Yates v. United States – Oral Argument – October 09, 1956 (Part 1)

Media for Yates v. United States

Audio Transcription for Oral Argument – October 08, 1956 in Yates v. United States
Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Earl Warren:

Number 6, Oleta O’Connor Yates et al. versus United States of America.

Mr. Monahan you may proceed.

Philip R. Monahan:

If the Court please.

Yesterday, Mr. Margolis made the observation that the Communist Party is opposed to persons who want and advocate socialism, now, right away and that they insist that before socialism can be brought to this country, a majority must be convinced of the desirability of it.

I would like to ask Mr. Margolis in replying to explain a majority of whom and secondly, how is the fact of this majority to be registered or to be made known.

In a moment, I shall proceed to state the Government’s position based upon the evidence in this case as to what the Communist Party believes and teaches in respect of those questions.

In another observation that he made, was that there is no — nothing in any Marxist Communist Classics which teaches or advocates the violent overthrow of this Government, the Government of the United States.

In a moment, I would like to read to the Court a passage or two which does so advocate and — so I shall now — if the Court wishes to follow the — the reading of the evidence, it appears on page 155 of the Government’s brief.

Felix Frankfurter:

May I ask you, Mr. Monahan?

Philip R. Monahan:

Yes, sir.

Felix Frankfurter:

Before you embark on this — what is essentially a rebuttal of what Mr. Margolis said?

May I ask you this because it appears to your field, your intended argument, if you were to state part in your views sighting the charge against the petitioner and what in your view the charge means in order (Inaudible) so far as it is possible and to avoid those terms, those question that in terms about infinite and motive and all the rest, tell us what in your view indictment charges and what in your view is required to sustain the allegation with regards (Inaudible).

Philip R. Monahan:

The indictment charges the petitioners with having knowingly joined a conspiracy.

To advocate and teach the duty and a necessity of violently overthrowing the Government of the United States with the specific intent — I must use the word “intent”.

I don’t think that question making —

Felix Frankfurter:

(Inaudible)

Philip R. Monahan:

With the intent of accomplishing that desideratum that objective as soon as possible, as soon as circumstances permit.

Felix Frankfurter:

May I ask you this, I may infer from what you said that the charge is participating in the conspiracy to teach with the view of bringing about action, not just to —

Philip R. Monahan:

To advocate —

Felix Frankfurter:

Ideas — ideas or views, not just the conspiracy —

Philip R. Monahan:

It definitely —

Felix Frankfurter:

— something — some — some cerebration but that the cerebration can turn himself into action that the teaching is directed towards getting the disciples of this belief to do something eventually.

Philip R. Monahan:

Yes, sir.

Felix Frankfurter:

Is that a fair statement?

Philip R. Monahan:

Yes, sir.

The advocacy, not only the action but of the violent action.

Felix Frankfurter:

Violent action.

Philip R. Monahan:

Not —

Felix Frankfurter:

Not merely to teach certain beliefs?

Philip R. Monahan:

Not tomorrow.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Felix Frankfurter:

I don’t care (Voice Overlap)

Philip R. Monahan:

Necessarily.

Felix Frankfurter:

The substance.

Philip R. Monahan:

As soon as possible, as soon as circumstances permit.

William O. Douglas:

Let’s just talk about overt acts?

Philip R. Monahan:

An overt act is — an overt act in furtherance of the object of this conspiracy and to achieve the objective.

William O. Douglas:

I say what is — what your overt act charge?

Philip R. Monahan:

Yes, sir.

William O. Douglas:

And were the overt acts — anything more than the advocacy that you’re speaking?

What was the nature of the overt act?

Philip R. Monahan:

The overt acts —

William O. Douglas:

I’m just following up, Mr. Justice Frankfurter’s question.

Philip R. Monahan:

Yes, sir.

Where a — in the nature of attendance at Communist Party meetings, Lenin Memorial rallies, etcetera.

William O. Douglas:

Were they — were they overt acts of violence?

Philip R. Monahan:

On —

William O. Douglas:

Sabotage?

Philip R. Monahan:

No.

The object of the conspiracy, sir, the alleged object of the conspiracy is not the violent overthrow of the Government.

It’s the advocacy of the violent overthrow of the Government.

Must keep that distinction clearly in mind.

Hugo L. Black:

Teaching — it’s teaching the advocacy.

Philip R. Monahan:

Teaching the duty and the necessity.

Hugo L. Black:

Teaching the advocacy as mean in the language of the — indictment of the law.

Philip R. Monahan:

The advocacy of the violent overthrow and teaching the duty and the necessity of overthrowing the Government as soon as circumstance —

William O. Douglas:

The overt acts, what were they, the nature of the overt acts?

Philip R. Monahan:

They were — among them were attendants at Communist Party meetings —

William O. Douglas:

Were the teachings going on?

Philip R. Monahan:

No, sir.

The — the teaching and the advocacy itself is the crime — is the substance of offense.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

And —

William O. Douglas:

Can we disregard the overt act?

Philip R. Monahan:

No.

No, sir.

No, the — the overt acts are necessary.

It cannot be disregarded.

Harold Burton:

Well, is an overt act to be a member of the Communist Party?

Is that charged — as an overt act?

Philip R. Monahan:

No.

Harold Burton:

— as an overt act.

No.

It is not, sir.

And there must be some action by the member himself to demonstrate his purpose to overthrow the Government?

Philip R. Monahan:

May I read you, sir, two of the overt acts that are directly involved in the case because these — these are two of the overt acts — these are the two overt acts which were both laid in the indictment and —

Hugo L. Black:

What are you reading —

Philip R. Monahan:

This brown — brown covered transcript of record on page 5, overt act number 13 — overt acts number 13 and 16 are the two overt acts that are directly involved in this case for the reasons that I mentioned a moment ago.

Number 13, “On or about January 21st, 1949, Henry Steinberg, a defendant herein did attend and participate in a meeting.”

Overt Act 16, “On or about January 28th, 1950, William Schneiderman, a defendant herein, did attend and participate in a meeting at Embassy Auditorium Los Angels California.”

(Inaudible)

Philip R. Monahan:

Those were the two overt acts which occurred within the statute of limitations period and which were approved.

(Inaudible)

Philip R. Monahan:

Yes, sir.

(Inaudible)

Philip R. Monahan:

The only two that were alleged and proved.

There were many overt acts that were proved but which were not laid in the indictment.

Hugo L. Black:

Does the conviction, the validity of the conviction depend upon the validity of these charges as overt acts, these particular two?

Could you convict that these charges are not valid to point out as overt acts under the statute?

Philip R. Monahan:

I believe that under the statute, it’s necessary for the Government to allege and prove at least one overt act committed by anyone of the conspirators within the statutory period.

Hugo L. Black:

And the case here depends on the validity of these as overt acts.

You say there is evidence to prove that they went to meetings but if — let’s suppose that those were not sufficient —

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

Well, of course —

Hugo L. Black:

— as overt acts.

Philip R. Monahan:

The nature of the meeting is important.

I mean — the —

Hugo L. Black:

Nature of the meeting?

Philip R. Monahan:

The overt — I mean, it is permissible for the Government to prove what happened to these meetings.

Now, the Government does not say that there was overt advocacy of violence at these meetings, these were public meetings.

That means what?

Philip R. Monahan:

They were public meetings.

They were Lenin Memorial rallies which were meetings of — of the — of a nature in which communists try to recruit members into their organization.

William O. Douglas:

What took place at these meetings?

Philip R. Monahan:

They were — the one thing there was an appeal for funds to foster the activities of the Communist Party.

There was speeches and prayers of Lenin, the author of the pirate conspiracy which the communist in this country and the world over seek to duplicate at the earliest opportunity.

And Lenin, of course, too is the author of most of the so-called Marxist-Leninist classics which the communist used as a vehicle, the chief vehicle for their indoctrination of their members and their advocacy of teaching of force and violence.

I say, he’s either the author or at least the author’s purport to expound his teachings.

Felix Frankfurter:

Before I may intervene in — in this discussion on the overt act.

Am I right in assuming that the Government’s position, everything you’ve said starts with the assumption going under the assumption that an overt act though necessary under the statute satisfy the requirement of a crime, overt act required in this conspiracy on that (Inaudible) but it’s the Government’s view that no overt act need be in and of itself an unlawful action, is that right?

Philip R. Monahan:

Certainly, sir.

That’s —

Felix Frankfurter:

That’s the basis of the law —

Philip R. Monahan:

Well established law.

Felix Frankfurter:

But — pardon me?

Philip R. Monahan:

Hundred years of history.

Felix Frankfurter:

I’m not — I’m not yet finish —

Philip R. Monahan:

Yes, sir.

Felix Frankfurter:

I’m just suggesting.

That’s the basis of the interchange.

Philip R. Monahan:

Yes, sir.

Felix Frankfurter:

— and answers some —

William O. Douglas:

But must have some relationship.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

It must — it must be of such a nature is to indicate that the conspiracy is not still up in the minds of the conspirators but has somehow manifested itself objectively.

Felix Frankfurter:

It maybe the making of an innocent letter from your point of view.

Philip R. Monahan:

It can be picking up a telephone —

Felix Frankfurter:

All right.

Philip R. Monahan:

— making a phone call can be an overt act.

There were liberty scores of cases which so — which so holds.

John M. Harlan:

How do you tie this overt act into those being in furtherance of the conspiracy?

Philip R. Monahan:

It was a meeting such as this, sir, which the communist used to interest the people in their conspiracy — in their organization with the objective of getting them into it as members and then to indoctrinate them and build up their organization.

Now, I would like to, first continue if I may on the — the teaching of the Communist Party which is contained in the — this booklet called “Outline on fundamentals of Marxism for class study or self use” issued by the State Educational Committee of the Communist Party of California.

Incidentally, there are two other documents substantially identical, one issued by the National Organization and one by the Los Angeles County Organization.

Now on page —

Felix Frankfurter:

Before you — I’m going to interrupt you not in the view of (Inaudible) your argument (Inaudible)

Philip R. Monahan:

Yes, sir.

Felix Frankfurter:

Will you go on with what’s going to be the answer of the argument (Inaudible)

Would you please state having stated broadly what you concede to be the nature of a crime (Inaudible), would you please state without the confusion of 50 issues of more or less unrelated character, what concedes to be the central controversy between the Government and the petitioner with regards to the validity of his conviction?

Philip R. Monahan:

I would say this —

Felix Frankfurter:

If you have 50 points, the Court had said to its mind, isn’t likely to concede?

Philip R. Monahan:

I would say that one of the — if not the principle argument of the petitioners is that the judge in his instructions to the jury did not make sufficiently clear that it was a violent action which they had to find that the defendant is conspired to advocate, and not just abstract approval of —

Felix Frankfurter:

Or inculcation, approval or not.

You say approve in that (Inaudible) and on one side his action and on the —

Philip R. Monahan:

Urging.

Felix Frankfurter:

— other side, it’s just getting into the mind without intending eventually that the mind should act, is that right?

I mean that’s the controversy between you two.

Their claim is that the judgment just said, it did not sufficiently make the distinction which I understood you two have made a few minutes ago.

Namely, this is a matter of conspiracy to get something in people’s minds, but conspiracy will get onto the peoples minds with the views that they should act thereon, is that right?

Philip R. Monahan:

Yes, sir.

Felix Frankfurter:

If the charge — if the charge did not sufficiently make clear that distinction so that ordinary men and women.

Were there women on this jury?

Never mind —

Philip R. Monahan:

I’m not certain.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Felix Frankfurter:

There were.

So that ordinary men and women would know what the issues were and should intelligently answer on this massive evidence which took how many months to apply?

How many?

Philip R. Monahan:

Six.

Felix Frankfurter:

Six months.

Philip R. Monahan:

A large part of which may I observe, Your Honor, was devoted to thorough exhaustive and, I was going to say merciless cross-examination of the Government witnesses.

Felix Frankfurter:

I don’t care what — I don’t care what it was.

I’m suggesting —

Philip R. Monahan:

I mean that — I’m saying that that —

Felix Frankfurter:

I’m not blaming or anybody.

I’m not remotely thinking of any fault to be logically against anybody.

I’m suggesting that if you have a trial of this complexity, extending over six months at the end of which a jury of ordinary, highly esteemed, respectable but ordinary men and women gone from all sorts of walks of life were not concerned with these problems the way we lawyers got all the time, in order that they may reach a rational judgment, they must have illuminating guidance from the Court, is that right?

Philip R. Monahan:

Yes, sir.

Felix Frankfurter:

And therefore — and therefore, if they did not have it, that’s enough about this case, not been able to learning to stand —

Philip R. Monahan:

Yes, sir.

Felix Frankfurter:

— is that right?

Philip R. Monahan:

May — may I read what the judge told the jury in his charge?

Felix Frankfurter:

I’m — I’ve hopes that you will spend a good deal of time on this subject because I don’t mind telling you I have the greatest difficulty in the advocacy of the Court’s charge.

Philip R. Monahan:

I’d like to develop it right now, sir.

On page — I’m going to read from the instructions as they are contained in volume 106 of federal supplement.

William O. Douglas:

Where are they in the record?

Philip R. Monahan:

In the — in the record, they are at pages — the part that I want to read, sir?

William O. Douglas:

Yes.

Philip R. Monahan:

They begin at page 13,752 of that green covered —

Felix Frankfurter:

Volume 26.

Philip R. Monahan:

Volume 26.

Felix Frankfurter:

Green record.

Philip R. Monahan:

Yes, sir.

“As used in the Smith Act, any indictment —

John M. Harlan:

Excuse me, I’m using your 106 too.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

It’s page 934.

John M. Harlan:

What number is that?

934 —

Philip R. Monahan:

Second —

Earl Warren:

Where do we find these in the record?

Philip R. Monahan:

The — the part that I’m going to read sir began at page 13,752 of that green bound record.

Hugo L. Black:

Not printed in any of the appendix?

It is printed in a —

I also give citations yesterday that were printed in the green appendix.

Philip R. Monahan:

I think it is —

Hugo L. Black:

Green appendix?

Earl Warren:

That I thought —

Philip R. Monahan:

The word “advocate” means to urge or to plead in favor of to support, vindicate or recommend publicly.

The word “teach” means to instruct, show how, to guide the studies of.

The word “force” means the use of physical power other than the power of oral or written speech.

The word “violence” it means the use of great and destructive force.

The holding of a belief or opinion does not constitute advocacy or teaching.

Hence, the Smith Act does not prohibit persons who may believe that the violent overthrow and destruction of the Government of the United States is probable or inevitable from expressing that belief, whether such belief be reasonable or unreasonable is immaterial.

Prediction or prophecy is not advocacy.

Any advocacy or teaching which does not include the urging of force and violence as the means of overthrowing and destroying the Government of the United States is not within the issue of the indictment here and can constitute no basis for any finding against the defendants etcetera.

There was further instruction in that same thing going on to the next page.

I think that the jury, were clearly instructed that the defendants were not being charged with conspiring to inculcate ideas, but that they were charged with conspiring to advocate, force and violence as a means of overthrowing the Government of this United States.

John M. Harlan:

Is there anything in this charge on this aspect that is omitted and what was in the Medina charge in the Dennis case —

Philip R. Monahan:

Yes, sir.

John M. Harlan:

— which this Court had before ruled?

Philip R. Monahan:

Yes.

Yes, sir.

In Judge Medina’s charge —

John M. Harlan:

What’s the difference?

Philip R. Monahan:

In Judge Medina’s charge he used — he used the word “incite”.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

He said, “I charge you that in order to convict, you must find that the defendants advocated the violent overthrow of the Government in language ordinarily and reasonably calculated to incite to such action.”

Now, at this trial, the question arose in colloquy as to the propriety of the word “incite.”

Judge Mathes pointed out that incite and in fact the defense attorney’s not only pointed out but insisted that “incite” connoted moving to action immediately.

And Judge Mathes said, obviously the Smith Act doesn’t — in words or a fact he said the Smith Act doesn’t — isn’t concerned with that.

Its advocacy of force and violence as soon as possible, as soon as circumstances permit and for that reason, he declined to use the word “incite” in his instructions even though the Government acquiesced in.

In fact that was among the proposed instructions of the Government because Judge Medina had given it and hasn’t given in other cases.

The essence of our position on this point, sir, is that the word “incite” is a perfectly proper word to use in the Smith Act instruction if it is understood as not connoting incitement to immediate action but as — but as connoting no more than the incitement of — of the urging of action at some time when the signal is given, when the catalyst has been added to the mixture.

Felix Frankfurter:

What does the Government — let me change that.

Why did the Government impose the charge from the Medina — from the Dennis case the trial court (Inaudible)

Philip R. Monahan:

It was perfectly — proper charge if understood in the way that I’ve just explained to Mr. Justice Harlan, sir.

But the issue —

Felix Frankfurter:

It would have been given and appropriately been required additional interpretation of laws, you could have added that.

Philip R. Monahan:

If it — if it was explained as — as meaning “urge” and so Judge Mathes, instead of using the word “incite” and explaining that all it meant is “urge” said it means “urge”.

I mean he just used the word “urge.”

And that is the essence of the Government’s positions that what is forbidden is the urging — the urging of force and violence and that was given.

Now, I’d like to get on to page 155 of the brief and I’m going to read excerpts from lesson 7 of the “Outline on the fundamentals of Marxism.”

Lesson 7 defines socialism as the establishment of the political power of the working class.

The foundation of Soviet power achieved through revolution.

A prerequisite of a socialist revolution is said to be “support of the class conscious workers by the majority of the people.”

In order to — to obtain the power of a State, the outline States and it quotes Lenin here, “The class conscious workers must win the majority to their side.”

We are not linguists.

We are not in favor of seizure or power by a minority but that the word “majority” referred to does not mean an absolute majority of all the people is quickly made clear.

What it — it says that those who affect the seizure of power should have the sympathy of the masses.

Meaning by the term “masses”, the majority of whom, everybody know the workers and of the exploited ones.

Now, in chapter 3, part 3 of Stalin’s Foundation of Leninism which is given as assigned reading in this lesson.

Stalin’s quotes a statement of Lenin’s as follows.

It follows, “That for the — for revolution it is essential first, that a majority of the workers” or at least the majority of the class conscious, the thinking, the politically active workers) should fully understand the necessity for revolution and what?

March to the polls and voted into it — voted in?

No.

Be ready to sacrifice their lives for it.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

The matter has given, even more pointed clarification in chapter 4 of Problems of Leninism which is given as additional reading in this lesson.

There, Stalin again quotes Lenin with — refers with scorn to the view of the petty-bourgeois democrats, that the majority of the population must first declare itself for the party of proletariat.

Felix Frankfurter:

What was the date of the book you’re reading about?

Philip R. Monahan:

The book?

Felix Frankfurter:

Publication date?

Philip R. Monahan:

Of the book that — was 1926 — 1924.

Felix Frankfurter:

And that was in the record before since —

Philip R. Monahan:

It was, sir.

I — I believe under another title.

I think it was called the “The theory and practice of Leninism.”

Must first declare itself for the party of the proletarian and only then can it and should it take power.”

That says Stalin and he still quoting Lenin is what it said by — and this language was italicized and Mr. Stalin indicates that it’s his italics.

That is what it said by petty-bourgeois democrats who call themselves socialist, but are really the henchmen of the bourgeoisie.

But we say, and Stalin again indicates that this is his italics.”

Let the revolutionary proletariat first overthrow the bourgeoisie, break the yoke of capital, breakup the bourgeois state apparatus.”

Then the victorious proletariat will speedily gave them sympathy and support of the majority of toiling non-proletarian masses by satisfying their wants at the expense of the exploiters.

Having overthrown the bourgeoisie and seized state power, the same chapter continues, the — the proletariat must introduce Soviet rule and smash to pieces the oral state apparatus.

And if it could be any further doubt about what is meant, it is removed by Lenin’s reply to those who confuse the dictatorship of the proletariat with popular or elected Government which Stalin quotes with approval in the same chapter.”

The class which has seized political power” said Lenin does not decieved themselves or others by talk about popular elected Government’s, sanctified by the whole people.”

“For the scientific concept of dictatorship” he said, “means nothing more or less than unlimited power resting on violence and not on law.”

And I don’t want to — there’s one more passage on this general point, I’d like to develop.

On — in lesson eight, the following lesson, chapter two of the same book is referred to as given as assigned reading.

And in that chapter, Stalin, again hit scorn and ridicule on the opportunist who assert that the proletariat cannot and not enough to take power unless it constitutes a majority in the country.”

No proofs are reduced” he says, “For there are no proofs either theoretical or practical that can justify this absurd thesis.

I can’t think of any stronger language to make it clear that the communist in this country think that it is ridiculous that they’re going to take power by a — by majority vote.

And it’s true that this book is written in 1924, Mr. Justice Frankfurter, but the Communist Party — we’re not selecting these passages, the Communist Party is selecting these passages, it is outlined some fundamentals.

We’re just reading the passages that the Communist Party selects for their study outlines.

Felix Frankfurter:

I wasn’t questioning remotely that you’ve selected —

Philip R. Monahan:

Well I just want to —

Felix Frankfurter:

I just (Voice Overlap) —

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

— remove any possible inference that this is a — that this is some old dusty tome.

Felix Frankfurter:

Nothing would follow from my mind.

Philip R. Monahan:

I see.

Felix Frankfurter:

So far as old age has it —

Philip R. Monahan:

Well, the argument —

Felix Frankfurter:

My interest wasn’t related to the Schneiderman says.

Philip R. Monahan:

I think the — the counsel for the other side, someone of them has referred to these books as being old ancient dusty tomes that refer to some other country and some other part of the world and some other time.

It’s true —

Felix Frankfurter:

I (Voice Overlap) everything they’re told is bad you know.

Philip R. Monahan:

Not only bad but it can be revitalized by being reused in present times in this country.

Now, you’re going to tell us how they reuse this to buy the lessons, to study clubs?

Philip R. Monahan:

Yes, sir.

They had?

Philip R. Monahan:

They give assigned reading.

Yes.

Philip R. Monahan:

After — after they give the outline of their —

William J. Brennan, Jr.:

Is there — is there someone — someone of these defendants who went to that study class?

And if they say these are the books that you should read or what — or did they say anything?

How do these books get in the hands of other people than this —

Philip R. Monahan:

This — this study — this — these study groups were going on throughout the State of California in the post World War II period and they were put out by the State — by the National Committee, and a State Committee and the various county committees on which some of the —

William J. Brennan, Jr.:

These —

Philip R. Monahan:

— on which some —

William J. Brennan, Jr.:

— these petitioners as members of those various committees, took part in that action?

Philip R. Monahan:

There is no specific evidence saying that a certain person, certain defendant individually and personally put this on the hands of anyone but —

William J. Brennan, Jr.:

Was there an open study class, where 20 people went and someone talked to them?

Philip R. Monahan:

Yes, sir.

William J. Brennan, Jr.:

Is that in the record here?

As to what they talked about at that study class or the right to these books?

Philip R. Monahan:

Yes, sir.

May I refer Your Honor to —

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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William J. Brennan, Jr.:

We’ll talk about that later.

It’s a question of tying up these books with these petitioners.

Philip R. Monahan:

May I say this sir, that two of these petitioners authored one of the study outlines except that it was not the study outlines that were used in the immediate post war — World War II period but were used in the 1949 to 1950 after the Schneiderman — I mean after the Dennis indictment was brought.

And that contains certain language such as the — refers to the attempt of the bourgeoisie to pin advocacy of the violent overthrow of the Government on them etcetera.

But the same books are referred to, the same classics are referred to, the same passages are referred to.

And as the defendants are referred to, our petitioner, Schneiderman and Yates, and I’m coming to that in a moment, sir.

Now, about the — there being no classic that advocates the violent overthrow of this Government.

May I refer the Court to page 153 of the Government’s brief, where in lesson 4 which assigns chapter 4 of Stalin’s Foundations of Leninism.

It has stated —

Hugo L. Black:

What page of your brief?

Philip R. Monahan:

Page 153 of the Government’s brief.

Stalin’s further points out in this chapter that while Marx did at one time concede the possibility of a peaceful — “peaceful evolution of bourgeois democracy into proletarian democracy in England and America,” that concession no longer his validity.

Now, “The special conditions for peaceful development in England and United States have disappeared so that Marxist qualification in regard to these countries can no longer hold good.

Hence, at present in England and United States no less than other imperialist countries of the world, the law of violent proletarian revolution, the law of the smashing of the bourgeois state machine as a preliminary condition for such revolution is in inevitable law.”

Hugo L. Black:

May ask you?

Suppose indictment charged that a man gave another man this book specifically called his attention to that page, it charged with his purposes and candid doing so was to get him to overthrow the Government as soon as possible.

Would that be a good indictment under the Smith Act?

Would the —

Philip R. Monahan:

It is said in words or affect, “I urge you.”

Hugo L. Black:

If he said that the intent, just as you have in here with the jury, as I understand it has got to divide up between what’s in the intent in the minds, and what was the right to convict depends on that.

Suppose they charge him and gave him this book, the intent was to get him to overturn the Government as soon as possible, as soon as circumstances would permit.

Philip R. Monahan:

That would not —

Hugo L. Black:

Why — why wouldn’t that violate the Smith Act?

Philip R. Monahan:

That would not suffice.

There has to be an urging —

Hugo L. Black:

Well —

Philip R. Monahan:

— an urging of violent action.

Hugo L. Black:

Does that what the indictment said?

Philip R. Monahan:

Yes, sir.

Hugo L. Black:

What — where did it say that?

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Hugo L. Black:

To the intent of causing the over — that foresaid overthrow and destruction of the Government, page 2.

Philip R. Monahan:

Yes, sir.

Beginning on page 1, the grand jury charges that from such a date — such — such date and so forth, the main defendants willfully and knowingly did conspire with other named persons, the Dennis defendants, co-conspirators but not defendants herein and would guide these other persons to the grand jury unknown, to commit offenses against the United States prohibited by Section 2 of the Smith Act.

By one, wilfully and knowingly advocating and teaching the duty and necessity of overthrowing the Government of the United States by force and violence with the intent of causing and of the foresaid overthrow and destruction of the Government of the United States by force and violence as speedily as circumstances would permit.

And by two, willfully and knowingly organizing and helping to organize as the Communist Party of the United States of America, a society group and assembly of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence with the same intent.

Felix Frankfurter:

But the point is that as you read, excluding in a cloud of uncertainty that advocate there means is to advocate in order to fill the minds with different ideas.

Philip R. Monahan:

The judges charged and didn’t leave any doubt about that.

Felix Frankfurter:

Your (Voice Overlap) Mr. Justice Black —

Philip R. Monahan:

And I don’t think that there is any doubt in the indictment either but the important thing is that the charge didn’t leave any in doubt.

Felix Frankfurter:

I thought you — you talked of the hypothetical case put to you by Justice Black, would be centered by requirements of the statute because it didn’t — the case put by my brother Black wasn’t the case of urging (Voice Overlap) —

Philip R. Monahan:

As I understood Mr. Justice Black’s —

Felix Frankfurter:

— that indictment — I didn’t hear the word “urging” was in there, was it?

Philip R. Monahan:

The word “advocate” was used.

Felix Frankfurter:

That’s the point –But —

Philip R. Monahan:

But — but the judge —

Felix Frankfurter:

Advocate is a dubious term.

Philip R. Monahan:

Well, that’s — that’s the word that’s in the — was in the indictment that was — that — that was — that’s the word was in the Smith Act which was sustained by this Court in the Dennis case.

Felix Frankfurter:

Yes.

But — but I have to make clear in the Dennis case that, there were charges which gave definitions of unequivocal character, the heinous part gave unequivocal character to what advocate means —

Philip R. Monahan:

And there was here too.

Felix Frankfurter:

And it is that — it’s that unequivocal definition by Judge Medina which the Government itself offers in this case in which the Court declined to give.

Philip R. Monahan:

But that instruction that was given by Judge Medina in which the Government acquiesced in was the same substantial instruction that was given by Judge Mathes in this case.

Felix Frankfurter:

That’s the controversy.

What substantially is —

Philip R. Monahan:

There is nothing —

Felix Frankfurter:

— how much is actually covered?

Philip R. Monahan:

— there is nothing sacrosanct about the phraseology of an instruction, if the idea — if the idea of the instruction is conveyed in other language, it’s perfectly appropriate.

Felix Frankfurter:

That’s for the controversies whether the other language mean the same thing, is that right?

Philip R. Monahan:

Yes, sir.

And I think it’s clear from all of the prevailing opinions of this Court in the Dennis case that that other language does mean this.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

There is not a single intimation in any of the prevailing opinions of this Court.

Felix Frankfurter:

But we didn’t have this problem in the Dennis case because of the charge that was given by Judge Medina.

Now, I’m not saying — I’m not testing on the validity of your argument which is that Judge Mathes gave the substance of the idea in different language from that in which Judge Medina is questioned.

That is your position, is that right?

Philip R. Monahan:

Yes.

And I think —

Felix Frankfurter:

— the question.

All right.

Philip R. Monahan:

— I want to point out that — that he was correct because that is what this Court decided in the Dennis case as it’s clear from the prevailing opinions.

Felix Frankfurter:

Well, but that’s what companies are doing.

If the Court has before it a record with one charge and makes, and uses language that means you approve that it changes the language.

It is to be read and considered in light of the charge that was in that case.

You can’t pull that language out and say that covers different world.

Philip R. Monahan:

I’ll just come back to the point I made a moment ago, sir.

There’s nothing sacrosanct about the word “incite” it’s the idea.

It’s the proper idea which is conveyed by the word “incite”, which is important and it is that idea which Judge Mathes conveyed.

Now, as I understood Justice — Mr. Justice Black’s point.

He said if someone takes Lenin’s state in revolution and hands it to someone and says, “Read this.”

Hugo L. Black:

I — I said and if it does exactly what it says here, you’re charged with the — handed it — they head there and that they gave it to them with the intent of advocating to overthrow the Government as soon as circumstances would permit.

Philip R. Monahan:

You got to have more than intent and there was more than intent here.

Hugo L. Black:

But what else do you have to have?

Philip R. Monahan:

There has to be advocacy of violent action, the urging.

Hugo L. Black:

Well, intending by that to urge him to overthrow the Government as soon as possible.

No.

Not intending to urge, urging him to commit violent action with the intent.

You mean, you would have to show that the particular individual at the time they gave him the book, added to that some urging that I want you to overthrow the Government.

If that’s true —

Philip R. Monahan:

He —

Hugo L. Black:

— evidence like that in this case?

Philip R. Monahan:

He doesn’t have to use any particular language.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

He doesn’t have to say, “I urged you to overthrow the Government of the United States at your earliest opportunity.”

He doesn’t have to use language like that.

Hugo L. Black:

I suppose he gives him the book and says, “This tells you all about how to overthrow the Government.”

Philip R. Monahan:

And suppose he picks up, passed and read this and —

Hugo L. Black:

As I said, he picks up that particular part that you read and gives him the book.

Philip R. Monahan:

And he says —

Hugo L. Black:

And you charged him what you’ve charged here, advocating and so forth.

Philip R. Monahan:

And I urge you to do it like manner.

Hugo L. Black:

Well, in other words, you say he would have to had, “I urged you to do this.”

Philip R. Monahan:

He would have to make that — he would have to make that point clear in a —

Hugo L. Black:

That you have —

Philip R. Monahan:

— in words or effect.

Hugo L. Black:

— you have in this case against each one of these defendants additional evidence?

Philip R. Monahan:

I’d like to get into it right now.

Hugo L. Black:

I’ve given — of having books belong to the Communist Party and these particular individuals said, “We want you to go out and overthrow the Government as soon as circumstances will permit.

We urged you to do it.”

Philip R. Monahan:

Remember this — this is the charge in the conspiracy.

There is no necessity that any individual member of the conspiracy, himself in his — out of his own lips say this, as long as he is knowing member of the conspiracy to do this and — now, I would like to get into the evidence.

You heard yesterday there is no evidence in the case.

I’d like to give you some of the evidence.

I like to start out with Mr. William Schneiderman, the man who has gone soft in communism.

Hugo L. Black:

Where are you reading that?

Philip R. Monahan:

No.

I’ve — it — it begins on page 58 of the Government’s brief.

He — he was introduced on the floor of the California State Convention in 1945 by Steve Nelson as a professional communist who has given his whole life to the Communist Party.

I believe that as this evidence unfolds, the Court will agree that Mr. Nelson’s characterization is entirely justified.

At his denaturalization hearing in 1939 in the case which reached this Court, Mr. Schneiderman was asked and he gave the following answers, asked the following questions and gave the following answers.

“Where did you go then in 1934?”

“I made a visit to Europe and I made a visit to the Soviet Union.”

“That was in 1934?”

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

“Yes.”

“Did you go as an official representative of the Communist Party for the United States of America?”

Did you go with the delegate to some Congress of the Communist International?”

I went there on a visit and I stayed there, and studied conditions.”

“You were not a delegate to the communist international?”

“During the time I was there, the Seventh World Congress of the Communist International took place and I attended that.

I remember when I read that in 1943, when this case was before the Court, I had the impression of a tourist, dropping in Congress to watch proceedings.”

“But you were not a delegate to it?”

“No.”

Now, Mr. Honig, a witness in this case gave sharply differing testimonies about Mr. Schneiderman’s activities in Moscow in 1934.

Felix Frankfurter:

What you read was from the denaturalization proceeding, not from the cross-examination of Schneiderman, is that right?

What you’ve just read, I just think —

Philip R. Monahan:

Yes.

Felix Frankfurter:

— was from the proceeding into the denaturalization.

Philip R. Monahan:

He was — he was a witness in his denaturalization.

Felix Frankfurter:

(Inaudible)

Philip R. Monahan:

There was no — there was no cross-examination on Mr. Schneiderman in this case.

Felix Frankfurter:

He didn’t expect —

Philip R. Monahan:

Because there was no direct testimony.

Felix Frankfurter:

(Inaudible)

Philip R. Monahan:

Mr. Honig —

Felix Frankfurter:

How much of that testimony — how much is put in — in volume would be — how much of Schneiderman’s testimony of the denaturalization proceeding —

Philip R. Monahan:

All of it.

Felix Frankfurter:

All of it?

Philip R. Monahan:

Yes.

Felix Frankfurter:

(Inaudible)

Philip R. Monahan:

It was introduced, I believe, by petitioner Yates who —

Felix Frankfurter:

Schneiderman didn’t use — utilize any of the testimonies?

Philip R. Monahan:

I believe that the — that the introduction of it was at the request of petitioner Yates who said that she — she agreed with Schneiderman’s testimony in that case.

Now, “Mr. Honig, what other countries have delegates there —

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Earl Warren:

Where — where do you find —

Philip R. Monahan:

This is page 335 of this yellow covered appendix to the Government’s brief in the Court of Appeals.

Hugo L. Black:

Page 335?

Philip R. Monahan:

335.

Yes, sir.

I should say that Honig testified that Schneiderman not only was a delegate of the American Communist Party to the Seventh World Congress of the Communist International in 1934 and 1935.

But he was the — the only delegate.”

Mr. Honig, what other countries have delegates there at the Red International Labor Unions?”

I should explain that Mr. Honig testified about two meetings.

One, the meeting of the Red International of Labor Unions at which Schneiderman was present and other one, later in that week, of the Communist International at which Mr. Schneiderman was present.

Mr. Honig is not testifying about the — the meeting at the Red event — at the Red International of Labor Unions.”

Let’s take the meeting at the building of the Red International of Labor Unions about when do that take place.”

“There were a number of such meetings but I could mention one, specific one at which the policy of the Communist Party was discussed.

And that one was in the second week after my arrival.

I would place that in the middle of June 1934.”

“How many people are present to that meeting?”

“About 25.”

“25 people present at this meeting.”

“Was the defendant Schneiderman present?”

“He was that one.”

“Did he participate in the discussion?”

“Will you relate as nearly as you can recall what was said with respect to the policy of the Communist Party of the United States?”

“The Court.”

“And — and who said it?”

“The witness.”

“Well, the policy of the party of the United States of the American party was discussed first of all, in relationship to a situation in the San Francisco Waterfront.

In a moment, I’m going to get into — if I have time, I want to say a few words about the San Francisco Waterfront.

Some of the justices, they recall that more vividly than others but I’ll differ that for the moment.

A man named Lozovsky, Solomon Lozovsky who was the head of the Red International of Labor Unions, introduced the subject by mentioning that he got a report from the American Communist Party directly by Mr. Kennison.

“Mr. Honig, will you go ahead and tell us what was setup in the meeting and who said it?”

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

Answer,”Well this man Lozovsky, whom I mentioned, introduced the question of the American Party’s policy towards the situation on the Waterfront in San Francisco.

He said that he received a letter from Earl Browder who was then the General Secretary of the American Communist Party, which stated that the longshoremen were either on strike or about to call a strike that the strike — that the Party was endeavoring to spread this into a general strike of all Waterfront employees in San Francisco.

And Lozovsky mentioned, that Browder mentioned what the American policy was to that effect?

That they were trying to spread that into such a general Waterfront strike.

Then Lozovsky, after quoting this letter, this is still Honig testifying.

“As I recall, he did not read the entire letter.

He just quoted from it.

He said that he thought that from the contents of the letter and the tenor of the letter that perhaps the strike could be further spread into a general strike of all workers at least in San Francisco, not merely the Waterfront workers.

And he threw the floor open to — to discussion on the subject of the policy for the American Party to pursue.

That is to endeavor to bring about such a general strike of all the workers in San Francisco.

I’m not giving the exact words because I don’t remember them but that was about what he says.

That was about what Lozovsky said.

Then he called upon Schneiderman to state his opinion on what the American policy should be or could be.

Based upon what he had suggested himself since Schneiderman was the American representative to the common term.

He said, he felt that all — he said, he felt we all are to hear from him.

The witness giving two lines.

The witness,Schneiderman said that he thought that was an excellent suggestion.

That from what he understood and from what he heard Lozovsky read, are quote from the letter, “he thought such a general strike could be produced.”

Then many other people took the floor and agreed to that.

Lozovsky again took the floor.

I’m not giving the chronological order in which they spoke.

He reminded the people there with the basic Communist Party policy throughout the world that general strike should be regarded as rehearsals for seizure of power by the Party and the working class.

And the delegates became very enthusiastic again about that.

I should explain that phrase, “enthusiastic was in a moment stricken,” a request of defense counsel.

And they got up and endorsed what Lozovsky said and among them was Mr. Schneiderman.

He also said that that was true that he believes such a general strike was possible and that such a general strike would offer an excellent rehearsal for the seizure of power in the United States by the American Communist Party.

And comes a passage about the striking of the word “enthusiasm?.

Question, “Mr. Honig, I now direct your attention to the second meeting that was at the Red International of Labor Unions.”

I now direct your attention to the second meeting that you mentioned, the one that took place in the common term building, when did that meeting take place?”

Answer, “The same week as the one I mentioned at the Red International of Labor Unions.”

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

“And was it before or after that meting?”

“Afterward.”

“And who was present?”

“Myself and Schneiderman, Lozovsky again, Dmitry Manuilsky who was the secretary, I believe was the title head of the Communist International.

A man named (Inaudible), a man named Merrin who were jointly heads of the American — Anglo-American Secretary of the Communist Party.”

“About how many other people were there?”

“Oh, I guess about 20 people.

25 people at the first one, 20 people at this one.”

Isn’t that — these testimonies all undenied, stayed uncontradicted in the record.”

“At this meeting, was there a discussion of policy of the Communist Party of the United States?”

“Yes.”

“Will you relate what was said and who said it?”

“Lozovsky took the floor and reported substantially as the head of the Red International of Labor Unions on the San Francisco situation.

And after he’s finished, Manuilsky, the head of Communist International, took the floor and he said that on the basis of the talk he have with Lozovsky, he felt there was need of immediate action on the part of the American Communist Party to bring about such a general strike, that I have mentioned in San Francisco.

That they hope to start such a general strike up and down the Pacific coast but to start it immediately or as soon as possible anyway in San Francisco.

And the meeting took place — and the meeting took a vote on it.

And there were no abstentions.

There were no abstentions and there were no negative votes.

Everybody voted that such instructions to the American Party should immediately go forth from the Communist International to immediately prepare for such a general strike.”

“Did defendant Schneiderman participate in that discussion?”

“Yes he did.”

“Do you recall what he said?”

“He stated again as he have stated at the Red International of Labor Unions that he felt that the situation will becoming right to warrant such a general strike.”

Now —

John M. Harlan:

Is that brought home to anybody besides Schneiderman?

Philip R. Monahan:

Was that brought home?

John M. Harlan:

To any defendant besides —

Philip R. Monahan:

That was —

John M. Harlan:

— Schneiderman?

Philip R. Monahan:

— that was limited to Schneiderman.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

Now, in due course, there was a general strike in San Francisco.

I had hoped to tell you a little bit about it but because of the shortage of time, I’m just going to say that it’s in the Government’s brief, the whole story of San Francisco general strike and how the Communist Party in its official theoretical organ called “The Communist” took credit for the bringing about of the San Francisco general strike.

The strike that general — head of the N.R.A., I can’t think of his name now.

Johnson called bloody revolution.

Felix Frankfurter:

He had a vivid vocabulary?

Philip R. Monahan:

It could be vivid and still be accurate.

Felix Frankfurter:

I didn’t say that.

Philip R. Monahan:

Yes, sir.

Felix Frankfurter:

(Inaudible)

Hugo L. Black:

Was all these before the Schneiderman case before us?

Philip R. Monahan:

Was all these before —

What — what — did this occur before or after we had Schneiderman, this case right here.

The participation of Schneiderman in the Red — in Moscow?

Hugo L. Black:

Yes.

Philip R. Monahan:

That took place in 1934, sir.

The Schneiderman case was before this Court in 1942 and 1943.

But there was no such evidence as this in the Schneiderman case of this Court heard.

Hugo L. Black:

Did Honig testify with him?

Philip R. Monahan:

No.

He did not, sir.

Hugo L. Black:

Who is it?

Philip R. Monahan:

So far as I know, Honig was not known to the Government and he was a communist at that time.

Is that explains the situation, sir?

Hugo L. Black:

Yes.

Philip R. Monahan:

All right.

Hugo L. Black:

It’s okay.

Thank you.

Felix Frankfurter:

That’s the fact that Schneiderman had been in the record was now before the Court?

Philip R. Monahan:

Yes.

He admit it as I read his testimony.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Felix Frankfurter:

Yes.

Philip R. Monahan:

He — he said he dropped in, remember?

He dropped in at the Red — at the — at the Communist International.

Now, two years later, in September 1936, Schneiderman participated in a party meeting in which the idea of bringing out another general strike was discussed.

This one to tie up not San Francisco but the entire west coast with the objective of staging what, a rehearsal for the seizure of power in this country.

William J. Brennan, Jr.:

You’re talking about a subsequent?

Philip R. Monahan:

A subsequent discussion at which Schneiderman participated in which it was (Inaudible) the idea of bringing out another general strike.

This one —

William J. Brennan, Jr.:

For — for the purposes of preparation.

Philip R. Monahan:

Rehearsal for the seizure of power.

This one to be a little bigger not be limited to San Francisco.

They tie up the whole west coast.

Another occasion in 1936, Schneiderman advised a man named Carlisle who was the editor of the Western Worker, the predecessor paper of the People’s Daily World which — of which Mr. Richmond is the editor-in-chief.

And the relationship — is the relationship of just — I think — I think the Western Worker became a Daily and that — in some substance of it but it’s still control livestock and barrel by the Communist Party.

Schneiderman advised Carlisle, the editor of his paper, that he was being removed as editor because of his — of dilettante attitude towards his job.

He pointed out to him that the ultimate aim of the Party and hence the Western Workers only reason for being was to bring about a revolution in the United States and a seizure of power by the Communist Party.

Schneiderman told Carlisle that his dilettante attitude was not serving such a purpose.

One other I — it’s — it’s difficult to select this material from Schneiderman they took — there’s so much of it — but I — there’s one other episode that I’d like to relate.

In February 1947, Schneiderman addressed the party meeting on the subject of left sectarianism and right deviations.

Now, a left sectarian in the Party terminology is someone who is too impatient to wait for the signal to be given.

He wants to start revolution right away.

John M. Harlan:

Could I raise a question to you?

I take it that at least so far as the sufficiency of the evidence is concerned there is no shortcut except to go through this record with regard to each defendant, is that right?

Philip R. Monahan:

To the extent of the Government’s ability sir, we have tried to —

John M. Harlan:

I realize you’ve done a lot of help but still —

Philip R. Monahan:

I mean in the brief.

John M. Harlan:

— with all the help in that, there is no shortcut to evaluating this evidence without matching it against the position of each defendant.

That’s right.

There is no way in which you can take a broad brush to this problem, is there?

Philip R. Monahan:

I see no way, sir.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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John M. Harlan:

Right.

Philip R. Monahan:

But I want to point out —

John M. Harlan:

Therefore —

Philip R. Monahan:

— that in the Government’s brief each petitioner enlisted by name —

John M. Harlan:

I appreciate that.

Philip R. Monahan:

— and the evidence is listed underneath.

John M. Harlan:

I appreciate that.

All I was about to suggest to that is, since that is inevitable part of this job that we’ve got to do.

Philip R. Monahan:

Yes, sir.

John M. Harlan:

That it might be more profitable if you directed yourself to the legal points of issue that are involved here would surrender themselves better to our argument than this kind of thing.

Philip R. Monahan:

Would leave the Court I should do that.

John M. Harlan:

I’m simply speaking for myself.

Philip R. Monahan:

I — I agree —

John M. Harlan:

But the —

Philip R. Monahan:

I agree that there is no — there is no way of avoiding the duty of looking —

John M. Harlan:

In which they were —

Philip R. Monahan:

at the evidence.

John M. Harlan:

I was hoping your going to suggest that there was.

Philip R. Monahan:

I see no way, sir.

Earl Warren:

Mr. Monahan, as I understand this testimony of Schneiderman was limited to him, is that right?

Philip R. Monahan:

The testimony about Schneiderman’s participation in Moscow was.

Earl Warren:

And that was brought — that was brought in first by putting in his cross-examination and his denaturalization proceeding, is that right?

Philip R. Monahan:

That was brought in —

Earl Warren:

Into the case — into this case by the introduction of his testimony in —

Philip R. Monahan:

No.

Earl Warren:

— his denaturalization —

Philip R. Monahan:

No.

Earl Warren:

— case?

Philip R. Monahan:

No.

Earl Warren:

How did you bring it in?

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Earl Warren:

What’s the sequence?

Philip R. Monahan:

This was brought in as evidence of William Schneiderman’s intent in this case.

Earl Warren:

All right.

Now, how — how did you start your proof on that?

Philip R. Monahan:

Well, witness Honig was called and he was — he was a member of the Party since the early 1920s, I believe, and he told freely about William Schneiderman.

Earl Warren:

About William Schneiderman.

And then how — how did this testimony in the denaturalization case come in?

Philip R. Monahan:

I believe that was introduced by counsel for petitioner.

Incidentally, this is — this — this testimony is a matter of which the Court can take judicial notice.

This is on — it’s in the archives of this Court.

This is the testimony of Schneiderman.

Earl Warren:

I didn’t ask that.

I just asked you how it came in.

Philip R. Monahan:

I — I believe that petitioner, Yates, introduced certain evidence saying that she agreed with his testimony in that case.

Earl Warren:

She put it in?

Philip R. Monahan:

I believe so.

Hugo L. Black:

May I ask you one question —

Philip R. Monahan:

Yes, sir.

Hugo L. Black:

— about the legal sayings of the Schneiderman case but you haven’t covered them fully.

I don’t know.

I’m sure you will.

Suppose a man is accused by the Government of having received a $100,000 from someone which he failed to report in his income tax and the Government tries a case against him for penalty not (Inaudible) but for empty that issue is tried out in civil proceedings, the Government loses.

Suppose later, the Government prosecutes him criminal on the case where there’s the same question that comes up as to whether he received this $100,000 check.

Is there any doctrine either res judicata or collateral estoppel which would bar the Government from relitigating that same question again?

Philip R. Monahan:

If the exact same question —

Hugo L. Black:

Yes.

Philip R. Monahan:

— was determined, as I understand the doctrine of collateral estoppel that would bar.

Hugo L. Black:

So that’s the question in this matter?

Philip R. Monahan:

Oh, no.

I don’t think so.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Felix Frankfurter:

You mean there has to be identity and identity of issues in the two?

Philip R. Monahan:

Yes.

Felix Frankfurter:

Same — the same issue.

Philip R. Monahan:

Yes.

Felix Frankfurter:

That is — that is the objective sought has to be the same?

Philip R. Monahan:

The objective —

Felix Frankfurter:

Or —

Philip R. Monahan:

The objective sought?

The of —

Felix Frankfurter:

That’s the objective sought.

That means that you’ve got to ask for the same thing — the same — try to get the same kind of relief in the two cases that issue — that which mean?

You mean that, do you?

Philip R. Monahan:

I don’t mean (Voice Overlap) as a matter of — of the — of trying to get the same relief.

It’s a question of —

Felix Frankfurter:

Was that the subject matter that was canvassed?

Philip R. Monahan:

What — what issue was involved in the case?

What ultimate issue?

Felix Frankfurter:

Well take — to be specific.

The ultimate issue in denaturalization whether he had falsified.

That issue —

Philip R. Monahan:

The issue was whether or not the Government had proved by clear, convincing, persuasive evidence that William Schneiderman, in 1927 and during the preceding five years was not attached to the principles of the Constitution and they’re well-disposed to the good order and happiness of the United States.

That was the issue in the Schneiderman case.

That was the only issue in the Schneiderman case.

Felix Frankfurter:

That is the ultimate issue.

But the — that — that ultimate issue depended on whether or not (a) he belongs to an organization which — and his relation to that organization was such.

So there was a collision, inconsistent between the purposes of the organization which he was an active member and the implications before taking an oath to become a loyal citizen.

You can’t take the abstract question, the issue in that case was denaturalization case and this case violates the Smith Act.

The (Voice Overlap) —

Philip R. Monahan:

That’s not quite what I said, sir.

I don’t believe.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

It isn’t the fact that one of the denaturalization case the other one is a criminal case.

That’s not it.

Felix Frankfurter:

All right.

I think I — sorry.

Namely, whether you’re loyally attached, whether he was more falsely when he took an oath.

Philip R. Monahan:

In 1927.

Felix Frankfurter:

In 1927 (Inaudible).

Philip R. Monahan:

And this is about 1951.

Felix Frankfurter:

Well, that’s a different question whether — that’s a very different question.

I find it Margolis is (Inaudible) on the insanity.

Certainly, if there’s a new situation about status, you made sure that there’s a new situation but — but do you deny that an issue, a subject matter for the inquiries which have to be determined in the Schneiderman case was whether or not she’s an active member of an organization.

The purpose of which was the overthrow of the Government of United States by force —

Philip R. Monahan:

Yes, sir.

Felix Frankfurter:

— and violence therefore he couldn’t practicably swear to be loyal to United States.

Philip R. Monahan:

The Court specifically so stated in his opinion that —

Felix Frankfurter:

Very well.

Philip R. Monahan:

— that was not an issue.

Felix Frankfurter:

Is it — is part of that at least an issue of this case?

Namely, whether he’s an active participant of an organization?

Philip R. Monahan:

Yes.

But that was not an issue in that case, in the Schneiderman case.

Felix Frankfurter:

It was.

It had to be because you have to decide whether he has such relation to the Communist Party or the Communist Party was what it was in order to determine whether there’s a collision of loyalty.

Philip R. Monahan:

Well, Mr. Justice Murphy’s opinion, sir, states explicitly that the issue in this case is not the nature of the Communist Party.

We have never considered whether the Communist Party now or ever has thought one thing or another.

He explicitly so stated.

Felix Frankfurter:

Well, how can the Court issue the conclusion (Inaudible).

What was all the stuff that was put in there Lenin, Stalin, all these to me very important so far as literature is concerned, the stuff that we agreed in that case.

What was all that about?

Philip R. Monahan:

Schneiderman testified that he agreed generally with the principles and the statements and doctrines to be found in the classics.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Felix Frankfurter:

Now, those classic — those doctrines —

Philip R. Monahan:

The classic —

Felix Frankfurter:

— prohibits them — the question before them is no — that wouldn’t show any conflict to invoke as a loyal citizen, would it?

Philip R. Monahan:

But the Court didn’t hold that they were innocent as the freshly fallen snow.

He said a tenable conclusion.

He said this is not the — he said this is not the — the common sensory and this is not the — this is not the evident mean, a tenable conclusion is that — that the — the party advocates violence at some —

Felix Frankfurter:

That’s what the lower court did.

That — on that ground the Schneiderman decision — Schneiderman’s limitations here, is that right?

What you’ve just said —

Philip R. Monahan:

No, that’s what this Court said.

Felix Frankfurter:

What I mean the reverse of that was the law of course.

Philip R. Monahan:

Yes.

Felix Frankfurter:

So the nature of his activities in relation to the Communist Party was open roof of that case, wasn’t it?

Philip R. Monahan:

Not — not according to this Court.

Felix Frankfurter:

Well, what did it decide?

Unless, it decided that the lower court was wrong in attacking deleterious implication —

Philip R. Monahan:

To the classics, not the Communist Party, to the classics.

Felix Frankfurter:

Well, then the materials here are the same materials pinned down to the Communist Party, aren’t they?

Philip R. Monahan:

The materials up — up to 1927 we’re the only ones an issue.

Felix Frankfurter:

That’s a different point on one hand.

I’ve — I’ve no doubt about it that you can show or rather be open that the Government show that what was true in 1937 and 1943 when the Schneiderman case is decided.

Was true because in those days, that was a benign organization and now it’s not a benign organization.

And then it would be open to the other side and getting all the experts on the subject as to what (Inaudible) what he doesn’t.

Philip R. Monahan:

May I read some — the pertinent language of the Schneiderman opinion, sir?

This court has never passed upon the question of whether the party does so advocate force and violence and it is unnecessary for us to do so now.

We do not say that a reasonable man could not possibly have found as the District Court did that the Communist Party in 1927, actively urged the overthrow of the Government by force and violence.

But that is not the issue here.

In so holding, we do not decide what interpretation of the Party’s attitude towards force and violence is.

We do not decide what interpretation of the Party’s attitude towards force and violence is the most probable on the basis of the present record or that petitioner’s testimony is acceptable at face value.

We hold only that where two interpretations of an organizations program are possible.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Hugo L. Black:

What organization?

Philip R. Monahan:

Any organization.

Hugo L. Black:

Which one are we talking about then?

Philip R. Monahan:

I think it is general, he just stated that — that the — that the nature of the Communist Party is not an issue, are passable, the one reprehensible and a bar to naturalization and the other permissible.

A court in a denaturalization proceeding assuming that it can reexamined a finding of attachment upon a charge of illegal procurement is not justified in canceling a certificate of citizenship by imputing, see, by imputing the reprehensible interpretation to a number of the organization in the absence of overt acts, indicating that such was his interpretation.

Felix Frankfurter:

I’m not — I’m not questioning.

Philip R. Monahan:

I think there were overt acts in this case.

Felix Frankfurter:

I’m not questioning that the merits of the decision went one way rather than another.

That — that’s what all that talk means because what was the difference in the majority and minority in the Schneiderman case except the difference on what was allowable — an allowable deduction by the Commissioner if that was his name in the courts below as to the meaning of this evidence?

Philip R. Monahan:

Meaning of the classics.

Felix Frankfurter:

What?

Philip R. Monahan:

The meaning of the — of the classics.

Felix Frankfurter:

And on — most of your evidence — most that’s above your evidence at the start isn’t it?

Plus the — plus the relation.

Philip R. Monahan:

Plus the intent.

Felix Frankfurter:

I understand that.

But the — the only question is whether this man can be differed.

Most of which was before us in the first Schneiderman case, is not necessarily — is not necessarily a canvas plus some other consideration of being different canvass in the first Schneiderman case.

Philip R. Monahan:

It was a lot — a lot of the — a lot of the classics that were in evidence here that were not evidence there.

Felix Frankfurter:

I understand all that but collateral estoppel doesn’t mean that the two litigations must be identical.

Collateral estoppel, as I understand it means that some issue that was canvass in one litigation no matter what the subsequent result was, is again in controversy in the later end.

Philip R. Monahan:

The Schneiderman decision established that Schneiderman has a certificate of sanity, as its counsel put it, but it’s dated 1927.

And what is more, the certificate does not say that he was sane then.

It says that the Government did not prove by the requisite degree of evidence that he was not sane.

Felix Frankfurter:

But collateral estoppel doesn’t concern itself what the merits of the decision was.

It concerns itself the fact that included in the decision or the range of equality which is now again the range of equality.

Hugo L. Black:

To get my position clearly.

I’ll just ask you here.

As I understood the Schneiderman case, if I still understand it, there were certain books introduced in evidence.

The Government sought to draw from those books the idea that the meaning of it was that they would urge people to commit violence and overthrow the Government.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Hugo L. Black:

The lower courts so held, they got up here in this Court in passing on those documents, those books tell that it could not be given that interpretation because that it didn’t supply the kind of proof necessary to establish that influence.

As I understand that you’ve offered those same documents here.

You have relied on precisely the interpretation here that the Government — that this Court held could not be given those particular document.

Now, that doesn’t mean that you couldn’t have other evidence in addition to that of course which would make this case altogether different.

But why are you entitled if the doctrine of collateral estoppel is valid?

And I think we’ve held that it isn’t the case that’s left here.

Why are you entitled again to relitigate between Government and the same individual of the —

Philip R. Monahan:

(Voice Overlap)

Hugo L. Black:

— meaning of that — of those books which this Court has said did not establish what you must say that you establish here either in whole and heart —

Philip R. Monahan:

Did — does it have to be the same individual?

Hugo L. Black:

Well —

Philip R. Monahan:

Why would you argue —

Hugo L. Black:

(Voice Overlap)

Philip R. Monahan:

— individual.

Hugo L. Black:

This is the same individual.

I certainly — it’s not I — I don’t suppose there’s been any doubt that at least I don’t think so.

There were two parties, litigate points.

The Court decides it as between those two parties, the findings of fact cannot be relitigated in subsequent proceeding.

Is that right or not?

Philip R. Monahan:

But the — but the only finding of fact that was peculiar to Schneiderman was his state of mind, not — not —

Hugo L. Black:

But — but —

Philip R. Monahan:

— the concepts of the classics.

Hugo L. Black:

But didn’t the Court, unless I’m wrong, maybe — maybe I’m wholly wrong.

Philip R. Monahan:

Yes, sir.

Hugo L. Black:

Didn’t the Court take up those what you call classics?

I’m not sure I would so call it but didn’t the Court take up what you call the classics?

And the Government insist that they meant one thing and this Court hold that they had failed to prove that they meant that and determines that issue against them.

Philip R. Monahan:

And the Court did not say that it meant the other thing.

Hugo L. Black:

But — I’m not talking about what it said it meant.

Didn’t it decided against the Government on the point, on the interpretation of those particular books?

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

The Court said that it was a tenable conclusion.

Hugo L. Black:

But I — well suppose it was tenable but it wasn’t enough to prove it.

It decided against them on that issue, didn’t it?

Philip R. Monahan:

On — with respect —

Well, now, can you litigate that again?

With respect to those books that —

Hugo L. Black:

That’s right.

Can you litigate that again with reference to those particular books?

Philip R. Monahan:

We — it’s possible to — to — here’s a book that wasn’t in evidence.

Hugo L. Black:

I understand that.

Philip R. Monahan:

And this was a book that was used of a textbooks —

Hugo L. Black:

I don’t not —

Philip R. Monahan:

— by one of these petitioners.

Hugo L. Black:

I do not understand that the defense of collateral estoppel is dissolved, takes the position that you could not prove to their fact in dispute in the Schneiderman case by new and additional evidence which has come out since but not with reference to the period anterior to 1927, I understand they say that and that you can’t use those same books to give them a meaning which the Court has said, they could not be given in that case.

And unless I’m wrong about —

Philip R. Monahan:

I believe —

Hugo L. Black:

— the collateral estoppel what — it seems to me that’s right (Voice Overlap) wrong?

I — I believe that is a — a doctrine of collateral estoppel which has never been as follows by this Court.

Why?

Why do you say that?

Philip R. Monahan:

Because the —

Hugo L. Black:

If the Court reaches a conclusion in certain evidence, does not mean this and the same part is litigated again, can either one of them raise the question for the second time and say that the books do mean what the Court said the Government have failed to establish the first time.

Philip R. Monahan:

I think as — as long as the matter is evidential and not the issue, it’s permissible.

And you —

Hugo L. Black:

In other words you think —

Philip R. Monahan:

— if a man is acquitted of — of shooting (Voice Overlap) —

Hugo L. Black:

Well was that (Voice Overlap) —

Philip R. Monahan:

— it doesn’t mean that you can’t be convicted of shooting why with this gun.

Hugo L. Black:

Well, that unfortunately, I tried a case exactly to the contrary.

If you look up the case of Moss against the State of Alabama, you will find that a man shot two people.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Hugo L. Black:

They treated the doctrine of collateral estoppel because he was convicted — he was convicted for killing one.

The second time they pleaded that the fact of the — they determine that he’s wholly.

It was not that of — of a murder or what it was.

The Court of Alabama and in line with most of the authorities of the United States held that they could not litigate that same question twice.

But you’ve used an illustration which I happen to know is — is an old classical illustration of the use of the doctrine of collateral estoppel, not res adjudicata but collateral estoppel.

Philip R. Monahan:

I believe, sir, that if your contention is carried through, to it’s —

Hugo L. Black:

I’m — I’m just trying to get you to say why that’s not correct?

Philip R. Monahan:

Well, I’m — that’s what I mean right now, sir.

Carry to it to the full extent of his logic.

That would mean that these classics couldn’t be used against anybody anymore.

Hugo L. Black:

Why wouldn’t?

It hadn’t been litigated just between the other parties.

Philip R. Monahan:

But is that — that is not a relevant point to the — to what we are talking about though the fact that they haven’t been —

Hugo L. Black:

It’s relevant to what I’m talking about.

Philip R. Monahan:

The Court looked at these — at these classics objectively.

That they read what’s in the classics objectively, not — not with — not with necessarily with the relation to Schneiderman.

I say —

Hugo L. Black:

Well, they didn’t.

They didn’t do it in a detached way it wasn’t — they didn’t just take up the classics and write an essay on it, did they?

Philip R. Monahan:

I believe that under your point, sir, that the Judge would have to instruct the jury in all — all Smith Act cases that a tenable conclusion from these classics is this.

Hugo L. Black:

Well you — I haven’t made my position clear.

Felix Frankfurter:

That the couldn’t — there has to be identity of partnership.

That’s right.

Felix Frankfurter:

In the law there are three situations, three doctrines.

All of which goes to the point that a thing that’s been litigated to us shouldn’t be relitigated with the same party.

The doctrine collateral estoppel, doctrine res judicata, doctrine of double jeopardy all applies to either criminal case and they apply on a fortiori under criminal case.

So, there you have the extra consideration that you shouldn’t harass a defendant more than once, either for the regard at the same time or regard to the determination of (Inaudible) which is part and apply a proceeding.

Philip R. Monahan:

Well, sir —

Felix Frankfurter:

(Inaudible)

Philip R. Monahan:

Yes, Sir.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

I believe you did, sir.

John M. Harlan:

Could I ask you this question?

Take the document of collateral estoppel as barring from using this evidence.

Have you got enough to hold this case against Schneiderman without resorting to that pre-1927 evidence?

Do you have to rely on the pre 1927 evidence?

Philip R. Monahan:

I would say not, sir.

John M. Harlan:

What’s that?

Philip R. Monahan:

I would say not.

John M. Harlan:

Do you think — you think you can forget about collateral estoppel and start from 1927 and still hold the verdict against him?

Philip R. Monahan:

Yes, sir.

John M. Harlan:

You do?

Felix Frankfurter:

Well how do you know the jury would have so found.

It’s a question of what you now agree leading (Inaudible)

Philip R. Monahan:

Well that —

Felix Frankfurter:

— that’s the question that went to the jury?

Philip R. Monahan:

That is the point that I’ve mentioned a minute ago.

I — I believe under Mr. Justice Black’s contention, the logic of that contention would require that that — that the jury be so instructed.

And not just about Schneiderman, against anybody, against Mr. Dennis because it was those classics that were used in the Dennis case.

Hugo L. Black:

But it had not been previously litigated with Dennis.

I’m talking about his doctrine where the parties are identical and after the second time there’s an effort made to relitigate the point in the Court.

And I suppose that doctrine does apply with special emphasis to criminal cases.

Both, because of the doctrine in form of jeopardy, because this Court reviewed the — as not being proving what is said to be done on the lighter burden of proof than that of guilt beyond a reasonable doubt.

Now, for what I’m asking you it doesn’t apply to any of the other defendants.

There’s no application at all.

Philip R. Monahan:

You were asking me sir?

Hugo L. Black:

I say the — the point I have been asking you about, from my standpoint would have no avocation to any of the other defendant except Schneiderman.

Philip R. Monahan:

And my observation is I failed to see why not.

You see that’s — that’s the rule but I don’t see the reason behind that rule is my point.

Felix Frankfurter:

Mr. Monahan, yet by way of — before you sit down, cover up one thing.

I think it’s important.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Felix Frankfurter:

You will be arguing I take it eventually, and I understand this correctly, this question of what organized in all — an organizational (Inaudible)

Philip R. Monahan:

I’ll take it out right now if you like sir.

Felix Frankfurter:

No.

I — I have no logic to say that — the concept, the responsibility in the burden.

I just want you to show when you’ve come to that question, to argue the point that it made in your brief, pages 94 and 95.

Philip R. Monahan:

Yes, sir.

Felix Frankfurter:

That whether the Government don’t concede that — I have no issue of the matter that it was not.

If you want to bear in mind in contrary.

I don’t want to interrupt you further.

Philip R. Monahan:

I’m — I’m going to come to it very shortly.

Felix Frankfurter:

When it comes to that point.

Would you please deal with the Government’s position that even though the Government maybe wrong (Inaudible) what organize mean.

It doesn’t matter because the conviction can be held under the score of (Inaudible).

That is your position in the brief isn’t it?

Philip R. Monahan:

Yes, sir.

That Double-barreled argument.

Felix Frankfurter:

Yes.

When you come to the crux of that, that question, can you please bear — bear in mind my difficulty, namely, that this is not a situation, so that’s fine, I just want to —

Philip R. Monahan:

Yes sir.

Felix Frankfurter:

— I don’t want to interrupt you.

That this is not a case of pre (Inaudible) if there’s anyone of you who imposed the word.

It may well be — it may well be that under the indictment, Judge Mathes could have charged the jury that the convicted defendant if you find either, you find that you’re disjunctive either they could file the application or conspired to order, if yet so charge then your argument would be briefly valid.

But whether he — needlessly charge that they must find that they both advocated and organized, then the argument that you’ve made seems to me not justified by the accepted (Inaudible) because he told the jury, “Don’t answer unless when it comes,” he told the jury that they must find both, although he probably will follow and so forth.

But since he told that we (Inaudible)

When you come to that point —

Philip R. Monahan:

Well, may I answer right now sir?

I’d like to answer right now —

Felix Frankfurter:

Suit yourself.

Philip R. Monahan:

— if I may?

Felix Frankfurter:

Suit yourself.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

I think that —

Felix Frankfurter:

I just want to — you ask the two upon that.

Philip R. Monahan:

The situation is just — I believe just the reverse of the way you put it.

If he had charged the — they — had to find either one or the other.

Then it could not be determined from their verdict which of those they found.

And therefore, it would be incumbent upon the Government to — to defend the sufficiency of the evidence as to both but since he charged that they had to find both organizing and advocacy.

And since they — in order to convict and —

Felix Frankfurter:

Assuming that he mischarged them unorganized that he misinstructed on organized, that’s the whole point.

If he — if he instructed them properly, there is no problem.

But if he instructed them improperly as to what organized mean.

Philip R. Monahan:

It’s — we still know that the jury found — found the defendant’s guilty under the advocacy branch of the indictment.

Felix Frankfurter:

But how do we know if he charged him properly under organize they would have so found?

How do we know that if he had charged them properly, as to what organize mean and he assumed that he charged them for purpose of this argument improperly that they then would have brought in that verdict.

Philip R. Monahan:

Because they were told that they had to find —

Felix Frankfurter:

Both.

But one of the (Voice Overlap) —

Philip R. Monahan:

In the —

Felix Frankfurter:

— ther were told to find is a thing they had no business to find under the law.

Philip R. Monahan:

But at least we — at least we know that they found them guilty under that branch of the indictment which you say they were properly —

That doesn’t left to them — that wasn’t left with them.

They found that they were found guilty under a branch of the indictment containing two — two clauses, two lanes, one of which was a — was written in that — they couldn’t rest that.

And therefore, we do not know whether they were fraud in the verdict on the advocacy, if they’ve been properly instructed under organize the ultimate relation then as to what the jury had done.

We — we know that they found them guilty under advocacy.How do we know that?

Because they were —

Felix Frankfurter:

They did find them guilty of that.

Philip R. Monahan:

They had to.

Felix Frankfurter:

Found them — they found them guilty of advocacy and organized as the judge defined organized.

Philip R. Monahan:

Right.

But I still say they found them guilty under the advocacy branch.

They found —

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Felix Frankfurter:

An accumulated statement of what the jury brought in.

Philip R. Monahan:

The jury found them guilty of both because —

Felix Frankfurter:

That’s right.

— because they had to out of the judge’s instructions.

Yes.

And one of the things on which, they both included something that was erroneously found.

Philip R. Monahan:

I didn’t get the last point you made, Your Honor,

Felix Frankfurter:

That — that both included one half which was an error.

That we don’t know what the relation, we need to have word.

Philip R. Monahan:

We’re — we’re assuming for argument that the one was error.

Felix Frankfurter:

Well, that’s the error.

Philip R. Monahan:

I — I —

Felix Frankfurter:

It doesn’t have to (Voice Overlap) —

Philip R. Monahan:

I think — I think they’re separable — I think they’re separable.

I don’t understand Your Honors point, how the jury might have mingled them.

Felix Frankfurter:

Well, I don’t know.

I wasn’t in the jury room.

Philip R. Monahan:

Well, but you can read the instructions.

Felix Frankfurter:

But, I don’t know how they acted on it.

They were told to find, they must find A and B and they come up and found A and B being on (Inaudible) on the assumption that was erroneously charged verdict.

And therefore, I don’t know whether they were brought in A, if they had a difference.

Philip R. Monahan:

We must assume that they followed the judge’s instruction and the judge instructed — instructed them that they had to find both to convict.

Felix Frankfurter:

And they did.

Philip R. Monahan:

And they did.

Felix Frankfurter:

And you can’t get any help from both because one of them is there.

Philip R. Monahan:

I don’t quite follow Your Honors reasoning there, sir.

Felix Frankfurter:

All right.

Philip R. Monahan:

But —

Felix Frankfurter:

I’m afraid I can’t make it clearer.

Philip R. Monahan:

But that argument is not of greater importance in the Government’s position then our argument that the jury was properly instructed.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Felix Frankfurter:

I — I didn’t mean to read that part.

Yes, sir.

I — now I think, I’ll — I’ll take up now the point about the propriety of the instruction unorganized.

The judge instructed the jury that the verb organized as used in the Smith Act and the indictment include — this is on page 935 of 106 F.Supp.the second column at the very bottom of the page.”

The verb organized, as used in the Smith Act and the indictment includes the recruiting of new members and the forming of new units and the regrouping or expansion of existing club, classics and other units of any society, party, group, or other organization.”

Now, the essence of the petitioner’s contention is that the Communist Party was organized in 1945.

And that therefore, more than three years had elapsed between that date and the return of the indictment in this case with the result that the organizing clause of the Smith Act as a prosecution under the organizing clause of the Smith Act was barred by limitations.

Now, it is the Governments contention that that is erroneous, super — super technical contention.

Organize, we say within the meaning of the Smith Act, is a continuing process.

It goes on from day-to-day and no one recognizes this fact better than the Communist Party itself.

What is the name of the leader of an of — of a unit of the party?

The — the name of the leader is the organizer.

What is the name of this — of the second in command?

Oleta — Oleta Yates with the second in command of the California Party, the organizational secretary or Oleta Yates testifies herself in this case that one of her duties as organizational secretary is to recruit members to make the Party a bigger organization.

The organization of a Communist Party is not static.

Once done and forever accomplished sort of the event that the petitioners claim.

John M. Harlan:

Judge Dimock took a different view of it in the Flynn case, didn’t he?

Philip R. Monahan:

Yes, sir.

And I believe that the judge in the Mesarosh case did too.

John M. Harlan:

All the lower courts have taken a different view except this one, haven’t they?

Philip R. Monahan:

I — I’m not prepared to make such a broad statement of that, sir.

I — I know of two judges that has —

John M. Harlan:

Check the cases —

Philip R. Monahan:

Is that so.

John M. Harlan:

— and that’s all of it and I didn’t find any difference, any exception.

Philip R. Monahan:

I know that the judge in the Flynn case did and — in — I believe in the Mesarosh case too but I’m not informed as to the other Smith Act cases.

Now, let me give a couple of other examples of how the Communist Party is constantly organizing.

Spector, in 1936 came out from New York to become the county organizer in San Francisco.

Some 14 years later, in 1950 he’s identified as the southern division organizer of Los Angeles County.

In 1945, Lima is the field organizer, working out in the San Francisco office.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

Three years later, he’s again identified in the record as a field organizer of the same party etcetera.

Hugo L. Black:

Is that mean organizing subsidiary units?

Philip R. Monahan:

That for example taking a section, breaking it up into new units, amalgamating sections making activities designed to make the Party more effective as the dictionary defines it, a more effective organization.

Felix Frankfurter:

Is adding new members to impose self-organizing, an active drive to bring life for (Inaudible) organization and making it more dynamic, is that organizing?

Philip R. Monahan:

That, plus the breaking up of — of units, the amalgamation of units that whole process is in a —

Felix Frankfurter:

I didn’t want to add breaking up and having you — suppose there’s an organization, a rather sleeping kind of an organization along with vigorous — I don’t mean — a vigorous young fellow and he sets it up and included as a membership, is that organizing under the Smith Act?

Philip R. Monahan:

Yes.

I think that that is.

Felix Frankfurter:

That is?

You would have to — that is so under Judge Mathes’ charge, isn’t it?

Philip R. Monahan:

He — yes.

He says the — that includes recruitment.

Hugo L. Black:

Recruitment.

Yes.

Felix Frankfurter:

So that’s really —

Philip R. Monahan:

And —

Felix Frankfurter:

— clearly the issue in this case.

Philip R. Monahan:

And one of the — one of the petitioners in this case testified that that was part of her duties —

Felix Frankfurter:

Well I’m —

Philip R. Monahan:

— as the organizational secretary.

Felix Frankfurter:

— I’m trying — just trying to find out what the problem — that is the problem, isn’t it?Recruitment is organizing.

Recruitment is organize under the judge’s charge?

Philip R. Monahan:

Yes.

He — he included that among other things.

He didn’t say that alone.

He said this plus the process of dividing and rebalancing and regrouping, he lump them all together.

Yes, sir.

Hugo L. Black:

Well, that means that a minister is —

Philip R. Monahan:

Pardon me sir?

Hugo L. Black:

A minister has established church as an organizer, have this organization such as you referred to here?

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

And —

Hugo L. Black:

A minister —

Philip R. Monahan:

Oh, a minister.

Hugo L. Black:

— of the church.

A man who works in the church tries to get new members of the church which is longer and established?

Philip R. Monahan:

Revitalize, revivify his congregations and so forth?

Yes, I think so.

I think that —

Hugo L. Black:

I’ve — I’ve — fraternal society send out people, they have some who organize new units.

They are organizers but you would say that even the man who are working in the fraternal society just from time to time trying to improve the established organization or that they are organized.

Philip R. Monahan:

Improve it —

Hugo L. Black:

Yes.

Philip R. Monahan:

— build it up.

Hugo L. Black:

People working in it.

Yes.

That — there is a member of it and they have prolonged.

Philip R. Monahan:

Anything — anything directed towards making the organization more effective for the purpose for which it was created.

Hugo L. Black:

Is that a rather unusual meaning of it?

Philip R. Monahan:

I think it’s a realistic meaning in the — in the light of — of a — particularly, in the light of the congressional intent.

Hugo L. Black:

Is that — do we have to hold that that’s the meaning of it here in this case to sustain the Court’s charge?

Philip R. Monahan:

No.

Hugo L. Black:

Is there a difference between you in that?

I haven’t yet quite caught it under you’ve explained it here.

Philip R. Monahan:

No.

For the reasons which Mr. Justice —

Hugo L. Black:

I understand about the other —

Philip R. Monahan:

You want — you want (Voice Overlap) —

Hugo L. Black:

Get the error without injury.

Philip R. Monahan:

In other words, you understand the alternative?

Hugo L. Black:

Yes.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

Yes.

Hugo L. Black:

But the charge as to its validity does depend on whether — whether the organizing — whether an organizer is a man who goes and create new units and so forth.

However, he just works or upon those that already organized.

Philip R. Monahan:

Not — not working is working among those were already organized.

The recruitment of fresh blood —

Hugo L. Black:

Getting in new members, already established —

Philip R. Monahan:

Exactly.

Hugo L. Black:

— institutions.

Philip R. Monahan:

Exactly.

Felix Frankfurter:

That’s organization?

Hugo L. Black:

That’s an organization.

Philip R. Monahan:

The verb organized includes the recruiting of new members, as what he said among other things.

Now, Congress when it passed the Smith Act — Mr. Justice Harlan, in reply to your question a moment ago, I’m informed by enclose shift that Judge Mathes charged was followed in the Smith Act cases in Honolulu, Seattle, Saint Louis, Denver, New Heaven and Detroit.

In 1940, when Congress passed the Smith Act, which new — which had the organize language in it.

It is perfectly clear from the legislative history of the act that, perhaps, the organization that they had in mind was the Communist Party of the United States.

Now, that Party originally was organized in this country in 1919.

Now, if the petitioner’s theory is correct, it would mean that the Communist Party, I mean that the organized clause of the Communist Party, could never been applied to the Communist Party since 1917 was more than three years prior to the enactment of the Smith Act —

Hugo L. Black:

Why would —

Philip R. Monahan:

— hadn’t not been for the fortuitous interlude of the Communist Political Association from 1944 to 1945.

Hugo L. Black:

But why would that be — couldn’t — couldn’t they refer to going around and organizing new units as I suppose they were trying to do, and most of them do, organization.

I can — I can understand that meaning clearly.

Certainly, that’s organizing and you go and create a new, whatever they call it.

Philip R. Monahan:

I would — but if you say that if there’s a section and the section is broken into two.

Hugo L. Black:

No.

I want to think about, I was thinking about going — organizing, starting a new unit.

Philip R. Monahan:

Well —

Hugo L. Black:

They have different units and all that these are smell I suppose (Voice Overlap) —

Philip R. Monahan:

A new — a new unit has — a break off from an old unit.

Say there’s a unit in a southern part of Los Angeles, I say.

A new unit is created.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

You said that you had no problem there.

That is organizing.

But this general work all over — not only with California but all over the country.

The principal purpose of which is getting up new members into the organization as — as petitioner Yates said, “To make the party a bigger and more effective organization,” you — you apply it and you have to say you have difficulty in — in applying organize to that concept.

Hugo L. Black:

I have to — the Chamber of Commerce — fraternal society, they have people that organize new or plunge in.

They have people who go and organize new club.

That’s organizing.

But I wouldn’t suppose they’re just being a member of those club —

Philip R. Monahan:

Is it —

Hugo L. Black:

— that think of myself, when I’m alone or whatever going out to get a new member I try to organize (Voice Overlap) —

Philip R. Monahan:

But what are you — how do you organize?

You’re organizing the new units.

Are you organizing the Party?

I mean are you organizing the — the main organization?

Hugo L. Black:

You’re organizing that one and if you organize that under the Smith Act for the purpose of advocating the overthrow of the Government.

You’d be guilty of violence.

Philip R. Monahan:

I mean the Smith Act says it should be unlawful to organize a group assembly —

Hugo L. Black:

That’s right.

Philip R. Monahan:

— or society of person.

Hugo L. Black:

Now, let’s say organize, if they didn’t have unit in San Diego said and they go down in that organize one and organize it for that purpose.

They’ll be guilty of violating the Act clearly if they act — they prove it.

Philip R. Monahan:

I think that the — that the —

Hugo L. Black:

But if they already had one in Los Angeles?

The only business was, some of one to get some new members, would you call that organizing?

Philip R. Monahan:

I submit, Your Honor, that the — the clear — the plain meaning of the Smith Act in the light of its legislative history is that what they’re talking about is the organization of a group, like the Communist Party.

It’s clear to ask what’s the — what’s the — the aim of the Smith Act.

There’s no doubt really about that.

And not — and not just units of the Party but the Party.

Now, I’d like to speak very briefly if I may on the contention of the petitioner’s that they were denied a fair trial.

Their contention is divisible into two parts.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

At the time that the trial started there was running in a local paper in Los Angeles, a series of articles by Herbert Philbrick who was one of the Dennis witnesses on telling about his — his experiences in the Communist Party.

I think it was called “I led three lives” or some — something like that.

This was syndicated nationally.

Petitioners asked for a 60-day continuance, asked a 60-day period to commence at the end of the running of that series of articles before the — the trial started.

That motion was denied and the petitioners contend the denial of that continuance was prejudicial error.

Their voider examination of the prospective jurors in this case however indicates that the judge asked all the prospective jurors on the panel, whether or not they had read or seen anything about these series of articles and all except one, said they had not seen anything about it.

And this one, a woman named Flanagan was not among the persons selected for jury to read.

Now, it is true that that series of articles continued for a few days beyond that questioning into the beginning of the trial.

But the judge explicitly admonished all the jurors that they were to read nothing about the case and that they were to base their verdict solely upon the evidence they heard adduced in the courtroom.

Now, the petitioners speak about building inference on inference.

I say there’s an inference on inference to assume that the jurors must have violated that explicit instruction of the judge in that respect.

The judge emphasized to the jurors in this manner.

He said, “If we could try these cases upon what the jury reads in the magazine or hears over television or sees in a newsreel, or reads in the paper, it wouldn’t be necessary for you to come down at all, we could just ask you to mail in your ballot as to whether or not the defendant is guilty of innocent.

But that is incompetent evidence.

In order to have a jury that is absolutely impartial, we have to have people who can decide the issue, not upon something they’ve heard or read outside the courtroom but upon the evidence adduced here in a lawful and competent manner.”

Well, in other words we start out with a jury, all of whom have sworn that they — that they have not read anything about the Philbrick articles and then they’re instructed along this line all the way to through the trial.

The Government contends that there is no substance at all for that contention.

Now, the second facet of the argument —

Who is Philbrick?

Was he a Government employee?

He was a Government witness in the Dennis case.

Earl Warren:

Is he aid informer?

Philip R. Monahan:

He was a confidential informer.

Earl Warren:

He had been — he had been in the Party, in the pay of the Government?

Philip R. Monahan:

He had been in the Party, just about what his natural rate, we’re not informed whether —

Earl Warren:

I beg your pardon?

Philip R. Monahan:

Well, his financial arrangements were, I am not informed whether he got a pay or expenses on what it was.

I’m not informed about that.

Earl Warren:

Was that — wasn’t that gone into the trial?

Philip R. Monahan:

Not to my knowledge, sir.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Earl Warren:

All right.

Felix Frankfurter:

He is a (Inaudible) is he?

Philip R. Monahan:

Yes, sir.

Now, the second facet of that contention has to do with a release put out by the Internal Security subcommittee entitled documentary proof that the Communist Party, U.S.A. teaches and advocates the overthrow and destruction of the United States Government by force and violence.

This consist of a compilation of material which was —

Is that Philbrick?

Philip R. Monahan:

No.

This is a separate.

This is something entirely separate.

This — this document was published by the committee.

It contains — a — a brochure put up by the Federal Bureau of Investigation and given to the committee at the request of the committee in which various materials from these classics are assembled as proof that the Party teaches force and violence.

Now, this committee point was released to the public at a time, I think, during the closing arguments in this case.

And it got a lot of nationwide publicity including publicity in the papers in Los Angles.

Now —

Earl Warren:

What committee was that —

Philip R. Monahan:

The Internal Security Subcommittee of the Judiciary Committee, the McCarran Subcommittee.

The petitioners have from the beginning cleaned and least insinuated that this was given out by the McCarran Committee with the express design of a — of a — influencing this case but without a shred of — there’s not a shred of evidence in the record to substantiate that claim.

Now, the — the way the matter was handled was — it’s as follows.

I think I can best give the thinking of the judge — they moved for mistrial.

They moved for a mistrial on the basis of this.

That the Court said, the colloquy of counsel about this matter.

“Is there anything in any of this material, even if we were to assume that the jury have seen it?

Is there anything but quotations that are involved here?”

I’m reading from page 15655 of the green — green bound record.

And 6 — 13657, the Court says “Assuming for the purpose of this discussion that the jury has read it, could it be any possible news to them that the Department of Justice make such contention?

I do not think it could possibly be new as to them if the head of the Federal Bureau of Investigation so believes.”

The Court “Who is stating it?”

“Mr. Showman a defense counsel, the Federal Bureau of Investigation, in fact the Government of the United States.”

The Court “Would that be any surprise to the jury that the Federal Bureau of Investigation, two of whose members have sat here throughout this trial, contend that the Communist Party so advocates.”

The Court “Very well, I will ask you again”.

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

He’s now speaking to defense counsel.

“Do you suppose it could possibly be any surprise to this jury that the Federal Bureau of Investigation contends with the Communist Party throughout the case?”

Anyone who reads the article sees that the source of a Stalin statement, the Stalin statement is the report quotes, “The Russian Premier as writing in 1939, proletarian revolution is impossible without the forcible destruction of the bourgeois state machine and the substitution part of a new one.”

“It seems to me I’ve heard that right here several times in the last six months.”

The Court “When the matter was presented yesterday morning, I thought there was possibly something new.

I haven’t seen the article.

But when I read the article, I didn’t see anything at all in it that any person in this courtroom, who had attended this trial wouldn’t recognize as having been read here, not once but several times.

And a thought it occurred to me that of all the people in this community who would be least affected by that article, the jury would be and the counsel and the Court in this case who sat here for several months, hearing that sort of thing, read.

To whom it would be no news, whatever.”

Skipping again, “Of course we would like to have nothing mentioned in the press or anywhere else that could possibly influence, even the community while a case such as this is under way.

But the world can’t stop while the trial goes on.”

The Court “Let me ask you then, do you suppose when it is known, when — when one of the most mentioned names in this case of the FBI, when you gentlemen for the defense have brought out time and time again at this trial that two members of the Federal Bureau of Investigation sit there at counsel table throughout the trial.”

“Do you suppose that any member of the jury would be naïve enough to believe that J.Edgar Hoover, the head of the Federal Bureau of Investigation has contrary ideas to what was being urged by the Government?”

But despite that, the judge offered to defense counsel to query the jury as follows.

Whether any of them had seen the article or any reference to it in the press and if so, whether any of those who had seen such reference felt in any degree, whatever, disable from basing his verdict, solely upon the evidence in the case.

Now, I know that petitioners in their reply brief say that their objection to — to that question was the fact that it was a compound question.

That they wanted first to ask whether any of the jurors had heard it.

And secondly, to have it broken down and secondly, as — so — so that it could be determined whether any had.

And secondly, to find out from those who had read it, whether they had been unduly influence so as to render them unable to return a verdict.

However, the Government —

Earl Warren:

The judge wouldn’t permit it to be asked in that form?

Philip R. Monahan:

That’s not — that is not so, sir.

That is the point that they make in a reply brief.

The record does not substantiate that as I shall now proceed to show.

The Court “There will be only one question.”

I now read 13714.”

There will be only one question.

It is whether that has happened to them and if so, has it affected them in such way, any of them that they feel they could not with open mind decide this case solely upon the evidence adduced here as they are duty bound and ought bound to do and that is all.”

Then we take their word, whatever it is.

Now, Mr. Leonid, one of the defense attorneys says, “Your Honor there seems to be two questions.”

Audio Transcription for Oral Argument – October 09, 1956 (Part 2) in Yates v. United States

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Philip R. Monahan:

One is “Did they see these articles, newspapers or hear the radio stories?”

And the second was “What Your Honor proposed, what effect did that have on them?

And could they lay it aside and so forth?”

The Court “I expect to put it as a compound inquiry.

It is a matter for the jurors’ conscience now.”

Mr. Leonid continues.

“It is our view of the law, any questions with respect to what effects such articles and stories had on the jury, if there is a showing that juror saw the article or read the story are immaterial and irrelevant because we think once that showing is made then there has been an intrusion and we want the record to show, we would object.

We would object to questions with respect to the effect of such articles upon the mind of the jury and because it is our view that they should be limited to whether they saw the articles or heard about it.”

The Court “I understand your views.”

Mr. Leonid “Again, Your Honor just to state our position and then Your Honor can rule.

We think there are two main questions here.

Did they see the articles or hear the radio report to which we are clearly have no objection that we urge Your Honor to inquire into?

And second one — secondly, the question Your Honor suggested the effect of such a reading or such a hearing.

That question we think is immaterial and irrelevant and it is that question that we would make an objection to.”

The Court “Just a moment, do you mean you don’t want me to ask what effect it had?

You don’t wish me to invite them to say whether any of them feel if they have heard or read something, they can’t go ahead with open mind.”

Mr. Leonid “We think as a matter of law, there is only one result that could flow from anybody having read or seen these articles.

We think if there is a factual showing of this kind of an intrusion that the other question is immaterial and so forth.”

It’s — it’s perfectly clear that the defense counsel were telling the Court that they didn’t want the other question.

Therefore, the Government insists upon the statement that it has in its brief that — that — that the defense insisted upon a mistrial if anyone saw this material without any inquiry as to what effect it had upon them.

And before I sit down, I’d like to call the attention to Mr. Justice Harlan’s opinion in the Flynn case where this very same document was involved.

And as he pointed out there, the fact that — now if — if there is if — there’s one — there’s this one difference between the Flynn case and this case.

The jury were questioned as to whether or not they’ve seen this article.

However, as Mr. Justice Harlan points out in the Flynn case, they were not questioned as to whether or not they have seen any of the newspaper publicity tackled with it.

But Mr. Justice Harlan points out that that is unimportant because of the fact of the explicit and clear instructions that the jury got all through the trial and in — and in the charge that they were to consider the — their verdict solely upon what was adduced in the courtroom and nothing that they heard outside.

And so that reason, we think, that the — the — that the Flynn decision on this point is in all force on this point and we suggest — submit that there is no merit whatever in the contention that a mistrial should have been declared on this matter.