attendance of defendants evidence of a marvel, Walter, you “I Sir continuing conspiracy partici- and their being experience wit, of such pation. An theory indictment on that point; should stand this for so might possible under many may another section escape horse-stealers if charge they may statute. But no such not be condemned without we, made therefore, here Raleigh, Rex no witnesses.” 2 State reason (Howell ed.) consider its involvements. Trials convicted

In the accused due course

and executed. today number of well be among Communists, schemers them go destruction, undoing will

our insist

unpunished cases convincing proof open upon clear and every element court gainsaying that is no crime. There ‍​‌​‌‌‌​​​‌​‌​​‌‌​‌​‌‌​​‌‌‌​​‌​​‌‌‌‌‌​‌​‌‌‌‌​​​‌​‍may escape”. worse] [and “horse-stealers pay great price to too But that is not way adminis- our

for assurance that

tering minimizes law the criminal convic-

everyone undeserved risk of

tion crime. spirit, for the reasons opinion, I reverse

stated this convictions. Judge state that I am authorized dissenting opin- concurs

MARIS

ion. TRANSPORTATION

STRICKLAND COMPANY, Inc., of America.

UNITED STATES

No. 15441. Appeals Court

United States Circuit. Fifth

June ap- Currie, Dallas,

Ralph Tex., W. pellant. Dallas, Ford, Atty., U. S. C. Asst. John Floore, Atty.,

Tex., L. U. S. Fort Heard Tex., appellee. Worth, Judge, HUTCHESON, Chief Before JONES, TUTTLE and Circuit Judges. Judge. JONES, Circuit Transportation Company, Strickland here, appellant Inc., plaintiff below and vehicle, motor re- carrier common

Case Details

Case Name: United States v. Stephen Mesarosh, Also Known as Steve Nelson, William Albertson, Benjamin Lowell Careathers, James Hulse Dolsen and Irving Weissman

Court Name: Court of Appeals for the Third Circuit

Date Published: Aug 11, 1955

Citation: 223 F.2d 449

Docket Number: 11169-11173_1

Court Abbreviation: 3rd Cir.