CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 1 Argued: April 29, 1959 --- Decided: June 5, 1961
MR. JUSTICE HARLAN delivered the opinion of the Court.
Our writ issued in this case (358 U.S. 917) to review a judgment of the Court of Appeals (260 F.2d 21) affirming petitioner's conviction under the so-called membership clause of the Smith Act. 18 U.S.C. § 2385. The Act, among other things, makes a felony the acquisition or holding of knowing membership in any organization which advocates the overthrow of the Government of the United States by force or violence. [n1] The indictment charged that from January, 1946, to the date of its filing (November 18, 1954), the Communist Party of the United States was such an organization, and that petitioner [p206] throughout that period was a member thereof, with knowledge of the Party's illegal purpose and a specific intent to accomplish overthrow "as speedily as circumstances would permit."
The validity of this conviction is challenged on statutory, constitutional, and evidentiary grounds, and further on the basis of certain alleged trial and procedural errors. We decide the issues raised upon the fullest consideration, the case having had an unusually long history in this Court. [n2] For reasons given in this opinion, we affirm the Court of Appeals.
Petitioner contends that the indictment fails to state an offense against the United States. The claim is that § 4(f) of the Internal Security Act of 1950, 64 Stat. 987, [p207] 50 U.S.C. § 781 et seq., constitutes a pro tanto repeal of the membership clause of the Smith Act by excluding from the reach of that clause membership in any Communist organization. Section 4(f) provides:
Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute. The fact of the registration of any person under section 7 or section 8 of this title as an officer or member of any Communist organization shall not be received in evidence against such person in any prosecution for any alleged violation of subsection (a) or subsection (c) of this section or for any alleged violation of any other criminal statute.
To prevail in his contention, petitioner must, of course, bring himself within the first sentence of this provision, since the second sentence manifestly refers only to exclusion from evidence of the fact of registration, thus assuming that a prosecution may take place.
We turn first to the provision itself, and find that, as to petitioner's construction of it, the language is, at best, ambiguous, if not suggestive of a contrary conclusion. Section 4(f) provides that membership or office-holding in a Communist organization shall not constitute "per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute." Petitioner would most plainly be correct if the statute under which he was indicted purported to proscribe membership in Communist organizations, as such, and to punish membership per se in an organization engaging in proscribed advocacy. But the membership clause of the Smith Act, on its face, much less as we construe it in this case, does not do this, for it neither proscribes membership in Communist organizations, as such, but only in organizations engaging in advocacy of violent overthrow, nor punishes membership [p208] in that kind of organization except as to one "knowing the purposes thereof," and, as we have interpreted the clause, with a specific intent to further those purposes (infra pp. 219-222). We have also held that the proscribed membership must be active, and not nominal, passive, or theoretical (infra pp. 222-224). Thus, the words of the first sentence of § 4(f) by no means unequivocally demand the result for which petitioner argues. When we turn from those words to their context, both in the section as a whole and in the scheme of the Act of which they are a part, whatever ambiguity there may be must be resolved, in our view, against the petitioner's contention.
In the context of § 4 as a whole, the first sentence of subsection (f) does not appear to be a provision repealing in whole or in part any other provision of the Internal Security Act. Subsection (a) of § 4 makes it a crime
for any person knowingly to combine, conspire, or agree with any other person to perform any act which would substantially contribute to the establishment within the United States of a totalitarian dictatorship . . . the direction and control of which is to be vested in, or exercised by or under the domination or control of, any foreign government, foreign organization or foreign individual. . . .
Subsection (c) makes it a crime for any officer or member of a "Communist organization" to obtain classified information. We should hesitate long before holding that subsection (f) operates to repeal pro tanto either one of these provisions which are found in the same section of which subsection (f) is a part, and indeed the petitioner does not argue for any such quixotic result. The natural tendency of the first sentence of subsection (f) as to the criminal provisions specifically mentioned is to provide clarification of the meaning of those provisions, that is, that an offense is not made out on proof of mere membership [p209] in a Communist organization. As to these particularly mentioned criminal provisions, immunity, such as there is, is specifically granted in the second sentence only, where it is said that the fact of registration shall not be admitted in evidence. Yet petitioner argues that, when we come to the last phrase of the first sentence, the tag "or . . . any other criminal statute," the operative part of the sentence, "membership . . . shall [not] constitute per se a violation," has an altogether different purport and effect. What operated as a clarification and guide to construction to the specifically identified provisions is, petitioner argues, a partial repealer as to the statutes referred to in the omnibus clause at the end of the sentence.
It seems apparent from the foregoing that the language of § 4(f), in its natural import and context, should not be taken to immunize members of Communist organizations from the membership clause of the Smith Act, but rather as a mandate to the courts charged with the construction of subsections (a) and (c) "or . . . any other criminal statute" that neither those two named criminal provisions nor any other shall be construed so as to make "membership" in a Communist organization "per se a violation." Indeed, as we read the first sentence of § 4(f), even if the membership clause of the Smith Act could be taken as punishing naked Communist Party membership, it would then be our duty under § 4(f) to construe it in accordance with that mandate, certainly not to strike it down. Although we think that the membership clause, on its face, goes beyond making mere Party membership a violation, in that it requires a showing both of illegal Party purposes and of a member's knowledge of such purposes, we regard the first sentence of § 4(f) as a clear warrant for construing the clause as requiring not only knowing membership, but active and purposive membership, purposive that is as to the organization's criminal ends. (Infra, pp. 219-224.) By its terms, then, subsection (f) does not [p210] effect a pro tanto repeal of the membership clause; at most, it modifies it.
Petitioner argues that, if the § 4(f) provision does not bar this prosecution under the membership clause, then the phrase "or of any other criminal statute" becomes meaningless, for there is no other federal criminal statute that makes this sort of membership a crime. But the argument assumes the answer. The first sentence was intended to clarify, not repeal, § 4(a) of the Internal Security Act. By a parity of reasoning, its effect on "any other criminal statute" is also clarification, not repeal.
Petitioner's contentions do not stop, however, with the words of § 4(f) itself. The supposed partial repeal of the membership clause by that provision, it is claimed, is a consequence of the latter's purpose in the whole scheme of the Internal Security Act of 1950, as illuminated by its legislative history. The argument runs as follows: the core of the Internal Security Act is its registration provisions (§§ 7 and 8), requiring disclosure of membership in the Communist Party following a valid final determination of the Subversive Activities Control Board as to the status of the Party. See No. 12, ante, p. 1. The registration requirement would be rendered nugatory by a plea of self-incrimination, and could only be saved by a valid grant of immunity from prosecution by reason of any such disclosure. However, the immunity provided by the second sentence of § 4(f) is insufficient, in that it forbids only the use of the "fact of . . . registration" as evidence in any future prosecution, and not also its employment as a "lead" to other evidence. See Counselman v. Hitchcock, 142 U.S. 547; Blau v. United States, 340 U.S. 332. Therefore to effectuate the congressional purpose, it becomes necessary to consider the first sentence of § 4(f) a pro tanto repealer of the membership clause of the Smith Act, thereby assuring effective immunity from the criminal consequences of registration in this instance. [p211]
Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute. Certainly the section before us cannot be construed as petitioner argues. The fact of registration may provide a significant investigatory lead not only in prosecutions under the membership clause of the Smith Act, but equally probably to prosecutions under § 4(a) of the Internal Security Act, let alone § 4(c). Thus, if we accepted petitioner's argument that § 4(f) must be read as a partial repealer of the membership clause, we would be led to the extraordinary conclusion that Congress also intended to immunize under § 4(f) what it prohibited in these other subsections which it passed at the same time. Furthermore, the thrust of petitioner's argument cannot be limited to the membership clause, for it is equally applicable to any prosecution under any of a host of criminal provisions where Communist Party membership might provide an investigatory lead as to the elements of the crime. [n3] We cannot attribute any such sweeping purpose to Congress on the basis of the attenuated inference offered by petitioner.
Presented as we are with every indication in the statute itself that Congress had no purpose to bar a prosecution such as this, we turn to the legislative history of the Internal Security Act of 1950 to see if a different conclusion is indicated.
Section 4(f) is the product of the fusion of provisions contained in measures conceived by the House and the Senate to deal with the problem which is the subject of [p212] the present Internal Security Act. Primarily, however, § 4 is the result of the Senate's efforts. In 1949, Senator Mundt reintroduced in the Senate a bill, the Mundt-Nixon bill, which had died in committee the year before. S. 2311, 81st Cong., 1st Sess. The bill, which was referred to the Committee on the Judiciary, contained registration provisions similar to those in the present statute, and a § 4(a), a criminal provision identical to that of the present § 4(a). In response to an enquiry, the Committee received a letter from an eminent lawyer, the late John W. Davis of New York, to the effect that, although the primary purpose of the bill appears to be "ventilation, rather than prohibition," there was a question whether
mere membership in a Communist political organization, which is . . . required to register [might] constitute an act such as section 4(a) proscribes? If so,
the letter continued,
is there not inherent contradiction between these sections, and might not a person called on to register as a member claim that he would involuntarily incriminate himself by so doing?
(Emphasis supplied.) S.Rep. No. 1358, 81st Cong., 1st Sess., pp. 43-44. Thus, the Davis letter seemed to address itself only to self-incrimination under the proscriptions of § 4(a), and only to the extent that the membership disclosed by registration would, without more, constitute a violation of § 4(a).
In response to this narrow objection, the Committee drafted the predecessor of the present § 4(f). That section, also numbered § 4(f), provided that:
Neither the holding of office nor membership in any Communist organization by any person shall constitute a violation of subsection (a) . . . of this section. The fact of the registration of any person . . . shall not be received in evidence against such person in any prosecution for any alleged violation of subsection (a). . . .
S. 2311, as amended. [p213] The Committee, in reporting the bill out to the Senate, made it abundantly clear that whatever objections might be made could, in its view, be overcome by the clarification of § 4(a) contained in § 4(f), to-wit: that
mere membership in an organization required to register is not an overt act such as to bring a person within the prohibitions of section 4. This amendment was inserted to make clear the intent of Congress that registration . . . was not evidence of a violation of section 4 of the bill. [n4]
(Emphasis supplied.) S.Rep. No. 1358, supra, p. 2. To the drafters of the original version of the section, then, the perforce limited immunity of the second sentence of § 4(f), together with the clarification of the meaning of § 4(a) in the first sentence, was adequate to deal with the self-incrimination problem under § 4(a), raised by the Davis letter. There is no mention of the Smith Act or any other criminal statute as yet, but the problem of the necessary scope of immunity is no different in relation to § 4(a) than it would be to such other statutes.
The subsequent history of the section in the Senate reinforces the conclusion that there was no intent to grant a broad immunity such as would meet the reasoning of Counselman v. Hitchcock. The Mundt-Nixon bill was incorporated in the body of an omnibus measure, the McCarran bill. S. 4037, 81st Cong., 2d Sess. When this bill was reported out to the Senate, no further mention was made in the majority report of the Judiciary [p214] Committee of the sections under consideration. However, Senator Kilgore's minority report squarely presented two questions as to the insufficiency of the immunity provisions of § 4(f): (1) that the immunity was inadequate to meet the Counselman rule, and (2) that, in any case, there was no immunity of any sort granted in respect of the Smith Act. S.Rep. No. 2369, 81st Cong., 2d Sess., Pt. 2, pp. 12-13. These grounds were urged against the bill also in debate by its opponents. Senator Humphrey read into the Record a "brief" prepared by the Justice Department which, in effect, restated the objections of the minority report. 96 Cong.Rec. 14475, at 14479. Senator Lehman stated the same objections, and also suggested that the membership clause of the Smith Act as well as § 4(a) made Communist membership per se a crime. This latter contention was vigorously denied by the proponents of the measure. [n5] Thus, the Senate passed [p215] its predecessor version of § 4(f), even though it had had clearly presented to it constitutional objections to that provision which are the same as the objections petitioner now makes to a natural and literal reading of the present statute. There was no immunity of any kind against Smith Act prosecutions, and only limited immunity against prosecutions under the comparable provisions of § 4(a).
The history of the original House measure is likewise relevant to the issue under consideration. That measure, [p216] the Wood bill, which also provided for registration, contained no provision similar to § 4(a), but did have a provision similar to the present § 4(c), forbidding members of Communist organizations from obtaining classified information. H.R. 9490, 81st Cong., 2d Sess. The bill included an immunity provision in the same subsection as the predecessor to present § 4(c), which declared that:
. . . the fact of the registration of any person . . . shall not be received in evidence against such person in any prosecution for any alleged violation . . . of this section.
Once again, the Wood bill demonstrates the same narrow view of the self-incrimination problem as was evidenced by the Senate bill. In debate, Congressmen Celler and Marcantonio, opposing the bill, pointed to the two-fold inadequacy of the immunity provision: its failure to meet Counselman and its not reaching other criminal statutes. 96 Cong.Rec. 13739-13740. The House responded to these objections by adding the words "or for any alleged violation of any other . . . criminal statute" at the end of the above-quoted provision. 96 Cong.Rec. 13761. It is, therefore, even clearer than in the case of the Senate's action that there was no attempt to grant complete immunity or to repeal any other statute at least as to prosecution of Communist Party members, since the House's immunity provision in terms only dealt with the admission into evidence of the fact of registration, having no provision comparable to the first sentence of present § 4(f). That there was no such provision may perhaps be explained by the fact that there was no equivalent to § 4(a) in need of clarification.
In conference, the substance of the Senate bill was accepted by the conferees, including the criminal provision of the present § 4(a). The Senate version of § 4(f) was amended to its present form by the addition of the [p217] House "or any other criminal statute" language to both the first and second sentences of the subsection, and by the addition of "per se" to the first sentence. Thus, we are asked by petitioner to hold that, although neither House in its pre-conference bills evidenced any purpose to repeal the Smith Act insofar as Communist Party membership was concerned, let alone other possibly applicable statutes under which registration as a Party member might produce an investigatory lead (see note 3, supra), the amalgamation of these two bills was intended, though without any notification by the conferees to either House in their conference reports, to have this result. Nor does the addition of the words "per se" advance petitioner's argument. On its face, the addition would seem simply to make more explicit the clarifying purpose of the sentence. In its context of worries that § 4(a) or the Smith Act makes Communist membership per se criminal, and of statements by the proponents of the bills that this was an unfounded fear as to both provisions, the purely clarifying purpose of per se is apparent. Furthermore, we are asked to attribute this purpose to the conferees, although neither they nor the proponents of the measure as it finally emerged from conference said a word about such an important departure from the original purposes of the two Houses. [n6] [p218]
Finally, it is worth noting that, after the conference measure returned to the floor of the Senate, it was attacked by Senator Kefauver on precisely the same grounds as had been urged against it in both Houses prior to conference: that the immunity conferred by the present § 4(f) was too narrowly drawn to save the registration provisions against an attack under Counselman. 96 Cong.Rec. 15198-15199. This same attack was renewed after the President's veto, which was overridden by Congress. [n7] 96 Cong.Rec. 15553-15554. [p219]
The legislative history of § 4(f), therefore, far from weakening the conclusion flowing from analysis of the terms of the statute itself, fortifies that analysis at every point. To conclude that Congress' desire to protect the registration provisions of the Internal Security Act against pleas of self-incrimination should prevail over its advertent failure to assure that result at the expense of wiping out the membership clause of the Smith Act, as applied to Communists, would require a disregard by this Court of the evident congressional purpose. Whatever may be the consequences of that failure upon the Internal Security Act, we are concerned here solely with the question whether Congress ,by § 4(f), intended a partial repeal of the membership clause of the Smith Act. We conclude that it did not, and hold that this prosecution is not barred by § 4(f) of the Internal Security Act of 1950.
IICONSTITUTIONAL CHALLENGE TO THE MEMBERSHIPCLAUSE ON ITS FACE.
Petitioner's constitutional attack goes both to the statute on its face and as applied. At this point, we deal with the first aspect of the challenge and with one part [p220] of its second aspect. The balance of the latter, which essentially concerns the sufficiency of the evidence, is discussed in the next section of this opinion.
It will bring the constitutional issues into clearer focus to notice first the premises on which the case was submitted to the jury. The jury was instructed that, in order to convict, it must find that, within the three-year limitations period, [n8] (1) the Communist Party advocated the violent overthrow of the Government, in the sense of present "advocacy of action" to accomplish that end as soon as circumstances were propitious, and (2) petitioner was an "active" member of the Party, and not merely "a nominal, passive, inactive or purely technical" member, with knowledge of the Party's illegal advocacy and a specific intent to bring about violent overthrow "as speedily as circumstances would permit."
The constitutional attack upon the membership clause, as thus construed, is that the statute offends (1) the Fifth Amendment, [n9] in that it impermissibly imputes guilt to an individual merely on the basis of his associations and sympathies, rather than because of some concrete personal involvement in criminal conduct, and (2) the First Amendment, [n10] in that it infringes on free political expression and association. Subsidiarily, it is argued that the statute cannot be interpreted as including a requirement of a specific intent to accomplish violent overthrow, or as requiring that membership in a proscribed organization must be "active" membership, in the absence of both or either of which it is said the statute becomes a fortiori unconstitutional. [n11] [p221] It is further contended that, even if the adjective "active" may properly be implied as a qualification upon the term "member," petitioner's conviction would nonetheless be unconstitutional because, so construed, the statute would be impermissibly vague under the Fifth and Sixth Amendments, [n12] and, so applied, would, in any event, infringe the Sixth Amendment, in that the indictment charged only that Scales was a "member," not an "active" member, of the Communist Party.
1. Statutory Construction
Before reaching petitioner's constitutional claims, we should first ascertain whether the membership clause permissibly bears the construction put upon it below. We think it does.
The trial court's definition of the kind of organizational advocacy that is proscribed was fully in accord with what was held in Yates v. United States, 354 U.S. 298. [n13] And the statute itself requires that a defendant must have knowledge of the organization's illegal advocacy.
The only two elements of the crime, as defined below, about which there is controversy are therefore "specific intent" and "active" membership. As to the former, this Court held in Dennis v. United States, 341 U.S. 494, 499-500, that, even though the "advocacy" and "organizing" provisions of the Smith Act, unlike the "literature" section (note 1, supra), did not expressly contain such a specific intent element, such a requirement was fairly to be implied. We think that the reasoning of Dennis [p222] applies equally to the membership clause, and are left unpersuaded by the distinctions petitioner seeks to draw between this clause and the advocacy and organizing provisions of the Smith Act.
We find hardly greater difficulty in interpreting the membership clause to reach only "active" members. We decline to attribute to Congress a purpose to punish nominal membership, even though accompanied by "knowledge" and "intent," not merely because of the close constitutional questions that such a purpose would raise (cf. infra p. 228; Yates, supra, at 319), but also for two other reasons: it is not to be lightly inferred that Congress intended to visit upon mere passive members the heavy penalties imposed by the Smith Act. [n14] Nor can we assume that it was Congress' purpose to allow the quality of the punishable membership to be measured solely by the varying standards of that relationship as subjectively viewed by different organizations. It is more reasonable to believe that Congress contemplated an objective standard fixed by the law itself, thereby assuring an evenhanded application of the statute.
This Court, in passing on a similar provision requiring the deportation of aliens who have become members of the Communist Party -- a provision which rested on Congress' far more plenary power over aliens, and hence did not press nearly so closely on the limits of constitutionality as this enactment -- had no difficulty in interpreting "membership" there as meaning more than the mere voluntary listing of a person's name on Party rolls. Galvan v. Press, 347 U.S. 522; Rowoldt v. Perfetto, 355 U.S. 115; [p223] see Bridges v. Wixon, 326 U.S. 135. A similar construction is called for here. [n15]
Petitioner's particular constitutional objections to this construction are misconceived. The indictment was not defective in failing to charge that Scales was an "active" member of the Party, for that factor was not, in itself, a discrete element of the crime, but an inherent quality of the membership element. As such, it was a matter not for the indictment, but for elucidating instructions to the jury on what the term "member" in the statute meant. Nor do we think that the objection on the score of vagueness is a tenable one. The distinction between "active" and "nominal" membership is well understood in common parlance (cf. Boyce Motor Lines v. United States, 342 U.S. 337; United States v. Petrillo, 332 U.S. l; Sproles v. Binford, 286 U.S. 374), and the point at which one shades into the other is something that goes not to the sufficiency of the statute, but to the adequacy of the trial court's guidance to the jury by way of instructions in a particular case. See note 29, infra. Moreover, whatever abstract doubts might exist on the matter, this case presents no such problem. For petitioner's actions on behalf of the Communist Party most certainly amounted to active membership by whatever standards one could reasonably anticipate, and he can therefore hardly be considered to have acted unadvisedly on this score.
We find no substance in the further suggestion that petitioner could not be expected to anticipate a construction of the statute that included within its elements activity and specific intent, and hence that he was not [p224] duly warned of what the statute made criminal. It is, of course, clear that the lower courts' construction was narrower, not broader, than the one for which petitioner argues in defining the character of the forbidden conduct and that therefore, according to petitioner's own construction, his actions were forbidden by the statute. The contention must then be that petitioner had a right to rely on the statute's, as he construed it, being held unconstitutional. Assuming, arguendo, that petitioner's construction was not unreasonable, no more can be said than that -- in light of the courts' traditional avoidance of constructions of dubious constitutionality and in light of their role in construing the purpose of a statute -- there were two ways one could reasonably anticipate this statute's being construed, and that petitioner had clear warning that his actions were in violation of both constructions. There is no additional constitutional requirement that petitioner should be entitled to rely upon the statute's being construed in such a way as possibly to render it unconstitutional. In sum, this argument of a "right" to a literal construction simply boils down to a claim that the view of the statute taken below did violence to the congressional purpose. Of course, a litigant is always prejudiced when a court errs, but whether or not the lower courts erred in their construction is an issue which can only be met on its merits, and not by reference to a "right" to a particular interpretation.
We hold that the statute was correctly interpreted by the two lower courts, and now turn to petitioner's basic constitutional challenge.
2. Fifth Amendment
In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that [p225] status or conduct to other concededly criminal activity (here advocacy of violent overthrow), that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment. Membership, without more, in an organization engaged in illegal advocacy, it is now said, has not heretofore been recognized by this Court to be such a relationship. [n16] This claim stands, and we shall examine it, independently of the claim made under the First Amendment.
Any thought that due process puts beyond the reach of the criminal law all individual associational relationships, unless accompanied by the commission of specific acts of criminality, is dispelled by familiar concepts of the law of conspiracy and complicity. While both are commonplace in the landscape of the criminal law, they are not natural features. Rather, they are particular legal concepts manifesting the more general principle that society, having the power to punish dangerous behavior, cannot be powerless against those who work to bring about that behavior. [n17] [p226] The fact that Congress has not resorted to either of these familiar concepts means only that the enquiry here must direct itself to an analysis of the relationship between the fact of membership and the underlying substantive illegal conduct, in order to determine whether that relationship is indeed too tenuous to permit its use as the basis of criminal liability. In this instance, it is an organization which engages in criminal activity, [n18] and we can [p227] perceive no reason why one who actively and knowingly works in the ranks of that organization, intending to contribute to the success of those specifically illegal activities, should be any more immune from prosecution than he to whom the organization has assigned the task of carrying out the substantive criminal act. Nor should the fact that Congress has focussed here on "membership," the characteristic relationship between an individual and the type of conspiratorial quasi-political associations with the criminal aspect of whose activities Congress was concerned, of itself require the conclusion that the legislature has traveled outside the familiar and permissible bounds of criminal imputability. In truth, the specificity of the proscribed relationship is not necessarily a vice; it provides instruction and warning. [n19]
What must be met, then, is the argument that membership, even when accompanied by the elements of knowledge and specific intent, affords an insufficient quantum of participation in the organization's alleged criminal activity, that is, an insufficiently significant form of aid and encouragement to permit the imposition of criminal sanctions on that basis. It must indeed be recognized that a person who merely becomes a member of an illegal organization, by that "act" alone need be doing nothing more than signifying his assent to its purposes and activities on one hand, and providing, on the other, only the sort of moral encouragement which comes from the knowledge that others believe in what the organization is doing. It may indeed be argued that such assent and encouragement do fall short of the concrete, practical impetus given to a criminal enterprise which is lent, for instance, by a [p228] commitment on the part of a conspirator to act in furtherance of that enterprise. A member, as distinguished from a conspirator, may indicate his approval of a criminal enterprise by the very fact of his membership without thereby necessarily committing himself to further it by any act or course of conduct whatever.
In an area of the criminal law which this Court has indicated more than once demands its watchful scrutiny (see Dennis, supra, at 516; Yates, supra, at 328, and see also Noto v. United States, decided today, post, p. 290), these factors have weight [n20] and must be found to be overborne in a total constitutional assessment of the statute. We think, however, they are duly met when the statute is found to reach only "active" members having also a guilty knowledge and intent, and which therefore prevents a conviction on what otherwise might be regarded as merely an expression of sympathy with the alleged criminal enterprise, unaccompanied by any significant action in its support or any commitment to undertake such action.
Thus, given the construction of the membership clause already discussed, we think the factors called for in rendering members criminally responsible for the illegal advocacy of the organization fall within established, and therefore presumably constitutional, standards of criminal imputability.
3. First Amendment
Little remains to be said concerning the claim that the statute infringes First Amendment freedoms. It was settled in Dennis that the advocacy with which we are here concerned is not constitutionally protected speech, and it was further established that a combination to promote [p229] such advocacy, albeit under the aegis of what purports to be a political party, is not such association as is protected by the First Amendment. We can discern no reason why membership, when it constitutes a purposeful form of complicity in a group engaging in this same forbidden advocacy, should receive any greater degree of protection from the guarantees of that Amendment.
If it is said that the mere existence of such an enactment tends to inhibit the exercise of constitutionally protected rights, in that it engenders an unhealthy fear that one may find himself unwittingly embroiled in criminal liability, the answer surely is that the statute provides that a defendant must be proven to have knowledge of the proscribed advocacy before he may be convicted. It is, of course, true that quasi-political parties or other groups that may embrace both legal and illegal aims differ from a technical conspiracy, which is defined by its criminal purpose, so that all knowing association with the conspiracy is a proper subject for criminal proscription as far as First Amendment liberties are concerned. If there were a similar blanket prohibition of association with a group having both legal and illegal aims, there would indeed be a real danger that legitimate political expression or association would be impaired, but the membership clause, as here construed, does not cut deeper into the freedom of association than is necessary to deal with "the substantive evils that Congress has a right to prevent." Schenck v. United States, 249 U.S. 47, 52. The clause does not make criminal all association with an organization which has been shown to engage in illegal advocacy. There must be clear proof that a defendant "specifically intend[s] to accomplish [the aims of the organization] by resort to violence." Noto v. United States, post at p. 299. Thus, the member for whom the organization is a vehicle for the advancement of legitimate aims and policies does not fall within the ban of the statute: he [p230] lacks the requisite specific intent "to bring about the overthrow of the government as speedily as circumstances would permit." Such a person may be foolish, deluded, or perhaps merely optimistic, but he is not by this statute made a criminal.
We conclude that petitioner's constitutional challenge must be overruled. [n21]
Only in rare instances will this Court review the general sufficiency of the evidence to support a criminal conviction, for ordinarily that is a function which properly belongs to and ends with the Court of Appeals. We do so in this case and in No. 9, Noto v. United States, post, p. 290 -- our first review of convictions under the membership clause of the Smith Act -- not only to make sure that substantive constitutional standards have not been thwarted, but also to provide guidance for the future to the lower courts in an area which borders so closely upon constitutionally protected rights.
On this phase of the case, petitioner's principal contention is that the evidence was insufficient to establish that the Communist Party was engaged in present advocacy of violent overthrow of the Government in the sense required by the Smith Act, that is, in "advocacy of action" for the accomplishment of such overthrow either immediately or as soon as circumstances proved propitious, and uttered in terms reasonably calculated to "incite" to such action. See Yates v. United States, supra, 318-322. This contention rests largely on the proposition that the [p231] evidence on this aspect of the case does not differ materially from that which the Court in Yates stated was inadequate to establish that sort of Party advocacy there.
In Yates, the Government sought to use the Communist Party, or at least the California branch of the Party, as the conspiratorial nexus between various individuals charged, among other things, with a conspiracy to engage in illegal advocacy. Upon reversal here for error in the trial court's charge on the nature of the advocacy proscribed by the Smith Act, this Court, in the exercise of its powers under 28 U.S.C. § 2106 [n22] went on to consider the adequacy of the evidence for the purpose of determining as to which defendants an acquittal should be ordered, and as to which ones the way for a new trial should be left open. In the process, it was stated that the Government's "Party conspiratorial nexus" theory was unavailing because the evidence fell short of establishing that the Party's advocacy constituted "a call to forcible action" for the accomplishment of immediate or future overthrow, in contrast to the teaching of mere "abstract doctrine" favoring that end. 354 U.S. at 329. At the same time, however, it was found that the record reflected certain episodes which, it was considered, might permissibly lend themselves to an inference of illegal advocacy by particular Party members (see id. at 331-333). It was concluded, however, that these and similar episodes were too "sporadic" and remote (id., 330) to justify their attribution to the Party, possibly casting its abstract teaching of the "Communist classics" in a different mold. Accordingly, the Court directed an acquittal of those defendants who had not themselves been connected with such episodes. [p232]
We agree with petitioner that the evidentiary question here is controlled in large part by Yates. The decision in Yates rested on the view (not articulated in the opinion, though perhaps it should have been) that the Smith Act offenses, involving as they do subtler elements than are present in most other crimes, call for strict standards in assessing the adequacy of the proof needed to make out a case of illegal advocacy. This premise is as applicable to prosecutions under the membership clause of the Smith Act as it is to conspiracy prosecutions under that statute as we had in Yates.
The impact of Yates with respect to this petitioner's evidentiary challenge is not limited, however, to that decision's requirement of strict standards of proof. Yates also articulates general criteria for the evaluation of evidence in determining whether this requirement is met. The Yates opinion, through its characterizations of large portions of the evidence which were either described in detail or referred to by reference to the record, indicates what type of evidence is needed to permit a jury to find that (a) there was "advocacy of action" and (b) the Party was responsible for such advocacy.
First, Yates makes clear what type of evidence is not, in itself, sufficient to show illegal advocacy. This category includes evidence of the following: the teaching of Marxism-Leninism and the connected use of Marxist "classics" as textbooks; the official general resolutions and pronouncements of the Party at past conventions; dissemination of the Party's general literature, including the standard outlines on Marxism; the Party's history and organizational structure; the secrecy of meetings and the clandestine nature of the Party generally; statements by officials evidencing sympathy for and alliance with the U.S.S. R. It was the predominance of evidence of this type which led the Court to order the acquittal of several Yates defendants, with the comment that they had [p233] not themselves "made a single remark or been present when someone else made a remark which would tend to prove the charges against them." However, this kind of evidence, while insufficient, in itself, to sustain a conviction, is not irrelevant. Such evidence, in the context of other evidence, may be of value in showing illegal advocacy.
Second, the Yates opinion also indicates what kind of evidence is sufficient. There, the Court pointed to two series of events which justified the denial of directed acquittals as to nine of the Yates defendants. The Court noted that with respect to seven of the defendants, meetings in San Francisco which were described by the witness Foard might be considered to be "the systematic teaching and advocacy of illegal action which is condemned by the statute." 354 U.S. at 331. In those meetings, a small group of members were not only taught that violent revolution was inevitable, but they were also taught techniques for achieving that end. For example, the Yates record reveals that members were directed to be prepared to convert a general strike into a revolution and to deal with Negroes so as to prepare them specifically for revolution. In addition to the San Francsico meetings, the Court referred to certain activities in the Los Angeles area "which might be considered to amount to ‘advocacy of action'" and with which two Yates defendants were linked. Id. 331-332. Here again, the participants did not stop with teaching of the inevitability of eventual revolution, but went on to explain techniques, both legal and illegal, to be employed in preparation for or in connection with the revolution. Thus, one member was "surreptitiously indoctrinated in methods . . . of moving ‘masses of people in time of crisis' "; others were told to adopt such Russian pre-revolutionary techniques as the development of a special communication system through a newspaper similar to Pravda. Id. 332. Viewed together, [p234] these events described in Yates indicate at least two patterns of evidence sufficient to show illegal advocacy: (a) the teaching of forceful overthrow, accompanied by directions as to the type of illegal action which must be taken when the time for the revolution is reached, and (b) the teaching of forceful overthrow, accompanied by a contemporary, though legal, course of conduct clearly undertaken for the specific purpose of rendering effective the later illegal activity which is advocated. Compare Noto v. United States, post at 297-299.
Finally, Yates is also relevant here in indicating, at least by implication, the type and quantum of evidence necessary to attach liability for illegal advocacy to the Party. In discussing the Government's "conspiratorial nexus theory" the Court found that the evidence there was insufficient because the incidents of illegal advocacy were infrequent, sporadic, and not fairly related to the period covered by the indictment. In addition, the Court indicated that the illegal advocacy was not sufficiently tied to officials who spoke for the Party as such.
Thus, in short, Yates imposes a strict standard of proof, and indicates the kind of evidence that is insufficient to show illegal advocacy under that standard, the kind of evidence that is sufficient, and what pattern of evidence is necessary to hold the Party responsible for such advocacy. With these criteria in mind, we now proceed to an examination of the evidence in this case.
We begin with what was also present in Yates, the general evidence as to the doctrines, organization, and tactical procedures of the Communist Party, exposited by Lautner, the Government's foundational witness both here and in Yates. Together with documentary evidence, Lautner's testimony, based on high-level participation in Party affairs from 1929 to 1950, furnished the necessary background in Party theory and terminology which is [p235] crucial to the proper appreciation of the tenor of Party pronouncements, for these pronouncements, taken out of this larger context, might appear harmless and peaceable without in reality being so. The distinction that was drawn in Yates between theoretical advocacy and advocacy of violence as a rule of action is, of course, basic, but when the teaching is carried out in a special vocabulary, knowledge of that vocabulary is at least relevant to an understanding of the quality and tenor of the teaching.
Lautner's testimony, having covered the pre-war history of the Party, passed to the 1945 reconstitution of the organization. Prior to that time the Party, as the Communist Political Association, had adhered to the position that the change to a Communist society could be achieved through peaceful, democratic means. The reconstitution, which was finally approved at a National Convention in July of 1945, involved a return to the principles of Marxism-Leninism. As found in the so-called Communist classics, the adoption of a program of industrial concentration, the increased effort among Negroes, especially in the South, the complete repudiation of the former Party leader, Browder, and his doctrine of "revisionism," all signified, so Lautner testified, that the United States was henceforth to be regarded as no exception to the teachings of Lenin that communism could only be achieved in an industrialized nation such as this by resort to violent revolution, and that a belief in peaceful means was foolishness or treachery. Lautner testified that the industrial concentration program, as well as the emphasis on the Negro minority, was an articulation of this doctrine, in that it involved a concentration on those elements in society which the Party believed could do most damage, in time of crisis, to the existing social fabric in relation to their numbers, and that victory at the polls was not its concern. Lautner testified that it was further resolved at the 1945 National Convention that, in order to implement [p236] the principles of the reconstitution, a program of thorough reeducation of the whole Party membership should be undertaken, and Lautner himself was charged with the duty of carrying out this reeducation as a District Organizer and State Chairman. The balance of Lautner's testimony was devoted to a detailed description of the elaborate underground "apparatus" which he and others were charged with setting up in the various portions of the country assigned to them.
Mrs. Hartle testified as to her activities in the Party, primarily in the Pacific Northwest area, from 1934 to approximately 1952. Mrs. Hartle confirmed, in many respects, Lautner's testimony as to Party teaching and doctrine throughout this period. After the 1945 reconstitution, she was sent to the National Training School in New York, where thirty "officers and functionaries" from various parts of the country were "re-educated" in accordance with the decisions and resolutions of the 1945 Convention. She was taught about "dialectical materialism," and the theory of struggle between the capitalist class and the working class. They were taught
and reference was made to a quotation . . . that it is the duty of a revolutionary not to try to gloss over this class struggle or to try to compromise it, but to unravel it, to allow this class struggle and help this class struggle to unfold, the clash to proceed.
The class was told that "it is the duty of a Marxist-Leninist to be a revolutionary, and not a reformist." They were further instructed "that the United States . . . was objectively at the stage for Proletarian revolution," that the time for the proletariat revolution would come when the objective conditions of political or economic crisis coincided with the "subjective condition" of a Communist Party which was large enough, with enough "influence" among the working classes, "to give the necessary leadership to lead to the seizure of power." [p237]
Much of the testimony summarized so far may indeed be considered to relate to the mere theory of revolution, abstract advocacy. However, the teaching at the National Training School also descended to a lower level of generality. Mrs. Hartle was told that the "role" of the Communist Party was "preparing the workers and the people to be ready to be able to take power, to know how to take power" when a "revolutionary situation arose." At that time, "the plan and program of the Party would be to lead the working class to seize power" and "to smash the Bourgeois state machine." With respect to this latter task, the class was told:
. . . the Bourgeois state machine is not smashed after the seizure of power, but in the course of seizing power that the armies, the police, the prisons have to be dealt with and smashed up and rendered inoperative in the course of the seizure of power, that other matters, that some other matters in replacing the, a state, such as the, some of the administrative apparatus and some other matters would take a longer period of time, but the forcible elements of the capitalist state must be smashed in the course of taking power, but some other things like reorganizing the banking system, or some matters like that, could be done in a somewhat longer process.
In pressing toward the fulfillment of the "subjective conditions" necessary for such action, Mrs. Hartle was taught that "the struggles and activities of the Communist Party prepare the working class for this act of seizure of power," and the history of the Russian Communist Party and Revolution was taught in the school and the events and principles of this history were constantly related to contemporary conditions in the United States. Thus, for example, the class was told that the coalition of workers and peasants which had proved so successful [p238] in Russia should have its counterpart in America in a coalition of workers and Negroes, especially in the South. Following her classes at the National Training School, Mrs. Hartle returned to Washington, where she helped to recruit and organize in "underground fashion" the employees of the Boeing Aircraft Plant in that State. At the same time, Mrs. Hartle was active in Party schools in her area. She testified that she had both been instructed and had herself taught:
. . . the means by which the ultimate goal might be attained was that those means would be forcible. The teaching was that any teaching, any theory of a peaceful road to socialism, or a growing over from capitalism to socialism was a betrayal of the working class and that the Communist Party leading the working class would have to arm it in the first place with the theory that the workers must know and must be prepared to know that they can only take power forcibly.
* * * *
The action that Communist Party members should take in preparing for the ultimate goal that I was taught and that I taught were to build the Communist Party as the vanguard party of the working class, a theoretically equipped party, equipped with the theory of Marxism-Leninism, a highly organized party that could act as a unit, as a monolithic whole, with democratic centralism, the principle guiding it . . . , and that the Communist Party should be the connection between the vanguard and the working class millions in this preparation by working with and winning the confidence of the working class and allies of the working class, such as, the Negro people, the poor farmers, other national groups, and in this way, in the course of struggle, constant struggle taking the forms of strikes [p239] and demonstrations and picket lines and marches and various kinds of activities to train the working class and the people for revolutionary battie.
The witness Duran, who attended a Party School in Los Angeles in 1951, described what he had been taught by one Moreau, a member of the National Education Commission of the Communist Party:
He divided in his explanation the . . . Proletariat . . . as being divided into two groups. Those in industry that would lead the revolution, and those in agriculture that would follow, and speaking about the revolution, Professor Moreau stated to the class in a very emotional manner that he could see himself carrying a gun against the capitalist S.O.B.'s and explained to the class it was all based on the science of Marx and Lenin.
* * * *
In discussing the Proletarian Revolution more thoroughly, Professor Moreau explained throughout the school that the Proletarian Revolution would only come about if a Bolshevik rank and file, the sincere Communists, would get out and teach, and teach the people, the desirability of changing the system and the necessity of changing them, and in doing that, we had to teach the people that you cannot change the capitalist system to a Socialist system to socialism successfully, the peaceful way; it had to be erupted from, and had to be taken away by force and violence, away from them and the entire state machinery of the Bourgeoisie smashed, the F.B.I., the courts and the Army and the Navy, whatever was on it, what -- the entire instrumentality of the Bourgeoisie had to be smashed and substituted by the Proletarian machinery.
. . . and during the period of the revolution the transition, the violent transition, we had to make [p240] mass work to get the masses away from the Bourgeoisie so they would not join a counterrevolution movement.
It meant, after the people of the Communist Party, the vanguard, had become satisfied, that the Bourgeoisie machinery was smashed, and they were in control, then they also had to collect guns from the people and control the people themselves.
Q. Do I understand, Mr. Moreau [sic] that, during this period of revolution, the people, that is, the masses of the people, would be carrying guns?
A. Yes, sir.
Q. And after the revolution do I understand that the Party would go around and collect these guns and take them away from the people?
A. Yes, sir; take them away from those that helped them overthrow the capitalist system in order to assure the revolution itself. . . .
Immediately after the overthrow of the capitalist system and establishment of the dictatorship of the Proletariat, it became necessary for a Communist to establish Red Army in this country, not only to secure and maintain the dictatorship of the Proletariat, but control the people as well, and those people that did help overthrow the Government would not have any civil rights whatsoever, no voting rights, or anything; they would be dished out to them according to the way they felt, way they fell in with the Communist office by the dictatorship.
Q. Now, Mr. Duran, what, if anything, did Mr. Moreau teach you in this school about the role that would be played by the Communist Party during this period of revolution when the Government would be overthrown by force and violence?
A. The role of the Communist Party, and specifically within the Communist Party, the Bolsheviks [p241] was to play a vanguard role, a leading role; that is explained scientifically in that so that first we teach the people the desirability of overthrowing them and teach them the, it could only be done through the Proletarian Revolution, and then, when the time is ripe, we could stampede them against the capitalist class.
Duran also testified to what he had been taught by Art Berry, District Organizer for seven States, in a Colorado school in 1952:
. . . we were discussing the scientific application of Marx and Lenin to the transition period between capitalism and socialism, and he demonstrated this with the kettle of water, that you could put a quantitative amount of water in a kettle and set it somewhere, nothing would happen, just like the masses, nothing does happen.
. . . [he] said, however, if you get that same amount, same kettle with the same amount of water in it, and put fire underneath it, then you begin to get quantitative changes, and eventually it reaches a nodule point to where it has a qualitative and abrupt transition into steam. He continued, same applied to the development of the revolution in this sense, the American people will not and cannot make a successful change over from capitalism to socialism by themselves, like the fire underneath the water, the Communist Party teaches and leads them to where when the society reaches that nodule point, the Communist people teaches the people before and then leads them to make that abrupt change into the society of socialism.
* * * *
Substantially, within the same explanation of violent overthrow of the Government . . . , he stated [p242] that not only would it be that, but that we would have to set up barricades, establish a central point from where we would participate from; he stated the "we," literally speaking, "we," would have to have a central point, because, during the revolution, it may become necessary to ebb, retreat in certain battles, and we would have to learn to retreat in an organizational way and a correct way. It was essential to learn to ebb as it was to flow on the revolution.
In the ebbing, we were to see that we ebb before the enemy wiped everybody out. Ebbing to the central point that had been barricaded, reorganization, and then at the correct time start flowing forward in the revolution.
The witness Obadiah Jones testified concerning a Party Training School in St. Louis which he attended in 1947. Jones was taught "that the only way the national problem could be solved would be in connection with the Proletariat Revolution." Jones was also instructed as to the nature of a Communist army:
A. He said general staff of an army was different from the Communist Party . . . general staff of an army operated from a safe spot from behind the line and led the army from a far distance, and that the Communist Party went forth and fought with the workers.
Q. Did he say anything with reference to the techniques?
A. Yes, he said that you couldn't be a good leader without knowing all of the techniques of fighting.
Q. Did he say anything with respect to carrying out instructions?
A. Yes, sir.
Q. What did he say in that connection?
A. He said that capitalists in the army did not [p243] carry out the instructions in full, but the Communists did, irregardless of what the cost would be, they would carry out instructions completely.
At the final session, the students were required by the instructor to take a pledge:
The pledge was each of us are Communists or members of the Party and each of us have a responsibility and we must carry out our responsibility and work for the interests of the Party and its recipients and carry out the full will of the Party even though it meant to fight and to kill, we must carry out the demands of the Party and all of them.
The witnesses Clontz, Childs, and Reavis testified primarily as to their dealings with petitioner Scales. We regard this testimony, which finds no counterpart in the Yates record with respect to any of the defendants whose acquittal was directed, as being of special importance in two ways: it supplies some of the strongest and most unequivocal evidence against the Party based on the statements and activities of a man whose words and deeds, by virtue of his high Party position, carry special weight in determining the character of the Party from the standpoint of the Smith Act, and it appears clearly dispositive as to the quality of petitioner's Party membership, and his knowledge and intent, when we come to consider him not as a Party official, but as the defendant in this case. [n23] [p244]
In 1948, Ralph C. Clontz, Jr., then a student at Duke Law School, undertook to furnish the F.B.I. with information he had gained about Communist Party activities in North Carolina, and to volunteer his services in attempting to penetrate the Party to acquire further information. As a result, in September of that year, Clontz sent a postcard to petitioner, informing him that he was a law student and that he was interested in communism. Petitioner replied by sending Clontz "a large cardboard box filled with Communist literature." An accompanying letter, headed "Carolina District Communist Party U.S.A." with the notation "Junius Scales, Chairman," explained:
Under separate cover, I have already sent you a rather varied sample of our literature. I hope you will give it close attention. If I can discuss any matter relating to my Party and its program with you in person, I will be glad to do so.
Several days later, Clontz went to visit petitioner, and thus began a relationship which was to bring him into intimate contact with the Communist Party, its teachings, purposes and activities.
At an early meeting between the two, petitioner told Clontz that it was impossible for the Communist Party to succeed to power through educating the people in this country and gaining their votes at the polls, but that a forceful revolution would be necessary. At a later meeting, the discussion was not limited to the theoretical inevitability of revolution, but went beyond the theory itself to an explanation of "basic strategy" which the [p245] Communist Party was using to give concrete foundation to the theory, i.e., to bringing about the revolution:
The defendant [petitioner] explained that basically their strategy was bottomed on a concept that there were two classes of people in this country, that could be used by the Communist Party to foment a revolution.
The first class he termed the working class or Proletariat, working class, he said, had as its natural born leaders or vanguard, the Communist Party.
The second class, he described, in this country was what he termed the Negro nation. The Negro nation he described as a separate nation in what he termed the Black Belt, including thirteen Southern States, and the strategy of the Communist Party was to bring the working class, led by the Communist Party, and what he termed the Negro nation, together, to bring about a forceful overthrow of the Government.
Now Scales and the Communist Party taught that the basic strategy of the Communist Party would never change, but that tactics might be altered as the situation changed.
On petitioner's invitation, Clontz joined the Communist Party on January 17, 1950. He was not assigned to a particular group, but became a member "at large," in order to continue his instruction under petitioner. In the course of this instruction, petitioner repeatedly told Clontz of the necessity for revolution to bring about the Dictatorship of the Proletariat. Scales analogized the situation in the United States to that, in Russia prior to the 1917 Revolution. He pointed out that revolution would be "easier" in this country than it had been in Russia:
that, while in the Soviet Union there had been no one to help the Soviet Party, that, in this country, [p246] when the revolution started, we would have the benefit of the help from the mother country, Russia, in bringing about our own revolution, because part of the purposes of the Communist Party in the Soviet Union was international in scope, and that we naturally would continue to receive help in all circumstances from the Soviet Party when the revolution was started here in this country.
Petitioner explained that the Soviet Union could not be expected to land troops to start a revolution here. A similar procedure had been unsuccessful in China. Rather, he said "that we Communists in this country would have to start the revolution, and we would have to continue fighting it," but that the Soviet Union would aid the Communist Party in this endeavor by furnishing it "with experienced revolutionaries from Russia." [n24] He added that,
if the United States declared war on the Communists in their revolution, then the Soviet Union would land troops, and he said that would be a bloody time for all.
When asked [p247] by Clontz when all this would occur, Scales noted that a "depression would greatly accelerate the coming of the revolution" if the Communists used it properly to prepare the masses of the people.
Petitioner arranged for Clontz to be awarded a scholarship to study in New York at the Jefferson School of Social Science, an official Communist Party School, during the month of August, 1950. Because Clontz arrived at a time when few scheduled courses were being offered, the bulk of his training at the school was received in private instruction from Doxey A. Wilkerson, the teacher with whom petitioner had communicated in arranging Clontz' scholarship. [n25] Wilkerson, like petitioner, told [p248] Clontz,
that the Communist Party recognized and expressed to themselves that the only kind of means would be proper means, which would be forceful means, that no longer was there any even pretense among intelligent Communists that any voting system or any people's election could bring this government.
He also stated, as Scales had, that
the revolution basically would come about by combining the forces of what had been already identified as the Negro nation and the working class as the vanguard.
In line with this strategy, Wilkerson advised Clontz that he should not let his membership in the Communist Party become known, that, by remaining "under cover," he "would be much more helpful to the Party when the revolution came." As part of his undercover activity, Clontz was directed to attempt to infiltrate various organizations of the working class in order to achieve "a background of respectability" and to be able to lead such organizations
toward the goal of the Communist Party, . . . the undermining of the Government and overthrowing the Government, bringing communism in the United States.
But Clontz was not to lose contact with the Party, for if he "got isolated without Party direction . . . , [his] efforts would be pretty [p249] largely wasted." In connection with these instructions, Wilkerson mentioned
one of the things that frightened the United States leaders was they knew that not only did they have to contend with China and the other Communist-dominated countries, but that also in every capitalist country the working class party, the Communists, would be working from within.
When Clontz returned to North Carolina, he reported to petitioner on his activities at the Jefferson School. He also informed petitioner, under instructions from the F.B.I., that he wished to move to New York. Petitioner arranged for Clontz to remain under his direction and to pay dues to him, while in New York, rather than effecting a formal transfer. Clontz moved to New York in March of 1951. While there Scales directed him to "get in with the A.C.L.U. organization to report on what value they might have in the coming struggle. . . ." Clontz had also been advised by an associate of petitioner to "infiltrate . . . the Civilian Defense setup."
The witnesses Childs and Reavis also testified to their relationship with Scales, who, among other things, arranged for their attendance at Party schools where their instruction followed much the same pattern as that described by Clontz. [n26] In 1952, Childs attended a "Party [p250] Training School" of which petitioner was a director. The school was given "for outstanding cadres in the North and South Carolina and Virginia Districts of the Communist Party." It was held on a farm and strict security measures were taken. The District Organizer of Virginia instructed at the school. He told the students that "the role of the Communist Party is to lead the working masses to the overthrow of the capitalist government." With respect to the preliminary task of gaining the "broad coalition" necessary to achieve this task, he stated that,
. . . the Communist Party has a program of industrial concentration in which they try to get people, that is, people who are Communist Party members, into key shops or key industries which the Party has determined or designated to be industrial concentration industries or plants. This is so that the Communist Party members in a particular plant will be able to have a cell, or a Communist Party group in which they will be able to more effectively plan for such things as attempting to control the union in that particular plant.
And, in a compulsory recreation period, this same instructor gave a demonstration of jujitsu and, explaining that the students "might be able to use this on a picket line," how to kill a person with a pencil. According to Childs' testimony,
what he showed us to do was to take our pencil, . . . just take the pencil and place it simply in the palm of your hand so that the back will rest against the base of the thumb, and then we were to take it, and the person, and give a quick jab so that it would penetrate through here [demonstrating], and enter the [p251] heart, and then if we could not do that, we just take it and grab it at the base of the throat.
Reavis attended the Party's New York Jefferson School in 1942. In a course on "Negro History," the students, drawn primarily from the South, were taught that
. . . the Negro people was the only revolutionary group within the United States that we could align themselves [sic] with, and hope to reach their [sic] gains through the avenue of force and violence, by overthrow of the Government, by Proletariat faction. . . .
Reavis was later advised to seek employment at the Western Electric Plant in Winston-Salem. He stated:
I bumped into Mr. Scales at Harvey's home and I -- the report said . . . the advice I'd been getting was confirmed by him. I advanced the question on what I should do in case I did get employment there at Western Electric, and I knew it was a, Government work, what I should do in case I was asked to sign certain papers, and I was told to do the same, that they had when signing a Taft-Hartley affidavit, to go ahead and sign them, that, before they did, the defendant asked me if I had signed any papers that might be used as proof that I was in the Party, and I didn't remember any.
We conclude that this evidence sufficed to make a case for the jury on the issue of illegal Party advocacy. Dennis and Yates have definitely laid at rest any doubt that present advocacy of future action for violent overthrow satisfies statutory and constitutional requirements equally with advocacy of immediate action to that end. 341 U.S. at 509; 354 U.S. at 321. Hence, this record cannot be considered deficient because it contains no evidence of advocacy for immediate overthrow.
Since the evidence amply showed that Party leaders were continuously preaching during the indictment period [p252] the inevitability of eventual forcible overthrow, the first and basic question is a narrow one: whether the jury could permissibly infer that such preaching, in whole or in part,
was aimed at building up a seditious group and maintaining it in readiness for action at a propitious time . . . the kind of indoctrination preparatory to action which was condemned in Dennis.
Yates, supra at 321-322. On this score, we think that the jury, under instructions which fully satisfied the requirements of Yates, [n27] was entitled to infer from this [p253] systematic preaching that, where the explicitness and concreteness, of the sort described previously, seemed necessary and prudent, the doctrine of violent revolution -- elsewhere more a theory of historical predictability that a rule of conduct -- was put forward as a guide to future action, in whatever tone, be it emotional or calculating, that the audience and occasion required; in short, that "advocacy of action" was engaged in.
The only other question on this phase of the case is whether such advocacy was sufficiently broadly based to permit its attribution to the Party. We think it was. The advocacy of action was not "sporadic" (cf. p. 226, supra), the instances of it being neither infrequent, remote in time, nor casual. [n28] It cannot be said that [p254] the jury could not have found that the criminal advocacy was fully authorized and condoned by the Party. We regard the testimony of the witnesses, whose credibility, of course, is not for us, as indicating a sufficiently systematic and substantial course of utterances and conduct on the part of those high in the councils of the Party, including the petitioner himself, to entitle the jury to infer that such activities reflected tenets of the Party. The testimony described activities in various States, including the teaching at some seven schools, among them the national Party school. The witnesses told of advocacy by high Party officials, including that of leaders of the Party in nine States. Further, there was testimony that the Party followed the principle of "democratic centralism" whereby a position once adopted by the Party must be unquestionably adhered to by the whole membership. The conformity of the views expressed and the terms employed in advocating violent overthrow in such States as Washington, North Carolina, Missouri, Colorado and Virginia could reasonably be taken by the jury as a practical manifestation of "democratic centralism." Another concrete illustration of this principle could have been found in the circumstance that, in almost every instance where a speaker engaged in advocacy of violent overthrow, he not only advocated violence to his audience but urged others to go out and do likewise. All of these factors combine to justify the inference that the illegal individual advocacy as to which testimony was adduced was in truth the expression of Party policy and purpose.
The requirement of Party imputability is adequately met in the record. (See note 18, supra.)
The sufficiency of the evidence as to other elements of the crime requires no exposition. Scales' "active" membership in the Party is indisputable, and that issue was properly submitted to the jury under instructions that [p255] were entirely adequate. [n29] The elements of petitioner's "knowledge" and "specific intent" (ante, p. 220) require no further discussion of the evidence beyond that already given as to Scales' utterances and activities. Compare Noto v. United States, post at 299-300. They bear little resemblance to the fragmentary and equivocal utterances and conduct which were found insufficient in Nowak v. United States, 356 U.S. 660, 666-667, and in Maisenberg v. United States, 356 U.S. 670, 673.
We hold that this prosecution does not fail for insufficiency of the proof.
IVALLEGED TRIAL ERROR
Petitioner contends that a number of errors were committed, having the effect of vitiating the fairness of his trial. For reasons substantially similar to those given by the Court of Appeals (260 F.2d 386), we find that none of petitioner's contentions raise points meriting reversal.
1. Admission of Remote or Prejudicial Evidence
Petitioner complains as to the admission of certain evidence relating to the Party's general or specific purposes. In particular, he objects to the admission of evidence about the Party's program in the so-called "Black Belt," and especially to the admission of a pamphlet called "I Saw the Truth in Korea," which contained [p256] a very gruesome description of alleged American atrocities in Korea. There can be no doubt that this matter, and particularly the latter, would not have reflected well on the petitioner or the Party in the eyes of the jury, but if it was relevant to an element of the crime, then whether its asserted prejudicial effect so far outweighed its probative value as to require exclusion of the evidence, was a decision which rested in the sound discretion of the trial judge. Particularly in light of the fact that the most damaging of this material emanated from petitioner himself (260 F.2d at 38), we cannot say that its admission involved an abuse of discretion which would warrant our reversal of the conclusions of the trial judge and the Court of Appeals on this score.
We therefore need only consider whether the complained-of evidence was legally relevant and therefore admissible. As we have pointed out in our review of the record, the jury could have inferred that part of the Communist Party's program for violent revolution was the winning of favor with the Negro population in the South, which it thought was particularly susceptible to revolutionary propaganda and action. Surely, then, the evidence of the Party's teaching that the Negro population should be given the right to form a separate nation is not irrelevant to the issue of whether or not the Party's program as a whole constituted a call to stand in readiness for violent action, when this particular plank in the platform was intended as bait for one of the substantial battalions in the hoped-for revolutionary array. Of course, the preaching that the Negro population in the South has the right to form a separate nation does not, of itself, constitute illegal advocacy. But neither does the teaching of the abstract theory of Marxism-Leninism, which we have held cannot, alone, form the basis for a conviction for violation of the Smith Act, Yates v. United States, supra; yet it cannot be seriously urged [p257] that evidence of such teaching is legally irrelevant to the charge. Similarly, the evidence of the pamphlet on alleged American atrocities in Korea cannot be said to be irrelevant to the issue of illegal advocacy by the Party. Once again, the pamphlet may not, in itself, constitute such an incitement to violence as would justify a finding that the Party advocated violent overthrow, but it is possible to infer from it that it was the purpose of the Party to undermine the Government in the eyes of the people in time of war as a preparatory measure, albeit legal in itself, to the teaching and sympathetic reception of illegal advocacy to violent revolution.
Petitioner also argues that this and other evidence was not connected up with him or his activities. Whether it was or not, since it is necessary under the membership clause to prove the advocacy of the Party as an independent element of the offense, this renders admissible evidence not connected up with the defendant in the accepted conspiracy sense. (See note 23, supra.) Doubtless because of this there is a special need to make sure that the evidence establishing a defendant's personal knowledge of illegal Party advocacy and his intent in becoming or remaining a Party member to accomplish violent overthrow is cogent and adequately brought home to him. But, having said that, we have said all, in respect to petitioner's claim on this point.
2. The "Jencks" Claim
When this case was first before us, we reversed the conviction, 355 U.S. 1, on the authority of our decision in Jencks v. United States, 353 U.S. 657. Before the second trial, Congress enacted the so-called Jencks statute, 18 U.S.C. § 3500. Petitioner, as we understand him, does not now argue that that statute was incorrectly applied in his case; rather, he attacks, on constitutional grounds, the statute itself. That the procedure set forth in the statute [p258] does not violate the Constitution, and that the procedure required by the decision of this Court in Jencks was not required by the Constitution was assumed by us in Palermo v. United States, 360 U.S. 343. It is enough to say here that there can be no complaint by a criminal defendant that he has been denied the opportunity to examine statements by government witnesses which do not relate to the subject matter of their testimony, for such statements bear no greater relevance to that testimony which he seeks to impeach than would statements by persons unconnected with the prosecution. Whether the statements so relate to prosecution testimony is a decision which is vested not in the Government, but in the trial judge, with full opportunity for appellate review. Once this question has been determined, whether the statements may be useful for purposes of impeachment is a decision which rests, of course, with the defendant himself.
Petitioner also objects to the limitation of the Act to written statements signed or adopted by the witness or to any form of substantially verbatim transcription of an oral statement by the witness. However, petitioner does not assert that he has been prejudiced by this provision, or that any statement or document requested by him was withheld on the authority of the statute. In these circumstances, we perceive no basis for this aspect of petitioner's claims.
3. Congressional Findings in the Communist Control Actof 1954 and the Internal Security Act of 1950
Petitioner asserts that the congressional findings as to the character of the Communist Party contained in both statutes deprived him of a fair trial on the issue of the character of e Party. That legislative action may have the effect of precluding a fair trial is not impossible, see Delaney v. United States, 199 F.2d 107, but petitioner's claim here appears to be no more than an afterthought. [p259] There is no showing of any prejudice, nor that, during the voire dire examination of jurors, petitioner attempted to ascertain whether any juror had even heard of these enactments, much less that petitioner attempted to have any juror disqualified on that ground. We cannot on this record regard this as a substantial contention.
Finally, for the reasons stated by the Court of Appeals, 260 F.2d at 44-46, we think that petitioner waived any right he might have had to question the method of choosing grand jurors by his failure to comply with Rule 12, Fed.Rules Crim.Proc., and further that no impropriety in the method of choosing grand jurors has been shown.
The judgment of the Court of Appeals must be
1. Section 2385 (whose membership clause we place in italics) reads:
Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or
Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or
Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof --
Shall be fined not more than $20,000 or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
If two or more persons conspire to commit any offense named in this section, each shall be fined not more than $20,000 or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
2. Petitioner was first convicted before a jury in the Middle District of North Carolina in 1955. The conviction was upheld by the Court of Appeals, 227 F.2d 581, and we granted certiorari at the 1955 Term. 350 U.S. 992. The case was first heard here at the 1956 Term, and was later set for reargument at the 1957 Term. Before reargument, the judgment of conviction was reversed upon the Solicitor General's concession that this Court's intervening decision in Jencks v. United States, 353 U.S. 657, in any event, entitled Scales to a new trial. Scales was retried, and again convicted in 1958. The Court of Appeals again affirmed, 260 F.2d 21, and we again brought the case here. 358 U.S. 917. Argument on the present writ was first heard at the 1958 Term, the case being set for reargument at the following Term under an order in which the Court propounded certain questions to which counsel were requested particularly to address themselves. 360 U.S. 924. Before reargument was had, certiorari was granted (361 U.S. 951) in Communist Party v. Subversive Activities Control Board (No. 12, decided today, ante p. 1), certain of the statutory and constitutional issues in which were closely related to some of those in the Scales case. Because of this interrelation of the two cases, the Court deemed it advisable that they should be heard and considered together, and accordingly put over this case for argument with the Communist Party case at the present Term. 361 U.S. 952.
3. E.g., 18 U.S.C. § 2385 (the remaining provisions of the Smith Act); 29 U.S.C. § 159(h), repealed by the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, § 201(d) (non-Communist affidavits to be filed by union officers); or any of the offenses created by the Internal Security Act of 1950, for instance, under §§ 4, 5 or 6.
4. The report also stated:
Nowhere does the bill restrict or impair the constitutional privilege against self-incrimination under the fifth amendment. . . . As to whether any registration itself infringes upon the privilege of self-incrimination, . . . [w]ith respect to individual members, a person may be compelled to register, keep records, make reports or statements, etc., concerning any activity which the State properly may regulate, and he is not protected therefrom by the privilege. . . . This becomes purely academic, however, in the light of the specific bar to self-incrimination written into section 4(f).
Id. at pp. 20-21.
5. Senator Lehman, arguing that the bill required self-incrimination, stated:
We already have on the statute books more than 20 laws to control and penalize subversive activities. . . . We also have the Smith Act, recently upheld by the Court of Appeals, which makes membership in the Communist Party prima facie evidence of criminal intent. . . .
. . . [R]egistration would constitute self-incrimination, if not under the terms of this law, then under the terms of the Smith Act.
96 Cong.Rec. 14190.
As the debate continued, Senator Long said:
I was under the impression from hearing the Senator from New York yesterday that he said that, under a previous statute, it was unlawful to belong to an organization that advocated the overthrow of the United States government by force . . . , that there was a previous act . . . which made it unlawful for one to be a member of [such] an organization. . . .
* * * *
Senator Ferguson. Is it not true that Judge Medina, in his charge to the jury in the trial of the 11 Communists, told them that mere membership in the Communist Party was not sufficient to warrant the jury in convicting them under the Smith Act? [The petitioner in the present case correctly notes that this reference was to the Dennis case involving an indictment for conspiracy to advocate, not the membership clause of the Smith Act.]
Mr. Mundt [who was one of the proponents of the original bill]. Precisely.
Mr. Ferguson. So that it could not apply to that law.
Mr. Mundt. It could not conceivably apply. . . . [I]t would still be an incorrect interpretation of the [Smith] Act. . . .
96 Cong.Rec. 14235.
Senator McCarran, whose name the new omnibus Senate measure bore, stated in connection with the Smith Act:
It was arresting to hear the Senator from New York declare on Tuesday that "[t]he Smith Act . . . makes membership in the Communist Party prima facie evidence of criminal intent."
. . . [O]f course, the statement about the Smith Act making membership in the Communist Party prima facie evidence of criminal intent simply has no foundation in fact.
. . . Of course, in order to make a statement like the one he made, a man must not have read Judge Medina's scholarly charge to the jury, in which he specifically pointed out that the Communist membership or affiliation of the 11 defendants was not . . . a part of the charged offense. . . .
* * * *
Mr. President, subsection 4(f) provides as follows: "neither the holding of office nor membership . . . shall constitute a violation of subsection (a). . . ."
. . . I hope the Senator from New York may find time to read [the section as a whole], and then I hope he may see fit to tell the Senate whether he still thinks Communists, as such, would obviously be indictable and subject to imprisonment under section 4(a).
96 Cong.Rec. 14442-14443. (Emphasis supplied.)
6. Perhaps the closest we come to any suggestion that § 4(f) repeals, pro tanto, the Smith Act is the statement by Representative Multer of New York, an opponent of the measure, during the debate on the final version of the bill:
Another very bad provision in this bill is the new -- to this House -- first sentence [of § 4(f)]. . . .
I venture to predict that, if this bill becomes law, you not only vitiate one of the most important parts of the Smith law, but you will give a new argument and defense to the 11 Communists recently convicted in the Federal court in New York of crimes against the United States, as proscribed in the Smith law,
96 Cong.Rec. 15289, or a similar argument against the bill by Senator Kilgore, 96 Cong.Rec. 15192.
7. Petitioner makes reference to the legislative history of an amendment to the Communist Control Act of 1954, S. 3706, 83d Cong., 2d Sess., introduced and passed with modifications in a hurried and confused debate in both Houses. The amendment, proposed by Senator Humphrey, provided that it would be criminal knowingly and willfully to become or remain a member of the Communist Party, or any other organization whose purpose is to overthrow the government by force and violence. The amendment was opposed by the proponents of the Internal Security Act of 1950, among others, on the grounds that it would impair the effectiveness of § 4(f) of the 1950 Act, possibly rendering the registration provisions of that Act unconstitutional. But it seems clear that this result was conceived to flow from the fact that the amendment mentioned the Communist Party by name, thus making registration tantamount to an admission of the crime itself. As Representative Halleck, the then majority leader who opposed the amendment, put it:
. . . [W]e have the Internal Security Act of 1950, which was worked out after the most careful consideration . . . , and the Smith Act, under which we have had more than 100 indictments and sixty-some convictions, all of Communist leaders. . . . Those acts we have on the books . . . ; they have established themselves.
. . . [T]he Attorney General . . . [s]peaking of the Internal Security Act . . . said:
Essential to the validity of this careful plan, however, is the provision of section 4(f) of the act. . . . It is apparent that the enactment of legislation making membership in the Communist Party per se a crime would be in direct conflict with these provisions of the Internal Security Act. If membership alone is made criminal, to require him to declare his membership is to require him to give self-incriminating evidence. By nullifying this portion of the act, its entire operation would be jeopardized. . . .
In other words, what we are doing permits outlawing the Communist Party, and maintaining the Internal Security Act, the Smith Act, and all other acts by which we deal realistically with the Communist conspiracy.
100 Cong.Rec. 14658.
There is no doubt that the Humphrey amendment is, in many respects, similar to the membership clause. But it was assumed by many of.the proponents of the 1950 Act, perhaps illogically and under a misapprehension as to the law, that the amendment should be defeated to preserve the integrity of the 1950 Act and the Smith Act. Certainly it was considered by no one that the membership clause had been repealed, or its application to Communists barred by § 4(f) of the 1950 Act.
8. November 18, 1951, to November 18, 1954. See 18 U.S.C. § 3282.
9. "No person shall . . . be deprived of life, liberty or property, without due process of law. . . ."
Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
11. While the Government undertakes to defend the statute in the absence of either or both of such elements, its ultimate constitutional position rests on the presence of both.
12. "In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation. . . ."
13. See note 27, infra.
14. The statute allows a fine of not more than $10,000 and imprisonment for not more than ten years to be imposed, and makes one convicted under the statute ineligible for employment by the United States or any department or agency thereof for five years following conviction. Petitioner was sentenced to imprisonment for six years.
15. The element of "activity" in the proscribed membership stands apart from the ingredient of guilty "knowledge" in that the former may be shown by a defendant's participation in general Party affairs, whereas the latter requires linking him with the organization's illegal activities.
16. But compare Whitney v. California, 274 U.S. 357; Burns v. United States, 274 U.S. 328, sustaining state convictions under the organizing and membership provisions of the California Criminal Syndicalism Act.
17. Complicity has been defined thus:
A person is an accomplice of another person in commission of a crime if:
(a) with the purpose of promoting or facilitating the commission of the crime, he
(1) commanded, requested, encouraged or provoked such other person to commit it; or
(2) aided, agreed to aid or attempted to aid such other person in planning or committing it . . .
* * * *
(b) acting with knowledge that such other person was committing or had the purpose of committing the crime, he knowingly, substantially facilitated its commission. . . .
American Law Institute, Model Penal Code § 2.04(3), tentative draft No. 1 (1953). The formulation restates the statutory provisions generally found in jurisdictions in the United States. See, e.g., 18 U.S.C. § 2(a); Ariz.Code Ann., 1939, § 43-116; Vernon's Texas Stat., 1952, Pen.Code, Art. 70; cf. Criminal Code of Canada, Tremeear's, 1944, § 69. It should be noted that the membership clause as here construed is more limited than subsection (b) of this provision, since it is not enough that one has knowingly facilitated the substantive criminal conduct, but there must also be present the specific purpose of facilitating it.
There is, of course, considerable overlap between the law of complicity and the law of conspiracy, and genuine problems arise as to whether a conspirator is, by reason of his conspiracy, to be considered an accomplice and therefore guilty also of the substantive offense. See ALI, Model Penal Code, tentative draft No. 1 (1953), at pp. 20 33; Developments in the Law -- Criminal Conspiracy, 72 Harv.L.Rev. 922, 993-1000 (1959). But we are solely concerned here with pointing up the accepted limits of imputation of guilt, not with exploring the problems created by the various provisions by which such imputation is effected.
18. The problems in attributing criminal behavior to an abstract entity, rather than to specified individuals, though perhaps difficult theoretically, as a practical matter, resolve themselves into problems of proof. Whether it has been successfully shown that a particular group engages in forbidden advocacy must depend on the nature of the organization, the occasions on which such advocacy took place, the frequency of such occasions, and the position within the group of the persons engaging in the advocacy. (See pp. 253-254, infra.) Understood in this way, there is no great difference between a charge of being a member in a group which engages in criminal conduct and being a member of a large conspiracy, many of whose participants are unknown or not before the court. Whatever difficulties might be thought to inhere in ascribing a course of criminal conduct to an abstract entity are certainly cured, so far as any particular defendant is concerned, by the requirement of proof that he knew that the organization engages in criminal advocacy, and that it was his purpose to further that criminal advocacy.
19. See generally Hart, The Aims of the Criminal Law, 23 Law & Contemp.Prob. 401 (1958).
20. Compare concurring opinion of Mr. Justice Brandeis in Whitney v. California, 274 U.S. 357, 372373.
21. As both sides appear to agree that the "clear and present danger" doctrine, as viewed and applied in Dennis, supra, at 508-511, also reaches the membership clause of the Smith Act, and since the petition for certiorari tenders no issue as to the method of applying it here, we do not consider either question.
22. That statute gives the Court power upon review to "direct the entry of such appropriate judgment . . . as may be just under the circumstances ."
23. Petitioner complains that the evidence as to Party activities emanating from such witnesses as Lautner, Hartle, Duran, and Jones, was inadmissible because not tied up with him. This confuses the nature of the offense Congress has created, for it is important as a preliminary matter, without adverting to the particular defendant in the prosecution, to prove the character of the organization of which he is charged with being a member. The other side of petitioner's claim on this score would entail giving greater or conclusive weight to petitioner's admissions as to the nature of the Party merely because he is the defendant in this case. But that would be as illogical on the preliminary question as would be excluding evidence not connected up with petitioner. The evidence as to Scales' words and deeds is weighty and strong against the Party only because of his position in the Party, not because he is the defendant here.
24. As stated by Clontz:
Scales said that we could not expect the Soviet Union to land troops to start our revolution and finish it.
Scales further said that experience had taught the Communists that that sort of approach was disastrous, . . . that they in China, the Communists, had sent in Russian generals, and the only result had been that the Chinese Communists had been licked completely, that the new approach, of the Soviet Union, was shown in the example of Mao, who was then Mao-Tse-Tung, who was then the leader in the Communist Chinese Government.
He pointed out that Mao had never even been to Russia, but instead, the Soviet Union and the Soviet Communist Party had sent over military leaders to instruct Mao, and his leaders, and had sent over professional revolutionaries that could aid them in bringing about their revolution.
He said that we could count on drawing on the experience of the Soviet Union, and that they also would furnish us when the revolution came with experienced revolutionaries from Russia.
25. At one point in the course of instructing Clontz, Wilkerson wrote out the formula "M-L=F&V" which he told Clontz illustrated the position adopted by the appellate courts in the United States that Marxist-Leninist teaching equalled force and violence. Clontz testified:
Doxey Wilkerson explained to me that, since that formula had been established, action had had to be taken by the National Party to conceal the fact that their principles and their goal and their aims and their doctrines included forceful and violent revolution. He pointed out, for example, that an official statement had been issued by the Education Commission of the Communist Party U.S.A. disowning or disclaiming certain study outlines, certain texts, certain publications put out by the Communist Party.
In fact, the order had ordered all Communist Party members to turn those in, and the statement, he said, after that particular date -- I don't recall the exact date -- had said henceforth, we will not recognize these as official Party publications.
He said, by doing that, they accomplished two things. They, first of all, established a technicality for Communists on trial and their attorneys, that the Party no longer accepted Marxism-Leninism, because, he said, all Marxism-Leninism included in its teachings and in its concept the basis of a violent revolution.
He said, secondly, that it did not unduly hamper the Communist Party, that, in the future, many things would be left unsaid that previously had been said, many things would be left unwritten that previously had been written, that, for example, in teaching a more bare outline, would be given, and the instructor would fill in the revolutionary part, or the students would be sent into the Marxist-Leninist works as references to find the revolution, without having it spelled out in the outline.
He said, that, naturally, would not change the basic Party goal or the basic aims of the Communist Party, but that it would make it more difficult for Communists to be convicted.
* * * *
One thing I recall during our discussion, he had given me a pamphlet, a study outline entitled White Chauvinism, and he pointed out to me, he said,
Now I have been instructing you from that outline, but technically it is illegal because we Communists have disclaimed it, so that you are holding an illegal document there, actually.
26. One of Childs' early tasks, assigned him by the District Organizer, as a Communist Party member was to serve as bodyguard for a visiting official of the Civil Rights Congress. The official, accompanied by Childs and petitioner, spoke in Chapel Hill in February of 1951 on the Korean War. His theme, according to Childs, was
that the Korean War was being used by the capitalists as a means of oppressing the Negro people . . . that the capitalists are sending the Negroes to Korea to fight the Korean people who are trying to fight for their rights, the same as the Negro people are in the South.
Childs took notes on the speech, and testified that the official's "exact words" were:
In Korea, they are still called niggers. Niggers are court-martialed for refusing to have their men slaughtered. Lieutenant Gilbert is one example. They say that the nigger is yellow. Yellow, give the niggers in North Carolina and Georgia rifles and tell them to fight for their rights. Yellow, man, you will see fighting like you have never seen before.
27. The trial court charged:
Moreover, the teaching in the abstract or teaching objectively, that is, teaching, discussing, explaining, or expounding what is meant by the aim or purpose of any author, group, or society of overthrowing the Government by force and violence is not criminal. For example, study and discussion by the Communist Party or by any other group in classrooms, or in study groups, or public or private meetings with the object of informing the participants or the audience of the aims and purposes of the doctrines of Marx, Lenin, Stalin, or the Communist Party is entirely lawful. Furthermore, without being criminal, the Communist Part could privately or publicly endeavor to persuade its members that they should adopt and espouse the belief that the Government of the United States should be overthrown by force and violence as speedily as circumstances will permit. This is no more than advocating an idea, and advocating an idea is no crime. Moreover, without transgressing the Smith Act, the Party might even instruct its members that it would be for their good and benefit, if this belief or idea were carried into effect.
All of this is permissible because such utterances are protected by the First Amendment of the Federal Constitution, guaranteeing freedom of speech.
However, if the Party went further, and with the intention of overthrowing the Government by force and violence, it taught, or advocated a rule or principle of action which both, one, called on its members to take forcible and concrete action at some advantageous time thereafter to overthrow the Government by force and violence, and, two, expressed that call in such written or oral words as would reasonably and ordinarily be calculated to incite its members to take concrete and forcible action for such overthrow; then, if the Communist Party did that, the Party became such a society or group, as was outlawed by the Smith Act.
To be criminal, the teaching or advocacy, or the call to action just described need not be for immediate action, that is, for action today, tomorrow, next month, or next year. It is criminal, nonetheless, if the action is to be at an unnamed time in the future, to be fixed by the circumstances or on signal from the Party.
It is criminal if it is a call upon the members to be ready, or to stand in readiness for action, or for a summons to action at a favorable, or opportune time in the future, or as speedily as circumstances will permit, provided always that the urging of such readiness be by words which would reasonably and ordinarily be calculated to spur a person to ready himself for, and to take action towards, the overthrow of the Government. But those to whom the advocacy or urging is addressed must be urged to do something now or in the future, rather than merely to believe in something. In other words, the advocacy must be of concrete action, and not merely a belief in abstract doctrine. However, the immediate concrete action urged should be intended to lead towards the forcible overthrow, and be so understood by those to whom the advocacy is addressed.
28. Although most of the particularized evidence related to events not within the limitations period, it was of course open to the jury, under proper instructions which were given, to infer that such events reflected the character of Party advocacy during the limitations period. Petitioner does not contend to the contrary.
29. The trial court charged:
The defendant admits that he was a member of the Party. For his membership to be criminal, however, it is not sufficient that he be simply a member. It must be more than a nominal, passive, inactive, or purely technical membership. In determining whether he was an active or inactive member, consider how much of his time and efforts he devoted to the Party. To be active he must have devoted all, or a substantial part, of his time and efforts to the Party.