The thirteen defendants who appeal have been convicted of conspiring to violate the Smith Act by wilfully advocating and teaching the duty and necessity of overthrowing and destroying the Government of the United States by force and violence.1 The period of the conspiracy charged was from April 1, 1945 to June 20, 1951, the date of the filing of the indictment. The indictment also charged the defendants with conspiring to organize the Communist Party of the United States, in which each had held various official positions, as an instrumentality to carry on such teaching and advocacy,2 but the trial Court held that part of the indictment barred by the statute of limitations.

The trial, which was before Judge Dimock and a jury, lasted over eight months, and was preceded by a challenge to the petit jury array which was overruled by Judge Dimock after hearings extending over more than two weeks. The defendants also separately appeal from the order overruling that challenge.

Both appeals were argued together, and are so considered here.

The conspiracy charged was in substance the same as the one passed upon by this Court and the Supreme Court in United States v. Dennis, 2 Cir., 1950, 183 F.2d 201, affirmed 1951, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, the Dennis defendants being named in this indictment as co-conspirators, and as might be expected the Government's evidence paralleled very closely that in the Dennis trial.

As the appellants on this appeal do not directly challenge the sufficiency of the evidence as a whole to sustain their convictions, we need not consider the evidence in detail, save to say that we are satisfied that it was ample both to require the submission of the case to the jury and to sustain its verdict. Stated broadly, the points for reversal urged by the appellants relate to (1) asserted error in the Court's charge to the jury, (2) the inadmissibility of certain evidence, (3) the insufficiency of the evidence to establish a 'clear and present danger,' (4) the misconduct of some of the trial jurors, (5) the claim that the atmosphere in which the defendants were tried made a fair trial impossible, and (6) the denial of their challenge to the petit jury array. We proceed to consider these points in order.

The primary attack on the Court's charge is that over the timely objection of the defendants the jury was permitted to consider on the issue of a particular defendant's intent to cause the violent overthrow of the Government the acts and declarations of co-conspirators during the course of the alleged conspiracy, without proof that they had been authorized or approved by such defendant. The claim on this branch of the argument is not that the Government failed prima facie either to establish the alleged conspiracy or to connect any of the appellants with it by competent evidence, but rather than the ordinary rule admitting against all defendants the acts and declarations of co-conspirators in furtherance of a common illegal enterprise, and within its contemplation, does not apply at least in full sweep, to a conspiracy to violate the Smith Act.

The appellants frankly recognize their contention to be a novel one, and it seems to be implicit in their argument that the proposition is claimed to have validity only in the case of a criminal statute which, absent the requirement of a specific intent, would be unconstitutional for indefiniteness. The foundation stone of their position appears to be that the constitutional application of § 2(a)(1) of the Smith Act is dependent on the showing of a specific intent to cause the overthrow of the Government by force or violence through advocating and teaching the duty and necessity of such overthrow. It is said the proof of this intent is therefore clothed with a constitutional and not merely statutory quality, such that it can be shown only by the conduct and declarations of the defendant himself, or those of others which he has authorized or knowingly ratified, as in the instance of substantive crimes and derelictions such as were involved in Gordon v. United States, 10 Cir., 1953, 203 F.2d 248, reversed and remanded to District Court, 1954, 347 U.S. 909, 74 S.Ct. 473; United States v. Hall, 2 Cir., 1952, 198 F.2d 726, opinion of Judge Biggs, concurring in part, dissenting in part, certiorari denied 345 U.S. 905, 73 S.Ct. 641, 97 L.Ed. 1341; and In re Cary, D.C.S.D.N.Y.1882, 10 F. 622.

The appellants' argument encounters at the threshold an obstacle in the Dennis case, in which, as appellants seem to recognize, we found the Smith Act constitutional independently of its intent provisions. 183 F.2d at page 214. Appellants say, however, that the opinion of Chief Justice Vinson and those of Justices Frankfurter and Jackson, together representing the thinking of a majority of the Supreme Court, did not reflect the views expressed by Judge Learned Hand in this respect. We are unable to read those opinions as the appellants would have us do. On the contrary, we think that the Chief Justice's opinion simply expressed in different language what Judge Hand had stated. And it is clear that Justice Frankfurter's statement at 341 U.S. 551, 71 S.Ct. 888-- 'To make validity of legislation depend on judicial reading of events still in the womb of time-- a forecast, that is, of the outcome of forces at best appreciated only with knowledge of the topmost secrets of nations-- is to charge the judiciary with duties beyond its equipment'-- was not related to any significance which he considered the intent requirement to have upon the constitutionality of the Smith Act, but solely to his criticism of the applicability of the 'clear and present danger' rule to a statute such as this. The same is true of the following statement of Justice Jackson at 341 U.S. 570, 71 S.Ct. 898, which appellants also quote in their brief: 'If we must decide that this Act and its application are constitutional only if we are convinced that petitioner's conduct creates a 'clear and present danger' of violent overthrow, we must appraise imponderables, including international and national phenomena which baffle the best informed foreign offices and our most experienced politicians. * * * The judicial process simply is not adequate to a trial of such far-flung issues. The answers given would reflect our own political predilections and nothing more.' As we read their concurring opinions Justices Frankfurter and Jackson, for somewhat different reasons, found the Smith Act constitutional without reading into it the 'clear and present danger' rule, and independently of its intent requirement.

But even were we to accept the appellants' premise, we think untenable the idea that the usual conspiracy rule applicable to 'a run-of-the-mine conspiracy case'-- to use a phrase of the appellants-- should not be applied to a conspiracy to teach and advocate the necessity of the violent overthrow of our Government. In the case of so serious a crime as treason Justice Jackson in Cramer v. United States, 1945, 325 U.S. 1, 65 S.Ct. 918, 89 L.Ed. 1441, took occasion to repudiate the notion that ordinary rules can be made to vary dependent on the gravity of the offense.3 In the same type of case our concepts do not recognize one kind of law for one case and another kind for another. Indeed, in Dennis we applied ordinary conspiracy rules to a Smith Act conspiracy. 183 F.2d at page 230.

It is indeed true, as the appellants assert, that under criminal statutes involving proof of a specific intent a person may not be convicted simply on the basis of an 'imputed' intent. He himself must be shown to have had the requisite intent. But it does not follow from this that proof of such an intent is limited to that particular person's own acts and declarations, whether the prosecution be for a substantive crime or for the crime of conspiracy. For as Justice Jackson said in Cramer v. United States, 1945, 325 U.S. 1, 32-33, 65 S.Ct. 918, 934: 'Actions of the accused are set in time and place in many relationships. Environment illuminates the meaning of acts, as context does not of words. What a man is up to may be clear from considering his bare acts by themselves; often it is made clear when we know the reciprocity and sequence of his acts with those of others, the interchange between him and another, the give and take of the situation.' So here, the relationships of the defendants and of others acting in concert with them; one with another, the defendants' positions of responsibility in the Communist Party, their activities in carrying forward the objectives of the party, and the nature of those objectives were all matters properly to be considered upon the 'intent' of any particular defendant. And the declarations of other co-conspirators, in furtherance of the conspiracy and within its purview, stand on no different footing. To permit such declarations to be considered on the issue of the 'intent' of a particular defendant, a prima facie case of conspiracy among the appellants and others having been made out, was not to impute to such defendant the intent of others, but was simply to include such declarations among the circumstances which the jury might consider in determining the individual intent of that particular defendant. This was entirely proper. 'Intent' as well as any other element of a crime may be proved by circumstantial evidence. United States v. Pierce, D.C.1917, 245 F. 878, affirmed 1920, 252 U.S. 239, 40 S.T. 205, 64 L.Ed. 542; Nosowitz v. United States, 2 Cir., 1922, 282 F. 575. And the rule admitting acts and declarations of co-conspirators in furtherance of the conspiracy against all defendants applies equally to motive and intent as to other issues. See Wiborg v. United States, 1896, 163 U.S. 632, 658, 16 S.Ct. 1127, 1197, 411 L.Ed. 289; Pinkerton v. United States, 1946, 328 U.S. 640, 647, 66 S.Ct. 1180, 90 L.Ed. 1489.

The appellants also contend, in effect, that the ordinary conspiracy rule-- requiring a showing of conspiracy, including in this instance the requisite unlawful intent, to be made against each defendant, before the acts and declarations of third parties are admissible against him-- was not observed by the trial Judge. They say that it appears from the charge that the Court considered that 'participation' in the conspiracy did not involve showing that a defendant intended to cause the violent overthrow of the Government, but rather that 'intent' was a separate issue from 'participation.' The appellants claim that the charge required only 'participation' to be shown on the basis solely of the acts and declarations of the particular defendant. Hence it is argued that on the issue of intent the jury was permitted to consider the acts and declarations of others against a particular defendant before finding that such defendant was a conspirator on the basis of his own acts and declarations.^3A

This contention is based on the italicized clause in the following part of the charge:

'As I have just reminded you, during the course of the trial certain evidence was received concerning acts, declarations, and teachings of various of the defendants which I carefully instructed you to consider only on the question of the intent of the defendant involved. This was because they took place prior to the earliest date with respect to which there was any evidence of conspiracy. As I have told you, you must be satisfied beyond a reasonable doubt that the defendants wilfully conspired, during the period beginning not earlier than May 1945 and ending on June 20, 1951, to accomplish the objective charged in the indictment which I have previously mentioned. The evidence which has been received relating to the period prior to the alleged conspiracy should be considered by you only in determining the intent of the defendants concerned. You may not consider such evidence in determining the intent of any other defendant to commit the offense charged unless you find that the statement or act concerned was made or done by the direction or authority or with the approval of such other defendant. All of the rest of the evidence in the case, however, you may consider against all defendants except as I have just instructed you, in determining the question of the initial participation of a particular defendant in the alleged conspiracy you cannot consider statements and declarations alleged to have been made by persons other than that defendant.' (Italics supplied.)

We do not think the Court's charge-- even within the four corners of the passage just quoted-- is reasonably susceptible of the interpretation which the appellants endeavor to place upon it. Time and again Judge Dimock made it clear that an intent to cause the overthrow of the Government by violence was an essential ingredient of a violation of the Smith Act. And he instructed the jury that the act of conspiring to commit that offense 'knowingly or wilfully' included such an intent.4

It having been made clear beyond any doubt that there could be no unlawful conspiracy without an intent on the part of its members to cause the overthrow of the Government by force, we do not think that any part of the charge can properly be read as meaning that a defendant could be found to be a 'participant' in the conspiracy charged without possessing such an intent. And since the Court had explicitly charged that 'participation' could be found only on the basis of each defendant's own conduct,5 it inevitably followed that the initial intent of such defendant must also be found on the same basis.

We conclude that there was no error in the charge.

The Government called Lautner, a former Chairman of the New York State Review Commission of the Communist Party, to testify, among other things, to the circumstances of his expulsion from the party.

The substance of Lautner's testimony, relative to his expulsion, was this: Lautner was under suspicion of cooperating with agencies of the United States Government. In December 1949 Louis Weinstock, one of the defendants, suggested to Lautner that he obtain 'a oneway ticket to Hungary.' Weinstock told him to speak to Robert G. Thompson, New York State Chairman of the Party and a member of its National Committee, who advised him to apply for a passport. When a passport was denied by the authorities, Lautner so informed Weinstock and one Jack Kling, the National Treasurer of the Communist Party, and there followed a meeting attended by Kling, Hal Simon and William Norman (indicted in this case but not apprehended), at which Norman told Lautner that the National Committee had asked for his transfer from the New York State organization so as to permit him to continue underground activities in the Midwest. Kling told Lautner to meet him in Cleveland. When Lautner met Kling at Cleveland he was taken to the cellar of a house where before a group, which included the Labor Secretary of the Communist Party in Ohio and a member of the Michigan Secretarist of the Party, he was made to undress and with a pistol at his head, accompanied by such accounterments as a tape recording machine, a device stated to be a 'lie detector,' several pieces of rubber hose and some butcher knives, accused of being an 'enemy agent' and forced to write out a statement that he had been given 'a fair and impartial hearing.' Lautner was then permitted to leave with instructions to meet the group on the following day at a Cleveland cafeteria where the 'hearing' would be continued. He reported there the next day, but no one showed up.

Lautner further testified that when he returned to New York a day or two later he read in the Daily Worker for January 17, 1950 (which was received in evidence without objection) the following item: The National Review Commission of the Communist Party has been conducting an investigation to determine how the FBI agents exposed in the Foley Square trial (presumably the Dennis case) penetrated and functioned in the ranks of the Party * * * In view of the already established facts, the National Review Commission (the top disciplinary organ of the Party) approves the recommendation of the sub-committee which examined the case of John Lautner and hereby expels him from the Communist Party as a traitor and enemy of the working class.'

Lautner testified that he then wrote a letter to the defendant Trachtenberg, the Chairman of the National Review Commission, appealing or protesting his expulsion, but that he never received a reply.

The appellants' contentions as to this testimony raise two question: (1) was it admissible, and if so; (2) was its probative value so far outweighed by its tendency to inflame that the trial Judge should have excluded it, in whole or in part, in the exercise of a sound discretion?

We have no doubt as to the relevancy of the testimony. Lautner's expulsion tended to prove two theses advanced by the prosecution in support of its contention that an objective of the Communist Party was the forcible overthrow of the Government: first, that the Party functioned not as an ordinary political party but in a covert, deceptive, violent, and highly disciplined manner, such as might be expected of a revolutionary organization; and second, that although the provisions of the Party Constitution seemed to belie a revolutionary purpose, the Constitution was not in practice faithfully observed-- the Government's so-called 'Aesopian' theory. That threats of force were used against Lautner with the evident purpose of wrenching from him a confession of collaboration with federal intelligence authorities, that he was forced to sign a paper which would make it falsely appear that his expulsion had been after a fair hearing, and that suggestions were made that he might be done away with altogether, all tended to prove the Government's first thesis. That the Party constitutional provision (Art. VIII, Sec. 7) providing that 'all persons concerned in disciplinary cases shall have the right to appear, bring witnesses, and testify' was violated, and not forgetfully, but deliberately, as shown by the enforced execution of the false statement, tended to establish the Government's second-- Aesopian-- thesis. For example, the defendants in support of their basic position, that Party policy was not revolutionary, relied heavily on Article IX, Section 2 of the Party Constitution providing: 'Adherence to or participation in the activities of any clique, group, circle, faction or party which conspires or acts to subvert, undermine, weaken or overthrow any or all institutions of American democracy, whereby the majority of the American people can maintain their right to determine their destinies in any degree, shall be punished by immediate expulsion.' To counter the defendants' assertion, the prosecution called witnesses to show that this provision of the Constitution was understood by those in positions of responsibility in the councils of the Party as 'meaningless.' True, proof that the provision granting the right to a hearing in disciplinary cases did not mean what it said would not prove that Article IX, Section 2 was also a 'cover.' But we do not think that the Government in proving its general thesis that the Party's Constitution was used generally as a smoke screen could not show all instances in which theory and practice differed.

Indeed the Government was properly permitted to prove, without contest on these appeals, other instances where provisions of the Party's Constitution had not been followed.6

We are not impressed with the argument that Lautner's expulsion had no rational tendency to prove a purpose to disregard this provision of the Party Constitution since those who participated in the episode were already convinced that Lautner was a party renegade. That the individuals concerned may have considered justified their disregard of the Constitution does not matter. It is plain that they chose to disregard it. Nor are we convinced by the appellants' argument that the Lautner testimony was irrelevant because it did not make more plausible than otherwise the theses the Government was attempting to establish. The Lautner testimony was offered as but one of several elements of evidence tending to show the Party's methods of operation and the misleading nature of the Party Constitution. If all these elements, taken together, permit the inference of the Government's theses, then the individual elements are not to be barred as irrelevant.

Furthermore, we think that Lautner's expulsion may be regarded as relevant to proving an act in furtherance of the conspiracy charged. True, the objects of the alleged conspiracy were to teach and advocate the duty and necessity of the violent overthrow of the Government. The effectuation of these objects, however, requires a policy of maintaining a corps of highly disciplined Party workers, above suspicion of collaboration with American intelligence authorities. Lautner's expulsion because he was so suspected was indicative of such a policy, which would have furthered the objects of the conspiracy charged. Because the testimony concerning the Cleveland episode involved conduct taking place in the presence, and with acquiescence, of Kling, a co-conspirator, that testimony was admissible against all defendants.

The appellants further assert that Lautner's testimony was inadmissible since it concerned acts not authorized by the defendants nor shown to be acts of co-conspirations in furtherance of the objects of the conspiracy. This argument has in part been answered above. In addition, it might be observed that various facets of the episode, blanketing the entire incident, were brought home to three defendants named in the indictment and to three persons whom the jury was entitled to find were co-conspirators. Thus Weinstock and Norman (defendants) and Thompson, Simon and Kling (co-conspirators) were connected with the initial steps toward ridding the Party of Lautner; Kling, with the Cleveland 'hearing'; and Trachtenberg (a defendant) with the attempted review of the expulsion. This was ample to make the testimony admissible against all the defendants on trial. Furthermore, to the extent that the episode bore upon the objectives and methods of operation of the Communist Party we think that it was unnecessary for the Government to show that any of the defendants knew of or had authorized the specific actions involved. Because of their official positions in the Party, the defendants are presumed to have endorsed the Party's objectives and methods. In its attempt to bring out the nature of these objectives and methods the Government should not be limited to showing actions known to or authorized by the defendants, any more than the defendants should be similarly limited in introducing evidence of contrary objectives and methods.

We are told that this same evidence, at least as to the events taking place in Cleveland, has been excluded by a number of District Courts in other Smith Act trials. We have not been apprised as to the reasoning of the trial Judges who so decided, but be that as it may we are satisfied that in the case before us Judge Dimock correctly ruled that this evidence was admissible.7

There remains the question of whether the trial judge abused his discretion in nevertheless not excluding the evidence. We think not. While the episode to be sure was an unsavory one there is no blinking the fact that this was one of the prime reasons for its relevance on the issues to which it was directed. The situation here is quite unlike United States v. Krulewitch, 2 Cir., 1944, 145 F.2d 76, 156 A.L.R. 337 where a part of the evidence complained of had insignificant probative value on the issues to be resolved.

Appellants assert that the Lautner episode must have had a 'devastating' impact with the jury. But even if this be so-- although we find no such indication in the record8 -- we would not consider that the trial Judge had so far overweighted the probative value of the evidence, compared with any tendency it might have to inflame, as to constitute an abuse of discretion. See United States v. Grayson, 2 Cir., 1948, 166 F.2d 863.

In the Court below defendants moved to have the issue as to whether the conspiracy charged constituted a 'clear and present danger 'submitted to the jury, or alternatively, for a hearing before the Court on that question. Since both this Court and the Supreme Court have already held in Dennis, 183 F.2d at pages 215-216 and 341 U.S. at pages 511-515, 71 S.Ct. at pages 868-870, that this issue is one of law for the Court the appellants do not press the denials of these motions here, but argue rather that the facts in the record and those which the Court judicially noticed do not support its conclusion that a 'clear and present danger' existed.

Their contention is that the concept of 'clear and present danger' involved determination of two questions: '(1) What circumstances, if any, did the appellants and their alleged co-conspirators contemplate or teach as the circumstances in which an attempt at such overthrow might be made? (2) Was there a probability at the time of the indictment that such circumstances would occur?' Appellants' argument is addressed almost entirely to the first of these supposed factors, the contention being that the trial judge, adopting the prosecution's claim, based his finding that a 'clear and present danger' existed on the premise that the Communist thesis is that 'a time of national crisis * * * such as a severe economic depression or a war' is the time to strike down the Government, and that there is no evidence that such was ever the Marxist-Leninist party line. On the contrary, it is said that, especially since 1935, the Communist doctrine has been that 'in countries which provide channels for the peaceful expression and effectuation of the popular will, the working class and its allies can and should seek to win Governmental power' only by peaceful means, and that the most that can be claimed as to Communist doctrine at any time is that revolutionary overthrow of existing Governments cannot be accomplished, absent the existence of many other 'objective factors' in addition to mere economic depression or war.

The branch of the argument based upon the contentions that Communist doctrine, at least in its more modern manifestations, is non-revolutionary is clearly foreclosed by the jury's verdict. The Court instructed the jury that in order to find a defendant guilty '* * * you must further find that it was the intent of the defendant to achieve this goal of the overthrow or destruction of the Government of the United States by force and violence as speedily as circumstances would permit it to be achieved.' Thus, we must take it that the jury found, on adequate evidence, that each convicted defendant intended to attempt the violent overthrow of the Government at the first propitious