Yates v. United States (354 U.S. 298)/Dissent Clark

MR. JUSTICE CLARK, dissenting.

The petitioners, principal organizers and leaders of the Communist Party in California, have been convicted for a conspiracy covering the period 1940 to 1951. They were engaged in this conspiracy with the defendants in Dennis v. United States, 341 U.S. 494 (1951). The Dennis defendants, named as coconspirators but not indicted with the defendants here, were convicted in New York under the former conspiracy provisions of the Smith Act, 54 Stat. 671, 18 U.S.C. (1946 ed.) § 11. They have served or are now serving prison terms as a result of their convictions.

The conspiracy charged here is the same as in Dennis, except that here it is geared to California conditions, and brought, for the period 1948 to 1951, under the general conspiracy statute, 18 U.S.C. § 371 rather than the old conspiracy section of the Smith Act. The indictment [p345] charges petitioners with a conspiracy to violate two sections of the Smith Act, as recodified in 18 U.S.C. § 2385 by knowingly and willfully (1) teaching and advocating the violent overthrow of the Government of the United States, and (2) organizing in California through the creation of groups, cells, schools, assemblies of persons, and the like, the Communist Party, a society which teaches or advocates violent overthrow of the Government.

The conspiracy includes the same group of defendants as in the Dennis case, though petitioners here occupied a lower echelon in the party hierarchy. They nevertheless served in the same army and were engaged in the same mission. The convictions here were based upon evidence closely paralleling that adduced in Dennis and in United States v. Flynn, 216 F.2d 354 (C.A.2d Cir.1954), both of which resulted in convictions. This Court laid down in Dennis the principles governing such prosecutions, and they were closely adhered to here, although the nature of the two cases did not permit identical handling.

I would affirm the convictions. However, the Court has freed five of the convicted petitioners and ordered new trials for the remaining nine. As to the five, it says that the evidence is "clearly insufficient." I agree with the Court of Appeals, the District Court, and the jury that the evidence showed guilt beyond a reasonable doubt. It paralleled that in Dennis and Flynn, and was [p346] equally as strong. In any event, this Court should not acquit anyone here. In its long history, I find no case in which an acquittal has been ordered by this Court solely on the facts. It is somewhat late to start in now usurping the function of the jury, especially where new trials are to be held covering the same charges. It may be — although, after today's opinion, it is somewhat doubtful — that, under the new theories announced by the Court [p347] for Smith Act prosecutions sufficient evidence might be available on remand. To say the least, the Government should have an opportunity to present its evidence under these changed conditions.

I cannot agree that half of the indictment against the remaining nine petitioners should be quashed as barred by the statute of limitations. I agree with my Brother BURTON that the Court has incorrectly interpreted the [p348] term "organize" as used in the Smith Act. The Court concludes that the plain words of the Act, "Whoever organizes or helps or attempts to organize any society, group, or assembly of persons" (emphasis added) embodies only those "acts entering into the creation of a new organization." As applied to the Communist Party, the Court holds that it refers only to the reconstitution of the Party in 1945, and a part of the prosecution here is therefore barred by the three-year statute of limitations. This construction frustrates the purpose of the Congress, for the Act was passed in 1940 primarily to curb the growing strength and activity of the Party. Under such an interpretation, all prosecution would have been barred at the very time of the adoption of the Act, for the Party was formed in 1919. If the Congress had been concerned with the initial establishment of the Party, it would not have used the words "helps or attempts," nor the phrase "group, [p349] or assembly of persons." It was concerned with the new Communist fronts, cells, schools, and other groups, as well as assemblies of persons, which were being created nearly every day under the aegis of the Party to carry on its purposes. This is what the indictment here charges and the proof shows beyond doubt was, in fact, done. The decision today prevents for all time any prosecution of Party members under this subparagraph of the Act.

While the holding of the Court requires a reversal of the case and a retrial, the Court very properly considers the instructions given by the trial judge. I do not agree with the conclusion of the Court regarding the instructions, but I am highly pleased to see that it disposes of this problem, so that, on the new trial, instructions will be given that will at least meet the views of the Court. I have studied the section of the opinion concerning the instructions, and, frankly, its "artillery of words" leaves me confused as to why the majority concludes that the charge as given was insufficient. I thought that Dennis merely held that a charge was sufficient where it requires a finding that


 * the Party advocates the theory that there is a duty and necessity to overthrow the Government by force and violence. . . ., not as a prophetic insight or as a bit of . . . speculation, but as a program for winning adherents and as a policy to be translated into action

as soon as the circumstances permit. 341 U.S. at 546-547 (concurring opinion). I notice however that, to the majority,


 * The essence of the Dennis holding was that indoctrination of a group in preparation for future violent action, as well as exhortation to immediate action, by advocacy found to be directed to "action for the accomplishment" of forcible overthrow, to violence "as a rule or principle of action," and employing "language of incitement," id. at 511-512, is not constitutionally protected when the group is of sufficient [p350] size and cohesiveness, is sufficiently oriented towards action, and other circumstances are such as reasonably to justify apprehension that action will occur.

I have read this statement over and over, but do not seem to grasp its meaning, for I see no resemblance between it and what the respected Chief Justice wrote in Dennis, nor do I find any such theory in the concurring opinions. As I see it, the trial judge charged, in essence, all that was required under the Dennis opinions, whether one takes the view of the Chief Justice or of those concurring in the judgment. Apparently what disturbs the Court now is that the trial judge here did not give the Dennis charge, although both the prosecution and the defense asked that it be given. Since he refused to grant these requests, I suppose the majority feels that there must be some difference between the two charges, else the one that was given in Dennis would have been followed here. While there may be some distinctions between the charges, as I view them, they are without material difference. I find, as the majority intimates, that the distinctions are too "subtle and difficult to grasp."

However, in view of the fact that the case must be retried regardless of the disposition made here on the charges, I see no reason to engage in what becomes nothing more than an exercise in semantics with the majority about this phase of the case. Certainly, if I had been sitting at the trial I would have given the Dennis charge, not because I consider it any more correct, but simply because it had the stamp of approval of this Court. Perhaps this approach is too practical. But I am sure the trial judge realizes now that practicality often pays.

I should perhaps add that I am in agreement with the Court in its holding that petitioner Schneiderman can find no aid from the doctrine of collateral estoppel.