*1 America, UNITED STATES Appellee,

v. Taylor, SILVERMAN, Sid a.k.a.

Simon Champion Joseph Dimow, Robert Ekins, Goldring, and Martha Jacob Asher, Stone, Defenda Mrs. Emil a.k.a. nts-Appellants. 195, Docket 24126.

No. Appeals Court

United States Circuit. Second

Argued Jan. 1957. Sept. 1957.

Decided Rehearing before the Petition for

On Banc Oct. 1957. Court En

Hincks, Judge, Circuit dissented. F.Supp.

See also *2 City, Donner, Frank J. York New Conn., Haven, Emerson, I. New

Thomas George Stamford, Lowman, Conn. F. Conn., Greenwich, Kaye, (Joseph Mitchell defendants-appellants. brief), for on the Atty., Cohen, S. Dist. U. Simon S. Conn., Conn., Hartford, F. and William Justice, Dept, O’Donnell, Atty., III., Washington, (Francis J. McNa- D. C. Haven, Atty., Jr., mara, New U. S. Asst. Koffsky Conn., and John D. and Harold Justice, Dept, Attys., Keeney, C. C., brief), on the Washington, D. appellee. Finally, shall we it. duced to establish Judge, CLARK, Chief Before of our direction the nature consider WATERMAN, Circuit

HINCKS and Judges.1 light our con- trial court *3 evidence. clusion as though find we are Even constrained Judge. CLARK, Chief say error, that the it seems desirable to appeal herein The five defendants judge lengthy pro- conducted trial judgment after of conviction ver from a ceedings outstanding dignity and with having charges of of con on dict spired fairness, in the utmost the tradition Act, 18 the Smith U.S. to violate jurisprudence. And the best American by wilfully 2385, “unlawfully, 371, C. §§ rulings certainly his had a rational basis teaching advocating knowingly Supreme in what then to be seemed overthrowing duty necessity of approach Court’s and also afforded the destroying the Government direct, only, most if method of not the violence, force and United States with facilitating a definitive determination causing intent of over aforesaid legal principles of the questions That involved. throw and destruction of Govern presented difficulty from the ment the United States force and beginning is clear. For dealt the case speedily violence as as circumstances with what have been with some termed permit.”2 would Three other defend “third-string” reason Communist indicted; ants were of these the also officials, single who, exception jury acquitted disagreed one and as to merely Stone, of functionaries, were local Connecticut another, third, while the who was con conspiracy and with a victed, appealed suspended has not his limited the statute of limitations to sentence. period 1955, March 1952 to March alleged Among allegations part continuing ap- to be other of error conspiracy pellants they national claim found in other cases were unconsti- tutionally compelled have been formed in 1945. The chains stand trial to a jury despite of connection with the heart the often strenuous efforts to recognized trial; pre- waive that form are longer congressional decidedly judged by findings thus much more Act, than in tenuous Control 50 other cases we U.S.C. have 841; speech problem and their did presented not had. The § consti- thus has present danger,” been clarified tute “clear and since the conclusion of the Supreme very precedents. defined in Court trial recent decisions of the far-reaching notably Supreme Court, We do not decide is- v. Yates United sues, States, however, 1064, 1073-1085, requir- because we S.Ct. hold the evi- ing dence to establish a conviction insufficient the first an “ad- charged: vocacy action,” “advocacy element of the crime spiratorial the con- rather than agreement. opinion teaching doctrines, In this of abstract with examine, first, precise do we shall na- intent.” We not evil find here evi- agreement necessary and content of ture dence of the incitement to ac- charged and, second, the evidence ad- tion. appeal originally argued changes 1. These § The before U.S.C. 371. are set panel consisting Judges Clark, Lum- United forth 298, Yates v. 354 U.S. Waterman; 1064, bard, upon Judge Lum- 77 S.Ct. n. 1 L.Ed.2d disqualifying himself, Judge quoted bard’s Frank The final words 1356. in the text upon substituted; Judge indictment, speedily Frank’s “as cir death, Judge permit,” Hincks added. cumstances are not found An earlier in the statute. indictment original its enactment 1940 the Since 2. irregularities been dismissed had undergone Act amend- Smith ment, has Jury. Grand the selection affecting United our discussion here- Silverman, D.C.Conn., in, part v. concerning States 129 F. hut its connection Supp. general conspiracy statute, descending ership groups, order follow the follow- will discussion Our importance, National Secre were the outline: Board, tariat, Na and the National Agreement Charged them tional Attached to Committee. The I. organizations special were various Persons Involved. The A. who ever boards. defendant Conspiracy. Aim of the B. The post held a national was the Stone, New member of the was a II. Prooe Delegation Jersey to the National Con Covering Years A. Evidence an alternate member vention *4 1952-1955. 1951, the National and a Committee Advocacy 1952. before B. Oral member National Committee in Advocacy 1952. before Written C. coconspira Most 1953. the named Agreement. 1945 The D. high Foster, tors held national offices. Revolutionary Aims The

E. Dennis, Green, Gates, Davis, Hall, Pot Party. Communist Williamson, ash, Stachel, Thompson, Winston, according Winter, and tes op Disposition The III. timony, were members of the National Remand Case on Board elected critical at the 1945 Con They vention. were all indicted for vio lating convicted, the Smith Act and were Foster, exception with the who was Agreement Charged The I. original trial, ill to too stand Den in- The The Persons Involved. A. 1949, affirmed, nis case which was charged single conspiracy em- dictment Dennis, Cir., United States v. 2 F.2d 183 Supreme per- eight defendants, bracing divers 201, and thereafter unknown to the whose names were sons Court, 494, 857, 341 U.S. 71 S.Ct. 95 L. Jury, cocon- identified Grand Ed. 1137. case These Dennis leaders and Betty Onda, spirators Gan- : Andrew coconspirator Gurley Flynn Elizabeth Foster, Roberts, nett, Joseph Z. William were elected to the National Committee Dennis, Eugene Benjamin David, John Flynn’s at the same convention. convic Irving Hall, Green, Gates, Gilbert Gus violating in 1952 Act the Smith Thompson, Potash, Stachel, Jacob Robert by conspiring with Dennis case con Williamson, Henry Winston, and John spirators was affirmed in United States The various role of these Carl Winter. 354, Flynn, Cir., 2 F.2d v. 216 certiorari coconspirators defendants named Flynn United denied v. 348 U.S. against appreciated only the back- can be 909, 295, 75 S.Ct. 99 L.Ed. 713. Party hierarchy. Actually ground of the Coconspirator delegate to Onda was a involved, one state hierarchies two were Convention, 1945 he National where national, former re- one represented As- the Communist Political By large sponsible to the latter. Coconspirator sociation Connecticut. in the state the defendants were involved Organization- was the Assistant Gannett coconspirators hierarchy, and the named organization- Secretary national al structure. were involved the national from 1945 until al director groups were state national Both Coconspirator 1950. Roberts least changed 1945 when overhauled manager publica- business was political from associations name Daily in 1947. tion The Worker party; parts commencement of' the con- is the event spiracy Party of the State The charged in the indictment. organized in same was secretariat, body fashion, board, highest com- in the reconstituted The only mittee, named and convention. was the National Conven- national tion, briefly coconspirators in it Onda active were it met at scattered top former was the Roberts. The Between conventions the lead- intervals.

675 organization, tional of the State Nat Ross from leader Organizer spoke in National Officeof was a District once the latter Taylor (Silver- Appellant praise at a State Seminar in of the work Connecticut. man) Secretary Joseph was Stalin. record contains State persons scores of Chairman names of held when he became State who taught post officeor the indict- classes for be- —a he held at the time parts Appellant tween 1930 Ekins be- ment returned. various States; Secretary the United and held in 1950 and the was in- came State Appellant they, part vited to post too, believe until Gold- were that ring 1954. single same Commit- a member national State through engaged which the from 1946 defendants tee at various times between Secretary, 1952 and 1955. Financial State Treasurer, and Press Director The Government’s contention Secretary in and was State Executive “after-joiners” the defendants were Goldring Taylor, Ekins, joined either after it was re- *5 members of the State “concealed Board.” Appellant constituted or remained in it after learn- Dimow held local offices significance reorganiza- of its Connecticut from 1946 to 1949 and was tions.3 partici- None the defendants a member the State Committee pated reorganization in the 1945 1953 and 1954. party, although national most of the coconspirators identified were at The interconnection the state and convention. par- defendant to important ques- national officers is an ticipate reorganiza- in the Connecticut proof, tion of and we shall discuss it be- appellant tion was Goldring, who attend- low in that context. But the evidence ed the 1945 State ap- Convention which here, too, of connection must be noted proved the decision group defining the national presented the issue and joined Appellant emulated it. charges. Dimow developed, As the evidence 1946; ap- the other national leaders were shown to su- have pellants had been members of the pervised operations ap- within the state long reorganization: before the 1945 ; paratus persons and various in the con- 1933; Stone since 1937; Ekins since spiracy on the national level were shown Taylor 1939; Goldring since since persons have met other involved 1941. affairs. Thus Connecticut although level, Stone, on the national Normally conspiracy a indict appellant Taylor, met a state level lead- proof lacking ment need not fail if meetings er, at several Connecticut implicate some of the defendants co- or charged. 1952 and 1953. conspirators Stone directed the con- See, g., e. United activities Cioffi, Cir., cealed Connecticut Par- States v. 2 473, 475, 242 F.2d ty appellants Taylor, aat time when certiorari States, denied Cioffiv. United Goldring Ekins, were members of U.S. 77 S.Ct. 1 L.Ed.2d Coconspirator a concealed State Board. 1137. Under here, the circumstances Gannett, ap- however, hierarchy, meeting in the national a necessary reversal would be peared party spon- prosecution at a state if charge prove failed to its by appellant Taylor; appellants sored league and former a were in top State Chairman served at echelon Communist Gannett’s one time as assistant. To take leaders convicted By the Dennis case. linking innumerable one out of instances in the the defendants with such no persons of liaison between record state and na- torious serious harm was done alleged conspiracy The indictment dismissed as barred . statute organize, as well as to organizing teach advo- limitations. evidence organizational cate; stricken, being evidence of ac- it relevant tivity organizing admitted. But to teach and advocate. go jury, having did not count been bloody insurrection; must be acquittal. there Whole to their chances showing illegal speech. inflammatory It highly testi further volumes of distinguishes speech mony persons element which the defend whom about con- Act other criminal into the Smith admitted had met were never ants representa on and which trols subversive activities on the Government’s Supreme has caused the Court to narrow persons would be other these statutory language con- coconspirators. to avoid a Thus shown to be statements, top which would First deeds, struction violate the and aims of Turning paraded Amendment. then to the Smith leaders were echelon national Act, recently as most construed jury; wit and Government before Supreme appears parts Court, there John Lautner’s career other ness language plan country 1950 must be of a use between assump reasonably calculated au- to incite the detail—all on the traced in against to dience to use violence Gov- facts were relevant tion that States, huge conspiracy in of the United which ernment either national immediately hub, and v. in the future. Yates Dennis case leaders were hierarchy supra, one United 77 S.Ct. 1064. Connecticut state the many spokes. These lines identical Yates, case, This like Dennis and merely testimony neither brief nor advocacy al “invoIve[s] ready ha[s] forgotten. easily Hence cumulative nor place, taken and not still the conviction cannot stand without 1064,1079. to occur.” 77 S.Ct. The Gov conspira showing at least defendants and *6 ernment makes no claim of “a persons Den of the involved in the cy engage advocacy to in the future." conspir part nis case were acy. of the same page position 77 at S.Ct. 1080. Its States, supra, 354 Yates v. United conspirators actually that the advocated 298, 1356; 1064, 1 U.S. 77 S.Ct. L.Ed.2d language insurrection of the con sort States, 750, v. United Kotteakos 328 U.S. by demned Yates from 1945 until 1239, 90 66 S.Ct. L.Ed. 1557. indictment in 1955. Since the statute prosecution limitations bars prior for events Conspiracy. The Aim B. 4, 1952, to March there must ulti precise of the aim to define seekWe mately speech be of criminal after Jury, charged by Grand summarize, that date. To proof be there must Supreme recent Court’s mindful warning things: (1) of three utterances disfavor it “will view with 4, 1952; (2) after March that the utter already perva attempts to broaden illegal ances were under the standard of conspira wide-sweeping nets of sive cy prosecutions” case; (3) they the Yates were ut by loose definition of pursuant understanding tered to an be goals. conspirators’ Unit v. Grunewald appellants tween the and some of the 963, States, 391, 77 353 U.S. S.Ct. ed persons convicted in the Dennis case. al 931. The indictment 1 L.Ed.2d agreement leges kind utter the an II. The Proof by dangerous speech prohibited discussing particular this obvious fact Act. We mention items Smith Before explain crime this we shall the manner because ease accidentally may v. confused with think Yates United be which we conspir supra, superficially on this similar offense 77 S.Ct. bears issue. by to overthrow the Government decision we After that requested announced for The latter is violence. counsel submit further force by 2384; 18 U.S.C. 2383 and briefs to indicate the effect of the deci- §§ bidden present present appeal. comply- indictment concerns the on the In sion Act, ing, quoted 18 U.S.C. 2385. this have us § Smith counsel extracts enough would not Yates record and case to show from the the Govern- Yates, they suggest defendants serious were revolu ment’s brief plotted part point-by-point comparison to take who facts tionaries advocacy revolutionary example at For present facts. in Yates with during illegal legal constrained arewe or sort reasons either the two least First, standard approach. reject by period indictment. covered applied sufficiency of the evidence conspicuous proof has This failure of wheth- Supreme to determine Court significance period added in this because erroneous an reversed er convictions who informers at least three Government charge retrial lead should at testified the trial criterion as the acquittal is not same was on of them Connecticut. One apply “In here: required to we are They report- the concealed State Board. we criteria these judging record possible every colorable ed at the trial rigorous apply these cases do not the defendants act or deed done example, which, for of review standards coconspirators, be- required no colorable but Appeals the Court reviewing period. if apply the evidence in the critical havior occurred up- petitioners any are convicted of these approaches to The closest Compare v. United Dennis on a retrial. pe- reported in this which the witnesses page 516, States, supra, 341 U.S. at by persons two statements riod were Rather, page have scru- we S.Ct. speak for apparently unauthorized to there whether record to see tinized the Holden, conspiracy. Joe One acquittal is whom as to are individuals unequivocally meeting present State at a v. Yates demanded.” Negro Commission, who was not 1064,1081, States, supra, S.Ct. United having any position in the identified as Party, apply present task is to 1082. Our reported have said “rigorous men- standards of review” depression and would be a soon there scrupulous in Yates with “the tioned then the Socialist revolution all required by U.S. Dennis [341 care” promptly told wanted. He of retrial or The issue 871]. 71 S.Ct. meeting chairman of “to be careful separate dismissal is a con- matter days.” expressed how he himself hereafter. sideration *7 judge originally The trial admitted the determining Second, ruling in whether or not hearsay, then and but vacated his present supports record the immedi- that, ap- the left peared if additional evidence advantage charge, to be ate we see no coconspirator, that Holden was a gained by proceeding indirectly and con- the court would then consider whether to sidering whether is “weaker” this record or admit it to strike it. additional No “stronger” than in or that Yates. Such Josephine appeared. One Wil- evidence carry decisis the City efforts to stare into Bridgeport lard, member of the patterns unique realm of fact are dif- of Committee, reportedly called re- was impos- in and ficult the briefest cases pupil educational class cite as a at an sible here where the record below ran subject Party’s of on the the attitude 9,200 pages over and the Yates record colonialism; she toward remarked again large. half is was Each case support “the Communists would the sufficiently distinct, such anal- so that people any country in masses misleading unhelpful. yses are and We revolting yoke throw off were the examining proceed directly, the shall capitalists people and assist these comparing present evidence and it with establishing form in a democratic charge previously which we have government.” There was a total dearth analyzed. the Marxist classics read, discussed, or Concerning disseminated the were Evidence A. during period. This is critical issues this resolve all 1952-1955. We Years strongest possible that no such ad- prosecution credibility in favor of vocacy witnesses in fact occurred—that in its favor. all inferences and draw position perfect could to observe find single, most remarkable so, Even nothing report. there is no record in the fact person presence admitted This inwas of a The Government witnesses during years defendants Com- introduced as the President of the engaged Jersey. party coconspirators were munist Subse- and their New quently political attempted advocacy, within the Stone to recruit both party. to outsiders. union steward ranks of the and into the Communist propaganda they statement, con- Stone’s distributed uncontradicted leading supported Jersey sistently Communist, New decried violence change Jersey goals considered authorized the New conventional of economic Party; uniformity jury, and, in order to and social view of reform. The legal policy convict, find that the maintained asked to within the state advocacy that, groups, un- found national it could a blind also be agents authorized Party. FBI in their the national observed midst, leaders being forbidden But the steward was defendants used urged language. bloodshed, only being asked lines circumstantial Three join group presented support which such evidence were would take steps necessary.” First, dire “if advocating a far This is somewhat strained inference. conspirators allegedly cry teaching engaged in such duty illegal necessity overthrowing repeated concerted and period shortly Government of the the formation United after charged jury is the crime the indictment. 1945 that infer of such advo- could cacy continuation damning The second most statement approach after March 1952. This Goldring probably that of allegedly supported by examples il- Gay to the Government witness the lat- legal teaching oral remarks Goldring part Gay ter of 1946. were illegal prior written texts to 1952. Sec- state and local officers in the Communist agreement ond, an use to advocate the time; in Connecticut at that allegedly force between reached both worked in the same section Connecticut and leaders at national daily plant, meeting General Electric reconstituting the 1945 third, And convention. during regular hours, lunch, rest alleged conspiracy there was an working hours. On one occasion future, overthrow the Government discussing theory, Marxist-Leninist from which the could infer a con- Goldring expressed himself thus: spiracy pres- to advocate such overthrow “He stated to me that the Communism ently. in the United States could never through ballot; Advocacy B. achieved Oral the use of We before *8 capitalistic system necessary find it never discuss somewhat would to give up lengthy struggle, without a detail the incidents culled from and that he agreed the record as Marxist-Leninist the- Government counsel ory examples illegal that Communism would ad- be achieved defendants’ oral through vocacy either an internal the use of revolution force overthrow through imperi- conversion of Government of the United opinion revolutionary alist war into they one our of a are the na- heart ** * ture. the case. . that the “He stated Communist strongest single example Quoted as the leader, leadership would be Stone, testimony changing of the character an Jersey officer in New Com- an while imperialist war.” attended a social munist again good proof gathering the statement com- at she discussed Here Goldring, specific intent of with a union but it non-Communist munism example of Asked how an incitement. far is not speaker steward. go country expressing personal his their would obtain “Frankly, way objectives, replied, prognostication as to the commu- Stone achieved; try- necessary Amie, he was not if we’llhave bloodshed.” nism would personal Onda, hearer, leader, learned his to convince had over- friend, himself. national that he convention force and violence to use leaders’ shift estimated national at a in 1945 A third incident occurred Browderism, Dennis meeting whether Con- called consider group prepared peddle case was not Associa- Communist Political necticut’s inflammatory ideas as as those of Onda. repudiate Browderism tion should any event, quoted statement Onda’s suggested course, as more leftist take a argument appear an to be about proposed Draft Resolution proper dogma, orthodox rather than As will be dis- Dennis case defendants. an effort to hearers take incite ac- below, Resolution con- cussed the Draft against government. tion violence, approval no tained although of force and approve it did the idea class The next incident occurred at a Com- Andrew war and “Marxism-Leninism.” party meeting munist in New Haven in Onda, President of the state Resnick, 1949 attended the defendant Association, speaker; Political Small, Priscilla per- and several other he said sons. Resnick was the defendant who “ * * * was not convicted because the dis- guilty Browder agreed. According testimony he revisionism, failed to that Browder Party, was member of the but held look forward of the war and to the end very minor offices aon local level. Pris- Roosevelt, death of and Browder youth cilla Small was a chairman of the gain plan gov- had a the slow branch of 1949; the Communist secretly ernment control which un- is not it clear whether this was a local dermining the United Constitu- States aor state office. A witness testified: by getting Party members into Gov- they ernment bureaus and offices where “Sidney Resnick had discussion with changes make drastic in the Gov- person present, another and he asked the * * * ernment. person thought if he Party would revolutionary have to use “Well, Browder, Onda fol- said that arms to achieve socialism lowing in this policy, coun- such a revised Marx- had * * * try. ism and Leninism in much as it con- tained no revolution left the Com- person present “The other stated that longer vanguard munists no of the he didn’t feel necessary it would be working class. He that a said revolu- revolutionary use arms to achieve social- tion in the Communist sense meant sud- country. ism this However, if it were den and violent death and seizure of the necessary certainly willing he would overnight; Government that Browder do so. being was accused of capitalists. too kind to the Sidney “Then Resnick told him capitalists anything, would do includ- figured said “He that if Browder had ing arms, prevent socialism in this correctly prepared he would have country knew that socialism fight Capitalism *9 to Communists— would crush them. capitalists as the aid of as soon the was “Then Resnick stated that the longer Com- needed.” no munist would have to use revo- as Inasmuch the Connecticut leaders lutionary arms to achieve socialism in join top not the did national leaders to country, pointed and he out ex- this the a new course for until launch ample only of how Communism was York, in convention New national by in revolution. achieved Russia subsequent held to re- these which “ * * * interrupted Priscilla Small they Onda’s, pre- cannot be marks he conspiracy stated that shouldn’t for- examples Resnick as sented potential proof get was a new re- anything, there to be If action. suggest present and that new recruit cruit later would discussed explosion might says get impression that when that he “He occurs, advocating must the Communist force and violence. people ready with leader- to furnish the “ * * * Priscilla Resnick told gov- capitalistic ship overthrow to Party would the Communist Small that replace a farm- ernment and it with standing political protect

have to gov- government, labor farmers-workers capitalists group from the as a ernment.” against using violence would be force and they therefore, to and, examples have them Even more remote are protect teachings prior themselves.” use arms to al- Communist leged conspiracy in formation of the Passing question Res- whether written, oral, 1945. If as well evi- using necessity of doctrine nick’s considered, this line dence this sort violates Smith in self-defense arms day proof runs in 1848 back to the suggests Act,4 Res- incident Engels published The Marx and when force use of nick’s effort to incite the incidents Communist Manifesto. These party by unauthorized proof not admitted as of the execu- were agreement, di- but was leaders’ secret however, agreement, secret rectly contrary it. very purposes: two limited proffered of the incidents Several “First, opportunity to afford an for the although Government, perhaps rele- offering as to what was meant specific of an intent vant to show by the claimed ‘reconstitution conspirator, are too remote individual Party’ Communist and what was meant carrying examples of considered as foe principles the claimed return ‘to the charged. ex- For ’ out “Marxism-Leninism” words those testimony ample, there was that at testimony, phrases were used Chicago meeting party concerning particular the National Tate, attended the defendant Convention of the Communist Political spoke. one Fred Fine Fine was an or- July York in Association New ganizational secretary District and, concerning nature, general, Illinois and an alternate member of the objects aims, purposes of the al- discussing National Committee. He was leged conspiracy April 1945 to rally the sale of tickets to a mass where words, nec- March other it is Henry speak, go Wallace was to and accord- essary back of 1945 learn how ing to the witness: originally the Communist con- formerly stituted and what it stood for said “He from the sale of the party in order to find out kind of what tickets, all indication —there are indica- purposes it was and the nature and people are dissatisfied tions which was reconstituted conditions, they present are July similarly necessary of 1945 and it is looking leadership. for new go of 1945 Marx- back to learn what “He said that is, principles ism-Leninism give prepared people must be alleged are to have been returned they leadership prevent so that will—to July prior 1945. Evidential materials regime. fascist the rise of April 1945, including books and other compared writings, go “He this situation with a some of which back to grain says grain by you only He when a are to be considered elevator. for the packed, determining improperly purpose elevator is it causes how interpreted spontaneous combustion, explosion used the defendants *10 alleged co-conspirators you (if result of it. and other will judge right charge “denied 4. The district his States which the ma- position jority people took that it could to remove it from advocating against power peaceful, for force democratic convict means government present provided possible our under future the United constitution.” Advocacy 1952. G. used) Written furtherance were so before find urges during the forbid- alleged its The that Government by the advocacy April accomplished den study existence, is from that claimed ” * * * books The of certain and dissemination 1955. March 1945 to specific —the classics—consist- Marxist-Leninist purpose to show second Lenin, Engels, Marx, speaker. the works of consider We of the intent conspirators encour- Stalin. The of the second in our discussion aged read proof. the rank and file members lines of third showing works, no but there is remaining fall into statements passages in that on stress was laid express Some innocuous classes. several approval the use of books which advocate prole- dictatorship of the against force and violence the Govern- suggest tariat, how it should but do not ment of the United States. The books brought pass. announce Some be library fill a veritable and contain ideas broadly capitalism de- that must be every aspect on almost other of the social suggest stroyed. is in- there Others that sciences, whereby well as means antagonism classes, between evitable dictatorship proletariat can say be needed but do not that force will subject On achieved. the last the dif- innu- it. There remain some to resolve writers, expressing ferent themselves desirable or endoes that “overthrow” is inevitable, times, countries, contexts, different noninflammatory phrased Admittedly had different ideas. Marx at a terms. Thus a teacher once stated wrote dictatorship prole- that “Fascism class Connecticut that * * * accomplished tariat could be in this coun- prevented also try by admittedly the ballot. And Stalin working the Party led class wrote States, that the United at least taking proper time action at the during period capitalistic when na- gov- system present to overthrow the Russia, tions required encircled bloody ernment.” Another teacher revolution, and peaceful not a one. Taylor class attended Sid “made a book, Stalin’s The Foundation of Lenin- that statement only Socialism is inevitable ism, among those listed in the out- fight we if Communists it. prepared by line the national leaders for And he said Socialism is inevitable be- study by members; the book dis- fight cause we Communists will for it.” cussed in Connecticut, it was not statements, individually These shown that discussion concerned this collectively, are ad sort of “[t]hat particular passage. prosecution vocacy [which], though even uttered pages filled of the record with selected hope may ultimately it lead passages suggesting from all these works revolution, to violent is too remote from that the transition to socialism would be regarded concrete action to be as the kind violent. The defense introduced other preparatory of indoctrination to action passages suggesting peaceful selected which was condemnedin Dennis. oneAs transition. Neither side denied that the concurring opinions put Dennis passages. works contained both kinds ‘Throughout it: our has decisions there question emerges: Thus the recurred a distinction between the state may prompt Was it a violation of the ment of an idea which its Smith Act will belong fully group action, to a hearers to take unlawful that studied advocacy contained, and recommended that such action be books which taken.’ * * * alia, necessary inter is notion The essential distinction govern use to whom force to those is ad- overthrow the urged country? something, dressed must be ment of this do We think not future, merely here, where, showing now or in the rather than there is no something.” particular to believe Yates v. doctrine Unit- was culled out emphasis. supra, emphasis ed Without such S.Ct. there dissemination Marx-

682 body and other Communists. of writ the defendants ist-Leninist literature —a ing regu- reported contradictory are Most of these informers as as varied and thoroughly thought larly prepared put FBI and most serious collections minimizing trial, together by many the likelihood for the hands in different inflammatory in that remarks occurred strands countries times. While some presence introduced which were not are so common Marxist litera to all the they it, in equated evidence. ture that can the notion that force and violence must Agreement. D. The 19 Since US against be used the Government pos- informers, Government in best United is such a strand. States position observe, failed note sible Schneiderman v. 320 United U.S. single example of a Connecticut Com- . S.Ct. 87 L.Ed engaged illegal advocacy munist be- Similarly jury no infer reasonable tween the formation of the Society conspiring that the Gideon filing and the later, of the indictment a decade merely to advocate the lex talionis be negative it would seem cause that idea is contained completely had been possible established as parts of the Bibles distribute. jury and that the could conclude illegal advocacy that no in fact oc- examples We find no absolutely impos- curred. But it is not kind, written, the forbidden either oral or examples speech sible that isolated by any Connecticut Communist in the FBI; went unnoticed and we turn years subsequent to the formation of the proof instances, to circumstantial of such conspiracy. produce The failure to in- with the caveat that the circumstantial teaching speech stances of such proof persuasive would have to be most years during significant, most negative to overcome such direct evi- period party in Con- prosecution’s dence. The second line of thoroughly necticut was infiltrated conspirators in 1945 informers, Government who testified at agreed to indoctrinate the rank and file Gay, trial. Ronald the first Govern- violence, members in use of force and witness, Party ment had been a member jury from which the was to infer that the from 1943 to 1948 and had been a mem- agreement was executed between 1952 Committee, ber of the State the State and 1955. Board, Executive and the State Youth Commission. Worden C. Mosher awas could have found that 1950; member from 1939 to when he was 1944 Earl Browder caused the dissolution relieved of his duties as Financial Secre- of the Communist and the forma- tary. son, Mosher, His Harold Political Associa- tion; Party that William member of Z. Foster wrote a letter to members from 1947 to of the new National 1950. Both Moshers criticizing joined Committee Party the dissolution of FBI undercover agents. Party, sup- joined Party the pressed; letter was Harold Kent May began Jacques working 1949 and FBI for the general secretary Duelos, of the French in 1952. He continued within Party, P. condemned the C. a Communist until 1954. He was to be peace; policy Negro of class A.’s and that the State Commission member of the Foster letter eventually Duelos revealed became member Subsequently, and file. rank Pires Board. Antonio State concealed Z. Foster and several William joined FBI June as an undercover defendants, Dennis case who were agent in 1952 and attended both elemen- the National Board of the members tary classes in Marxism. advanced adopted A., Draft Resolution joined P. in the C. Paumi Rowena criticizing period prais- Browder FBI remained it as an 1940’s special trial, A Duelos article. nation- until the time of the informer July called cultivating contacts with al convention social extensive *12 believing defeat In June der for that after the Duelos article. consider the big help elsewhere, Germany capital July Connecticut, local of working postwar na- groups Duelos maintain discussed the class to Communist believing pos- unity; An- tional Draft Resolution. and the article sibility achieving Onda, national liberation the Connecticut President of drew arrange- against through strongly A., spoke colonial countries out C. P. big powers; period to ments “return between the Browder and favored arousing class At another meet- “tendencies to obscure the Marxism-Leninism.” favoring bourgeois expressed democracy, nature false himself Onda concepts equated a “revolution” which he of social evolution and to leading minimizing independent seizure of the violent death overnight. working role of the Government class.” It concluded wage exhortation, must “We committee The Connecticut state ideological struggle resolute on the eventually Resolution endorsed the Draft enhancing front, theoretical Marxist similarly and the state convention en- understanding organization of our entire electing it, represent dorsed Onda to leadership.” state at the national convention which July 26-28, 1945, was to be held in New adopted time at that The Constitution City. York At the national convention incriminating. It dedicated even less secrecy day strict was the order of the the Bill of to the defense of picked one hundred Communist Rights and to the ultimate establishment They unanimously leaders attended. socialism the free choice of the adopt voted to the Draft Resolution and majority people. the American Other to reconstitute the with Foster at provisions punished who con- members Many the head. of the Dennis ease spired to overthrow Government high defendants were elected to office and violence. While the force delegates this time. The national also provisions find not bound to that these adopted a constitution which dedicated enforced, infer from it principles to “the of scientific agreement them an to use force and socialism, Marxism-Leninism.” against violence Government. conspicuously The Draft Resolution is speeches Nor did the of Foster and suggestion any free of the other leaders at the convention in- inciting approved of revolutionary force peaceful timate that nature and violence. The Resolution was con- official documents was a facade for neo- developing cerned with “the broadest na- concealing agree- phytes a more sinister tional coalition of all anti-fascist and among ment the initiated. While the democratic forces”—for the war with speeches indicated that re- Japan was still on and Russia and the antagonism its belief in class tained military United States were allies. The proletariat the need for the eventual dic- Party’s goals, domestic far from violent tatorship, whisper there was no revolution, were an per immediate 20 pass such a state of affairs should come to wage guaranteed increase, cent an- by peaceful than means other or that wage, unemployment nual extended in- local leaders should incite their mem- benefits, public works, surance price and willing bers bring use violence to controls, rent security, extended social pass. The Government’s state and federal farmers, aid leading witness, pres- Lautner, John Rights, I. Bill of G. elimination of anti- ent at the entire convention and did not Negro discrimination, prosecu- antitrust anything surrepti- recall to indicate a tions, etc. agreement reached tious below the level The Resolution also discussed the of the words the documents them- change significance opportunity from the C. P. selves. The was ideal—one top meeting under Browder to the A. reconstituted leaders hundred in secret— party. agreement It condemned Brow- but no to advocate overthrow *13 084 keeping suggested anyone; assist there was National Convention to and was persons. acceptance line out unauthorized of Foster’s unanimous against Fascism, awith the front united appellants quali- attack Lautner's

peaceful approach to socialism. credibility. expert fications as an and his They qualifications prosecution the that attack his because contended Party prior ar- he left an the to 1950 contained documents themselves Act, personally. agreement never knew them Those Smith to violate the cane however, Party prin- prevent him, facts would the not the committed testifying general and, from ciples ac- use of terms of “Marxism-Leninism” among They cording prosecution, men Communists in 1945. fur- the to the object represented principles ther equated that he never these at the convention inciting spokesman To as a national was force and violence. with recognized not up as a within theoretician link there must this line Party. background showing appel- Such not Connecticut that necessary give opinion for him “Marx- his from term lants understood group point. on this limited his national The issue of ism-Leninism” that credibility commanding inviting seems them to rest on the —which professional fact that preach he is a full-time violence. informer who has testified to the same any Con- There is no evidence that general every facts in Smith Act case expressed himself necticut Communist Dennis, since as well as before numerous construing fash- the resolution in that Juries, investigating committees, Grand suggestions Rather, in the ion. there are argued properly and boards —was to the leadership record that the Connecticut jury and is not for us to decide. Cer- thought any Party disapproved that the tainly discrepancies between his among force, talk of even the member- prior public testimony testimony and his ship. To establish the fact that the Con- great in the trial below were not so including ap- Communists, necticut jury could not believe him. pellants, “Marxism- understood the term profess familiarity Lautner did synonymous Leninism” ad- with to. be with vocacy Communists, force, Connecticut but called testi- the Government experience fied that expert his as a John Lautner member to the stand as an functionary of and qualifications on Communist communism. Lautner’s party Ohio, from 1929 expert experience to 1950 in as an West were his Virginia, Canada, York, Party jobs and New and in from 1929 full-time various the classes he experience taught, attended as a his occasional from his top conversations with in Marxism in level teacher of classes national leaders who York, attended 1945 local and his attendance at New convention, Marxism, Marxism-Leninism “was the national schools theory practice Eugene revolutionary personal conversations with his struggle. application class Flynn, It was Dennis, Elizabeth and two other teachings Marx, practice just prior 1945 leaders national Engels, Lenin, bring and Stalin to The relevant content of about convention. proletarian in this era revolution and conversations was not revealed suggestion dictatorship proletariat.” beyond jury He disgusted testified Flynn further the reconstitution with Elizabeth top in 1945 “meant way had al- of the Communist leaders switched giving repudiating up legiance Browder to the new con- a collabora- from the — high class-peace fairly policy, policy, trolling group. Lautner held tionist going policy.” York to a class-war As- New State back office suming one of the believed Lautner was never but top He was and that it inferred that the or national leaders. state Board or National Communists viewed the convention the National never on way present Committee, 1945 and resolution the same crisis, exists. this situation to this when con- Lautner, conclude it could hand, the Com And on the other when agreement time at that spirators reached influence has a decisive munist Marxism- doctrines on the abstract large key sections, sections capitalists that the Leninism: proletariat working class, antagonistic; when the hopelessly *14 Party eventually with allies has decisive influence re- proletariat would that the working farmers, ruling class; the as of the class such bourgeoisie as the place the Negro people, men. power small business working once class the wipe dictatorship to should establish exist the “When these two conditions vestiges classes. challenge of ready all other out Communist is existing system it the order of the equate “Marxism- did Lautner not represented is the Government. He violence. force and Leninism” Communist is in this Aesopianism When the not that it was did claim challenge ready condition and suggest implied is the term and did not through force and violence to overthrow proletariat dictatorship of the the existing system regime— the violently. There should be achieved inferring the Con- ready through no basis “And to lead appellants understood the necticut proletarian destroy revolution to approve and Constitution to Resolution ready smash the made state machine inciting practice revolt. violent of the through dictatorship establish proletariat Revolutionary a new social order. When E. Aims The conditions, these ists, when Party. this situation ex- The third line of Communist establishing these are the proof ultimate aims and that the was aimed at objectives leading Party.” Party expected play role in a govern- against putsch future violent jury perhaps The could infer that the country. gave his ment of this Lautner objectives aims and thus described expert opinion of aims of the generally the witness Lautner were years 1929-1942 and 1945-1950: .by shared Connecticut Communists as objectives well as others. “The Corroboration ultimate aims and for this Party’s view prac- could be found in the United concentrating given tice of was, its efforts States con when certain * * * force, meetings labor objective its secret ditions subjective certain maneuvers, clandestine discipline.5 and its on hand when internal conditions one country crisis, When these will characteristics find itself in a together are crisis, viewed deep crisis, with the evidence economic or a war already every described inference is When a exists that situation. condition against defendants, drawn state, it rea- the influence the influence * * i:' to find sonable that the bulk of Par- of the Government is on the— agreement ty membership was in be, on the Is not used when the influence as it desirability day power lead- and the the Government against ignored, a violent insurrection or Government is the Govern From accepted Federal Government. rule the mem- ment cannot meas despite membership per- ures, carry bers’ continued cannot on its functions with jury accepted prior could further secution infer measures did it point directly very prosecution does not il- in- toward The stresses legal Similarly, exhortation. concealment dustrial of conceal- concentration any unpopular rationally illegal is consistent with or ment. But do not these raise enterprise; jury appellants engaged any but could not inference that enterprise plot tell the nature of the from the in a to advocate insurrection at the seeking they hiding factory mere fact concealment. Once the were ex- time jobs. possi- were of the crime shown istence evidence, other The industrial concentration might bly conspiracy suggests facts sabo- these to commit revolant specific tage, espionage, political going or as to as corroboration intent. or strikes beyond proselyting; mere labor engage willingness personally conspiracy in does to use establish a opportunity illegal language, putsch, appellants such a should the none given. signal have been a member such a con- arrive spiracy ; and all must be five convictions proof of record thus afford reversed. conspiracy seditious commit or revolution. insurrection upset We are reluctant remaining question or not is whether convictions, appellants not because the conspira- could infer from the persons seriously angrily are revolutionary tors’ presently ardor criticize the most cherished American advocating joint- committed to institutions —for that is their constitu ly use of violence. think not. We right tional because we are loath to —but *15 proof of This line at most establishes the jury’s disturb a resolution of a contested long-range conspirators’ objectives; jury’s factual issue. But where the find light agreement not does cast on their as supported by is not record it period pursued to tactics to be duty our Here, to reverse. on critical certainly 1952-1955. it is within While issue of whether these defendants or the fancy realm that men who even- Party engaged during speech in criminal tually pres- want will insurrection violent years prior indictment, the three ently necessity teach the of such be- single there is no direct evidence of a ex strong havior, hardly proof it is of such ample advocacy, ample despite such teaching. For would-be revolutionaries opportunity FBI observation likely, prop- least are at as as an abstract agents conspirators’ with access to the osition, adopt years to tactic in innermost councils. The circumstantial unpopularity decrying the use proof gaps was too probative. full of to be posing peaceful violence and social as We would mock both fair trial and free reformers. We the whole need list speech meaningful constitutional spectrum of to tactics available the con- guarantees ignore were we to the de spirators, jury for the was not free to ficiencies this record. speculate hypothetical as to which course appeal group would most to a Disposition of would- III. oe the revolutionists. It was restricted to Case on Remand which, the evidence in record, Supreme case In the Yates previously away demonstrated, pointed deciding Court the criteria for stated any suggestion illegal ad- appellants when Act convic Smith whose vocacy pursued was the tactic acquitted reversed should be tions were years. compelled and when should again. The indicated stand trial Court the three lines of Nor are proof quantum required to al proof sufficient when circumstantial retry appel low the an Government together. The lawful taken use than lant was less the amount needed agreement speech, an abstract share original conviction. Con sustain the sequently, agreement revolutionary doctrine, and an although proof we find the against the force Government to use convictions, inadequate support up conspiracy do not add to a the future separately must still consider whether we illegal language. presently to use or not on retrial the Government could agreed language appellants which the showing. make a better undoubtedly and did use is anathema use populace, of American understand the bulk As we Yates decision Supreme unlawful. We can neither Court found it is not sus that there was prosecu- conviction for talk a substantial tain their such nor likelihood wholly given permit tion, opportunity, to draw un another could inferences warranted occasion establish existence on may appellants slyly party, have than the which made much smaller sinister remarks. more Since the advocated violence to the inner circle regime of basic revision der its comprised concealed of initiates in- theories. Marxist-Leninist informers Government Here board. board state the concealed filtrated P. A. of C. the National Convention At mildly nothing incriminat- even observed unanimously July voted 1945 it the Govern- ing. know how do not We co-con- reconstitute showing on better make a ment spirator co- head and other Foster as its attempt. first on the it did retrial than conspirators National were elected to the court district Consequently we order A National Board. Committee five acquitting all judgment to enter adopted dedi- Constitution was appellants. principles of cated the “to the socialism, scientific Marxism-Leninism.” lengthy we case and difficult In this ostensibly It is true the Constitution acknowledge professional assist- the able called for by “establishment socialism sides, given on us both counsel ance majority the free choice of the original presentation on the both people.” the American And it not analyzing of events turn later resulting calling express provision no contained recent decisions from the purported for the use of force but even Supreme the United States. Court of *16 require expulsion the members fine particular commend the do we In conspired to overthrow the Government by noteworthy discharge burden of a by force. assigned lawyers the who were those by the court. task However, that the Constitution was truth a charter of violence demon- for of the indict- dismissal Reversed by strated a mass of it evidence that ments. accomplished a “reconstitution” of the Party prior as it existed to the C. P. A. Judge (dissenting). HINCKS, Circuit again and interlude dedicated itself agreement accept of the I the account Marxism-Leninism. Thus evi- there was majority charged, opin- as recited the sponsored by dence at a that school the repeat the recitals there- ion will Party in old 1939 of which the my accept I cannot brothers’ of. But leader, Stone was the co-conspirator conspira- opinion that the evidence of a Flynn by was followed as a lecturer agreement proscribed to advocate torial emissary another Party, of the Bittle- any respect was insufficient action man, (inter alia) who said that, the jury’s support verdict. There working throughout class the world and following. ample of the Party in America needed a of a new Party, (here- U. S. A. The Communist Party type, a disciplined, that was well Party) referred as the inafter Party based in the fundamentals teachings on the of Marx founded Marxism-Leninism, that was Engels. was suc- organize to mobilize able people by Asso- the Communist Political ceeded to Party government, overthrow their own A.) (herein had C. P. which been ciation through that was able to Browder, leadership of under the formed dictatorship proletariat, of the smash Secretary Party, as General capitalist rule of the class carry arrived at the decisions out government place its set own Brit- the United Great leaders up government, a new dic- form of Teheran. Russia at ain and proletariat. tatorship of the Bittleman said that he was that the further sure Board the National June On co-conspirators that understood time which included students P. A. of C. Davis, foundation Marxism-Lenin- Dennis, Williamson, Foster, basic dictatorship pro- adopted Thompson a resolu- ism Green dictatorship letariat, was the and that it (hereinafter the Na- referred guaranteed criticizing proletariat Resolution) Brow- of the tional bourgeois Party’s power would drive for be machine state and the ” guaranteed It that the substitution for a new successful. it of one.’ would overthrow mobilize the workers again: And government. guaranteed their own It qualifying phrase “Marx's about through violence, that the old force gave opportunists the Continent capitalist remnants class would. and Mensheviks of all countries destroyed guaranteed and it that the pretext proclaiming for Marx government new form of ership under lead- possiblity had thus conceded the continue to peaceful bourgeois evolution reorganize government of the coun- democracy proletarian into a de- try Bittleman overthrown. mocracy, at least in certain coun- further stated that he believed now European tries- outside the continent that the students understood the neces- (England, America). Marx did in sity understanding theo- possibility, fact concede that and he ry, theory Leninism, good grounds conceding had working experience class of England regard to and America in presented writings world as century, the ‘seventies’ of the last teachings Engels, Marx, Lenin monopoly capitalism when perialism im- and Stalin and that the students under- yet exist, did not and when applied stood that Leninism countries, owing special those every used development, conditions of their had country organize the world to and. yet developed no militarism and people mobilize the to overthrow one’s bureaucracy. That was the situa- government. *17 appearance tion before the of devel- teachings objectives Such oped imperialism. later, But aft- thirty Party lapse forty years, er a of upon which the returned its when situation in those coun- reconstitution in 1945. radically changed, tries had when express The Constitutional dedication imperialism developed had and had necessarily Marxism-Leninism im- capitalist embraced all countries ports gov- violent overthrow of exception, without when militarism Party objective. ernment was a bureaucracy appeared had Party generally, and the defendants and England also, and America when the co-conspiratórs recog- particular, special peaceful conditions for de- Marx, Engels, nized Lenin and Stalin as velopment England and the exponents of the Marxist- authoritative disappeared— United States had Although Marx, Leninist classics.1 qualification regard then the writing century, in the mid-nineteenth necessarily those countries could no may have believed that socialism could be longer good. hold achieved in United States without * ** Today, England both writings violence, of Lenin and America, and in ‘preliminary living power Stalin, until every people’s condition real long charged after smashing, is revolution’ the de- 1945, plainly formed in teach that for ‘ready-made struction state end the violent overthrow of the (brought machine’ in those coun- necessary. United is States Stalin tries, 1914 and between wrote: general ‘European’ imperialist per- right fection) saying: .” is “Lenin ‘The proletarian impossible revolution is writings Engels’ adopted in his Lenin “revolution,” without the forcible destruction viz.: definition of appellant 1. The Ekins testified that instruction contained these “classics” from “the came horse’s mouth.” “ * * * Shortly of violence and revolution. undoubt- Revolution thing thereafter, Convention the State edly authoritative the most Bridgeport, C. P. A. in attended about one in which possible is an act It including persons, imposes population section urged Goldring, Onda members to estab- means other its will on the rifles, bayonets, put cannon, lish e., Marxist-Leninist classes i. Party program practice; means, into highly authoritative delegate inevitably peace- another had forced stated that victorious impossible. ful supremacy transition to socialism was means maintain its accept inspire It was then voted the National arms of that fear which its * * Resolution referred to above and Onda in the reactionaries represent was elected to P. the C. A. evidence that There was credible forthcoming Connecticut at the National provision in the Constitution (which Convention took unanimous pain explusion, proscribing, under above). action described violence, a sham purpose real blind to conceal the August 1945 the C. P. A. of Con- devastating Party. impact And for its Bridgeport necticut held a convention at sincerity provision of that it is on the significant at which the State C. P. A. was dis- this same Bittleman solved in Con- standing his without sacrifice to Party member, necticut was reconstituted as a Marxist- December, Leninist in line with the action magazine issue of the “Political Affairs” taken at the National Convention. The which received wide distribution not State Convention elected a State Commit- throughout in Connecticut Party generally, published also tee and voted to initiate Marxist-Lenin- as- an article ist classes. Thereafter serting History that Stalin’s Com- proceeded implement with- munist “is Union Soviet general plans in the state the fountain-head Marxist-Leninist policies Party. op- of the National It ” * * * knowledge guide to and “a Party principle erated under ” * * * Marxist-Leninist action em- whereby “democratic centralism” all de- *18 bodying program- “the theoretical and cisions of Convention, the National man- positions matic of Marxism-Leninism.” dated to the National Committee between (Emphasis added.) quotes And he Conventions, obligatory were on all mem- saying Stalin as “one must be a revolu- Party throughout bers of the the United reformist; tionist, not a one must fol- Representatives States. of the National practice policy low and struggle the of class including Party, Pittman, Betty Gannett, fields, in all not of class col- Siskind, Flynn, Beitenkapp, Elizabeth laboration.” Levine, Wilkerson, spoke and Stachel at Party meetings 1947, in Connecticut. In The Connecticut Branch of the Henry Winston and, came to and its officers did not stand aloof from during Party policy dinner with Taylor, violent overthrow. 1945, policies. In June of Onda, year, Andrew a named discussed The same co-conspirator addressing Stachel, gather- who then President a local was Connecticut, Bridge- Haven, of the C. P. ofA. in New stated that port strategy meetings destroy and New Haven P. was to of C. A. dictatorship advocated capitalism return to Marxism-Leninism and establish a proletariat. many and attacked Browder’s For revisionism be- of the of the which, cause it contained no revolution Connecticut classes in above-mentioned said, Marxism-Leninism, he in the the local Communist sense teachers meant taught sudden and violent death and and from an seizure distributed outline overnight. Kreas, upon the Government “The Fundamentals of Marx- One based ism,” later member of drafted and distributed the State from Committee Party, supported later, advocacy And with* Onda’s National Office. 690 appeal now on Certainly- appellants where do-the convictions period, the- indictment Party, conflict with Yates. in the State leaders

who were charge subject de- was not below an order gave unquestioning obedience Yates fect which was found requiring them Office the National charge: plainly underground ap- the Silverman go hidden into a defendant, that, instructed to convict personally them- paratus bestirred prove ele- policy as one the Government must implement National selves a member ment of the offense while that union infiltration. conspiracy teach and advocate Taking offices which into account the “knowledge violent he had overthrow (other appellants held Stone) than purpose” of its and had unlawful apparatus offices and the in the State advocacy teaching “intent that such co-conspira- named and the held Stone principle action, a rule or and with organization, tors in the National teaching that and ad- the intent such cooperation lines in different unbroken language vocacy reasonably activity the National between ordinarily persons to incite calculated Party, the numerous con- and the State very to action.” This was instruc- appellants officers tacts between the States, approved v. Dennis United representatives Par- National 1137, 341 U.S. 95 L.Ed 71 S.Ct. ty, nature of the activities under- for lack of which in the the convictions appellants implementing taken Yates case were reversed. Not even policies the National charge appellants judge’s criticize the documentary showing my opinion lucid, which in fair and Party objective, overthrow violent was a every adequate respect. my properly opinion, jury, turn, therefore, I to examine the rec- conspiracy existence of the find the advocacy ord evidence of of action charged. light opinion. in the of the Yates I note say my proof But brothers appellant Ekins, who alone of charged is insufficient for the defendants below the stand in took advocacy, especially lack defense, own his testified on direct ex- citing action, which incites understanding amination that his Yates v. United U.S. Marxism-Leninism illustrated disagree. History 1064, I I think passages no- of the Commu- S.Ct. 2. This this throw to be advocated. by study in furtherance means and cumstance words calculated tion’ advocacy not be shown stroying the Silverman as circumstances States sonable “The “The words force and the words rule or calculate refer or think instruction and destruction which would the simply by words person the must be a rule force and violence as will to incite’ alleged to the nature principle the words violence as government people charge by ‘reasonably to be used. permit. ‘rule or things over; do act, co-conspirators overthrowing They mean that arouse or something refer will act must call for over- of the and not actually supplemented permit. principle speedily or Government They and ‘to act’ following: the stir the affirmative upon, merely ordinarily' had that principle speedily It need United nature as cir- intend a rea- *19 things mean and the de- ác- Act inary not freely prophecy evitable case of Marxism-Leninism of the abstract overthrow intended to the culated effeet on advocacy. through the ballot box.” suck “No “The ^[*] principles, violence permit destroying could as are the to select intent future expression not concerned does not constitute violent overthrow and anyone is not have be inferred from the Government # have such effect. reasonably or Likewise, such as government doctrines destruction of some the Government doctrine of by teaching such majority advocacy. of a ^[*] form of an effect is or is belief charged prediction probable Communism. the words are ordinarily which would overthrowing ^[*] a course on implications teaching government The Smith or by teaching destruc- opinion in this violent people or in- imag- force ^[*] cal- or nist which he read movement theory cal tions of proletariat. stance of not (Emphasis added.) “Mastering the Marxist-Leninist “The ^[*****] use it in the solution of problems dogma, means Marxist-Leninist this under the the Soviet class assimilating theory guide struggle varying condi- revolutionary to action.” Union theory learning following: practi- sub- ^[*] from war [such yoke New in 1947 in Taylor over are Bridgeport said “that we Communists system of instructor prevented proper trying York, and attended Party members, capitalism capitalistic time to overthrow the from it was said government. to revolt and as] Connecticut, one where Party taking * * * working world.” At National Office by Goldring, open that Facism conducted At a class overthrow support organized ” the workers class and “that action present classes led Ekins by just by an at up it was they to us Communists to see Moreover, there was a volume of evi- ready [the workers] were and will- dence that the Communist Con- fight ing to for their freedom.” conformity necticut in with instructions advocacy National Board classes initiated of classes for instruction instruction Marxism-Leninism. of Marxism-Leninism as a means policy adopted very This at the time violent overthrow of the Government was when the in 1945 Connecticut Communist no co-conspirators means confined to go along voted to with the Reconstituted directly not named as defendants. Also Party; supplemented activity personally involved in such activities selling appel- Ekins, Taylor, Marxist literature. were ring. Dirnow and Gold- February Against lant Dimow under background date of evidence 1947 sent jury might out a letter to “Dear Comrades” of this properly case the advocating “we must increase our have concluded that these classes were study of political the basic Marxist theories” and theory,” “a seminar in announcing “taking again steps phrase use Justice Frankfurter’s direction, concurring opinion the education committee of the in his in Dennis v. organized Party has a class on the funda- States, supra, United page at U.S. mentals of Marxism.” In page the list 71 S.Ct. at 886. Cf. Wellman reading recommended material accom- Cir., v. United 227 F.2d 757.3 panying this letter was Foundations of my opinion, op- the formation and Leninism, Chapter Party History of on eration of such classes constituted P. one C. S. U. At of these classes advocacy said “Socialism instructor is inevitable terms of action. As the defendant fight we Communist will for it.” because testified, very very Ekins “there is a close appellant Taylor another, said: At relationship between the immediate revolution, “Come the we’ll allow Party.” the ultimate aims That people the church a little to have to initiate and Marx- conduct appel- may another, And still ist-Leninist classes while.” constitute a call *20 capitalists support Dimow said “that the action finds direct lant to in the Russia, opinion, sought page 331, and if we could 354 U.S. Yates at war with 77 give recognized peace page 1083, a talk and at which them off S.Ct. stall develop China, they incriminating ty- if effect that of to the us time ing within next few certain of defendants us the the in case attack that didn’t why, years Russia would be able take classes “conducted in to to the San in for the fact that Well case “remanded in do not overlook the consideration I3. 24, 1957, S., light companion man, U. of Yates” its v. on June the Wellman granted, judgment the of cases. U.S. 77 S.Ct. L. was certiorari Appeals vacated, was of Ed.2d the Court (so 1946, ney to our during year essential in Hartford the Francisco area Com- might potential). State At the con- aviation be where occurred what there meetings made on teaching reports were systematic and mittee to the sidered be “in- progress program of illegal con- advocacy the of this action which of concentration”; leaders local Har- dustrial As Justice demned statute.” the greater prog- for lack of opinion: criticized lan said in that principal ress in infiltration into might of found that one “It policy industry; in union the brass purposes de- to such classes was gen- was concentration” “industrial group velop members of the in the erally in- reports discussed engage crucial at the a readiness to given.4 dustry-branches were during during time, perhaps orwar In club the leaders Electric General upon attack the United States normally in advance a caucus conducted without, as sabo- in such activities meetings5 the Com- union tage fighting, order and street in testimony according members, to munist and diffuse resistance to divert “agreed witness, aon of a Government possible to and if authorities taking program that action should vantage points.” seize local meeting,” place at the next union There But that was no means all. agreed upon program “followed out evidence, was massive in connection with meeting.” This in at the next union Branch, the activities of the Connecticut state accordance order advocacy of concentra- “industrial said chairman of the tion,” e., i. the Communist infiltration pro- policy once “the meetings In of union labor. classes agreed gram upon by the mem- had been urged join members were to obligation of all the that was bers concealing key unions industries up program.” members to follow membership Party. At most of persons for un- to be nominated Slates meetings monthly meetings agreed on at ion officewere such State Committee of the from 1945 with Com- of the Communist locals pursuant to support were thus munist Communists mapped National Office local leaders office the General elected to union plans infiltrating out unions and In a Haven meet- Electric union. New increasing membership in ba- representative 1947, Stachel, sic Connecticut The commit- industries. organization, stated “that National mainly tee at recruiting time was interested today Party’s strategy main industry workers in the brass many groups attach ourselves to organizations (so po- vital our national munitions capitalism in order curb tential) Waterbury Bridgeport; possible.” And in answer whenever many discussions, Goldring as a result question he Party assigned Secretary always the State to advocated “that we should recruit working many among pos- Bridgeport direct infiltration in class and a Bridgeport organizer sible.” In a ing committee meet- full time salaried to the Water- 1953, Goldring bury reported to have area. connection State difficult for Committee recommended that knew was the local that he said especially members, city those with down into be broken cells women branches go children, work, “it particular but that industrial or clubs for porations, cor- necessary as the club in the women make such General hiring baby urged sitters, plant Bridgeport, sacrifice, if of even Electric jobs children, necessary, for their so that to take members go industry industry also in Pratt & Whit- into basic *21 brass part reported Goldring came in was have from a Gov- to attended 4. This 5. witness who at the a ernment time was such caucus. a of the State Committee. member * * “get urged way pending to that members two the *. This area He get program the union offices. Party to themselves elected” its can the go back, reported was said “You to have shops.” in the masses you will make sure find someone concentration for industrial call The you do you. nominate I don’t care how period. indictment into the well continued get yourselves you elect- it. Make sure meeting special was January 1953, a May ed witness into office.” In cell Electric of the General called member, Pires, Party told was then a Taylor Bridgeport. appellants and The chairman, Vittoria, one the Hartford Taylor Goldring present. introduc were Taylor not to at- had ordered Pires Ruth, appellant as “Comrade Stone ed the meetings any tend Communist front National Committee a member on the future and to concentrate was Party.” She stated same Niles-Bement-Pond alone. meeting purpose to formu was meeting regional month, a trade council the Gener plans for concentration late Rochelle, Party of the New Stone, was held in reported as plant. She al Electric led who New York. The having way accom “The best said: meeting, concen- industrial received * * * getting person plish this reports Jersey, tration Connecti- on New of the a member6 is not known as cut and Boston. leadership Party infiltrate the There was plant.” further Electric union Goldring the General organi- of action in agreed Party connection should functioning continuing aof zation bring outside from the in more members underground carefully appara- plant Stone then is to work. conceived into charged. part (cid:127)reported added that tus as a to have tactic, very this accepted to locate make effort communist “should This was an not known as person who was weak be utilized when the wing in a left strong. member or even point- [sic] opposition Lenin union, leadership filtrate the “during period of reac- ed out that get Bridgeport more that we in people should they Party] how should learn [the key departments into go properly, under- how to to retreat depart shop maintenance strengthen ground, preserve and how to powerhouse.” A month and the ment illegal party, use of make le- how to Bridge meeting was held at later another existing legally gal opportunities all present. appellants were port. organ- The same organizations, especially mass change announced a strengthen tactics: Stone izations, their order to members thereafter nothing were to have the masses.” connections with Electrical do with the United plans formulated Elaborate E. that un Union in G. because Workers York put in New state into effect dead; join instead were to ion was 1948. The immedi- Officein National “right wing” union at and work objective plan to avoid ate plant. allowing Party to while surveillance strength meeting membership and con- There was a an industrial conserve tinue, subterfuge Britain, means March or- cell in New increase ganized to maintain and the “Niles-Bement-Pond” infiltration meeting Taylor in various sectors plant. influence attended the economy, especially informing industrial labor. after the cell members that comprised pyramidal plan U.A.W., C.I.O. master Local 405 election gain country go witnesses, (Amie) would Americo One of the objectives Fiori, she had answered a labor official in the who had been necessary Amie, ap- “Frankly, if we’ll have had E. that Stone I. U. testified join bloodshed”; proached refused that he him him in 1947 and solicited membership keep pre- membership Party; offered to his Stone join. viously he secret if he asked her how far had *22 organization officers, cells, of three-man each the National Office. The with Goldring, appointed exception of ganize to or- “unavail which a committee were of successively persons”; e., in cells able to be communi i. not direct Party vertical, by any lower hor- echelons with but no cated of with members izontal, personnel superior Na communication between cells. other than in the organization Goldring Thus the that di- tional sole such Office. was the transmitted, “open Party rections could be of member” for the state through downwardly, com- a chain of communication Connecticut whom might headquarters provided lowest mand from directed. He post Bridgeport, cells echelon of other without disclosure a box in office Party job correspond and a mem- minimum disclosure of it was his do all the bership. ing By Party. March had Par of there for the Connecticut ty pri been an un- established Connecticut also maintained its State derground apparatus system whereby if identi- not vate se communication “drops” provided by cal least with that New York state at re cret were the relayed strong points messages ceipts, had of resemblance. of which were meetings trusted couriers. In 1951 includ- the Connecticut leaders the Concealed were held State Committee Goldring Taylor, in- were Ekins mostly pre in New York and elaborate go underground structed to and left their of, required practiced cautions were jobs periods. homes and for extended by, prevent discovery of the members to Taylor, chairman, under- Connecticut place meetings. time and such These Office, instructions from National security deliberately measures York, went to wear New started to immediately designed avoid surveil hat, grew bushy mustache, lost consid- lance of the F. B. I. and disclosure Vito, weight, erable assumed the alias Party activities. dyed hair, his Italian and started learn might open shop so that he a barber In the Yates case there evidence- a front for activities. was in. -He par that “individuals considered to be hiding 1954; during from 1951 most ticularly trustworthy were taken into- being time financed he ‘underground’ apparatus an in there kept National Office contact with structed tasks which would be useful Party through courier. when the time for violent ar action appellants Other under similar instruc- As rived.” to this it was held: “we are disguises, tions affected assumed aliases say, stage prepared at this hiding and went into for their continu- case, impossible that it a. ing operations. * * * jury, find that ** February 1954, anticipation engaged of a action was also investigation Senatorial Committee page 332, page 354 U.S. at 77 S.Ct. at Bridgeport Communist infiltration into 1083. .In the now case before us ad industries, governing the entire vocacy struc plain. action seems As advo ture the Connecticut was re by co-conspirators cated in the National- organized. A five-man State appellants Taylor, “Concealed Office the Goldring Ekins and charge put Board” was ac forthwith formed an under subject Connecticut, ground apparatus, tivities of course left their and' homes dyed Taylor, jobs, hair, to the National Board. who was took on false names- chiefly responsible reorganiza rigid for the discipline and then under the off chairman; tion, was its Ekins was carried on activities secretary Goldring throughout principal was a member.7 cities of the- super The Government informer Kent under was State upon Ruth,” made member the Board rec vision of “Comrade approval by previously Stone, ommendation Stone and who when asked as to. representative having 7. The other member was a of an international union locals industry. brass *23 go replied: advocacy had is “that those to whom the how far the “Frankly, * * * necessary urged we’ll if addressed thing, be some- must do to future, with the now in In connection or rather than have bloodshed.” advocacy, merely something.” conspiracy sure- to I proofs of of believe might jury’s appellants’ ly think the spect-inconsistent no treat verdict was in re- in connection furtive conduct with test. “underground” the con- as evidence that My brothers the evi- concede on spiratorial advocacy in terms which dence “it is to find that the reasonable called for action. bulk agreement membership was in desirability on the the Par- appellants who To summarize. These ty day leading insurrec- violent Party in the were the leaders of the against the Federal Government” submitted State and that “[t]he record would thus afford rigid discipline of the to the themselves proof conspira- conspiracy of seditious or control was under the which cy to commit or insurrection revolution.” top co-conspirators in echelon their they But hold that there total was a joined organization, of the National prove to conspiracy failure violate the agreement an duty to advocate not Smith Act because line of conspirators’ “[t]his necessity overthrow of violent most establishes the exemplified in the Marxist-Leninist long-range objectives; it does cast promptly classics but also themselves light agreement on' their as to tactics throughout continually conspir- pursued period 1952-1955.” acy period prompt put in- took action agree I except last-quoted as to the by initiating advocacy to effect such that, clause. appears As to it me supporting classes in the Communist continuing advocacy evidence of advocating They joined classics. also necessity overthrow, for violent Party policy concen- of industrial advocacy infiltration, of union and of advocating Party ad- opera- tration and in vocacy Party operation through an elabo- underground apparatus. an tion They personally underground rate apparatus casts a bril- period and over a light agreement liant on their extending as to 1952- pe- years into indictment tactics, 1955 program which present advocacy by silhouettes responded such riod integrated policy action. practicing prompt action the for- concentration and of industrial My say brothers also the critical issue underground apparatus an mation of through appellants is whether “engaged or the managed speech during in criminal throughout Connecticut. years prior three to the indictment.” I phrase find the speech” “criminal sure, advocacy neither To and their their in the Smith Act Conspiracy nor in the present use of not involve did action dynamite Act. But I do find an bayonets. abundance of evi- But the evidence period dence show that within finding supported amply appellants co-conspirators and their practice systematic agreed to advocate the violent overthrow industrial concentration propaganda, government of our and to advocate a underground operation all furtive present program of action directed to practiced as a means advocated my opinion, In that end. accomplishment of socialism state enough sustain the existing govern- overthrow of violent any without collision convictions what- that, ment; put as the Ekins guarantees Constitutional ever objectives it, immediate had “a these speech. trial and free of free very relationship very close to the ulti- party.” appellants pressed appeal the Yates have aims on mate opinion was said that the test of ad- other claims of All several error. vocacy carefully action, which is essential to I have studied find Act, However, denounced my offense the Smith merit. without since *24 brothers order the convictions reversed appellants acquitted and the on the sole ground that there insufficient having object of a ad- its

vocacy action, I too will not extend

my beyond discussion issue. I appellants.

would affirm as all Rehearing

On Petition for before

the Court en banc.

PER CURIAM. petition procedure, for en banc

having Judge been submitted request

HINCKS’ to all circuit judges of the circuit active are service, by Judges was favored Judge HINCKS, MEDINA and Chief being Judge

CLARK and WATERMAN Judges opposed, and LUMBARD and disqualifying

MOORE themselves and voting. hearing en banc has Since a by majority

not been judges, said ordered of by petition is denied division of court heard the

original appeal, 46(c), 28 U.S.C.A. § Judge dissenting. HINCKS INDUSTRIES,

INTERNATIONAL Inc., Appellant,

WARREN PETROLEUM CORPORA TION, Warren Maritime

Corporation. INDUSTRIES,

INTERNATIONAL Inc.,

WARREN PETROLEUM CORPORA TION, Corpo Warren Maritime Appellants. ration,

Nos. 12171. Appeals

United States Court of Third Circuit.

Argued June 1957. Sept. 26,

Decided 1957.

Rehearing Denied Oct.