Full opinion text
HARLAN, Circuit Judge. The thirteen defendants who appeal have been convicted of conspiring to violate the Smith Act by wilfully advocating and teaching the duty and necessity of overthrowing and destroying the Government of the United States by force and violence. The period of the conspiracy charged was from April 1, 1945 to June 20, 1951, the date of the filing of the indictment. The indictment also charged the defendants with conspiring to organize the Communist Party of the United States, in which each had held various official positions, as an instrumentality to carry on such teaching and advocacy, but the trial Court held that part of the indictment barred by the statute of limitations. The trial, which was before Judge Dimock and a jury, lasted over eight months, and was preceded by a challenge to the petit jury array which was overruled by Judge Dimock after hearings extending over more than two weeks. The defendants also separately appeal from the order overruling that challenge. Both appeals were argued together, and are so considered here. The conspiracy charged was in substance the same as the one passed upon by this Court and the Supreme Court in United States v. Dennis, 2 Cir., 1950, 183 F.2d 201, affirmed 1951, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, the Dennis defendants being named in this indictment as co-conspirators, and as might be expected the Government’s evidence paralleled very closely that in the Dennis trial. As the appellants on this appeal do not directly challenge the sufficiency of the evidence as a whole to sustain their convictions, we need not consider the evidence in detail, save to say that we are satisfied that it was ample both to require the submission of the case to the jury and to sustain its verdict. Stated broadly, the points for reversal urged by the appellants relate to (1) asserted error in the Court’s charge to the jury, (2) the inadmissibility of certain evidence, (3) the insufficiency of the evidence to establish a “clear and present danger,” (4) the misconduct of some of the trial jurors, (5) the claim that the atmosphere in which the defendants were tried made a fair trial impossible, and (6) the denial of their challenge to the petit jury array. We proceed to consider these points in order. 1. The Court’s Charge The primary attack on the Court’s charge is that over the timely objection of the defendants the jury was permitted to consider on the issue of a particular defendant’s intent to cause the violent overthrow of the Government the acts and declarations of co-conspirators during the course of the alleged conspiracy, without proof that they had been authorized or approved by such defendant. The claim on this branch of the argument is not that the Government failed prima facie either to establish the alleged conspiracy or to connect any of the appellants with it by competent evidence, but rather that the ordinary rule admitting against all defendants the acts and declarations of co-conspirators in furtherance of a common illegal enterprise, and within its contemplation, does not apply at least in full sweep, to a conspiracy to violate the Smith Act. The appellants frankly recognize their contention to be a novel one, and it seems to be implicit in their argument that the proposition is claimed to have validity only in the case of a criminal statute which, absent the requirement of a specific intent, would be unconstitutional for indefiniteness. The foundation stone of their position appears to be that the constitutional application of § 2(a) (1) of the Smith Act is dependent on the showing of a specific intent to cause the overthrow of the Government by force or violence through advocating and teaching the duty and necessity of such overthrow. It is said the proof of this intent is therefore clothed with a constitutional and not merely statutory quality, such that it can be shown only by the conduct and declarations of the defendant himself, or those of others which he has authorized or knowingly ratified, as in the instance of substantive crimes and derelictions such as were involved in Gordon v. United States, 10 Cir., 1953, 203 F.2d 248, reversed and remanded to District Court, 1954, 347 U.S. 909, 74 S.Ct. 473; United States v. Hall, 2 Cir., 1952, 198 F.2d 726, opinion of Judge Biggs, concurring in part, dissenting in part, certiorari denied 345 U.S. 905, 73 S.Ct. 641, 97 L.Ed. 1341; and In re Cary, D.C.S.D.N.Y.1882, 10 F. 622. The appellants’ argument encounters at the threshold an obstacle in the Dennis case, in which, as appellants seem to recognize, we found the Smith Act constitutional independently of its intent provisions. 183 F.2d at page 214. Appellants say, however, that the opinion of Chief Justice Vinson and those of Justices Frankfurter and Jackson, together representing the thinking of a majority of the Supreme Court, did not reflect the views expressed by Judge Learned Hand in this respect. We are unable to read those opinions as the appellants would have us do. On the contrary, we think that the Chief Justice’s opinion simply expressed in different language what Judge Hand had stated. And it is clear that Justice Frankfurter’s statement at 341 U.S. 551, 71 S.Ct. 888— “To make validity of legislation depend on judicial reading of events still in the womb of time — a forecast, that is, of the outcome of forces at best appreciated only with knowledge of the topmost secrets of nations — is to charge the judiciary with duties beyond its equipment”- — was not related to any significance which he considered the intent requirement to have upon the constitutionality of the Smith Act, but solely to his criticism of the applicability of the “clear and present danger” rule to a statute such as this. The same is true of the following statement of Justice Jackson at 341 U.S. 570, 71 S.Ct. 898, which appellants also quote in their brief: “If we must decide that this Act and its application are constitutional only if we are convinced that petitioner’s conduct creates a ‘clear and present danger’ of violent overthrow, we must appraise imponderables, including international and national phenomena which baffle the best informed foreign offices and our most experienced politicians. * * * The judicial process simply is not adequate to a trial of such far-flung issues. The answers given would reflect our own political predilections and nothing more.” As we read their concurring opinions Justices Frankfurter and Jackson, for somewhat different reasons, found the Smith Act constitutional without reading into it the ‘clear and present danger’ rule, and independently of its intent requirement. But even were we to accept the appellants’ premise, we think untenable .the idea that the usual conspiracy rule applicable to “a run-of-the-mine conspiracy case” — to use a phrase of the appellants — should not be applied to a conspiracy to teach and advocate the necessity of the violent overthrow of our Government. In the case of so serious a crime as treason Justice Jackson in Cramer v. United States, 1945, 325 U.S. 1, 65 S.Ct. 918, 89 L.Ed. 1441, took occasion to repudiate the notion that ordinary rules can be made to vary dependent on the gravity of the offense. In the same type of case our concepts do not recognize one kind of law for one case and another kind for another. Indeed, in Dennis we applied ordinary conspiracy rules to a Smith Act conspiracy. 183 F.2d at page 230. It is indeed true, as the appellants assert, that under criminal statutes involving proof of a specific intent a person may not be convicted simply on the basis of an “imputed” intent. He himself must be shown to have had the requisite intent. But it does not follow from this that proof of such an intent is limited to that particular person’s own acts and declarations, whether the prosecution be for a substantive crime or for the crime of conspiracy. For as Justice Jackson said in Cramer v. United States, 1945, 325 U.S. 1, 32-33, 65 S.Ct. 918, 934: “Actions of the accused are set in time and place in many relationships. Environment illuminates the meaning of acts, as context does that of words. What a man is up to may be clear from considering his bare acts by'themselves; often it is made clear when we know the reciprocity and sequence of his acts with those of others, the interchange between him and another, the give and take of the situation." So here, the relationships of the defendants and of others .acting in concert with them; one with another, the defendants’ positions of responsibility in the Communist Party, their activities in carrying forward the objectives of the party, and the nature of those objectives were all matters properly to be considered upon the “intent” of any particular defendant. And the declarations of other co-conspirators, in furtherance of the conspiracy and within its purview, stand on no different footing. To permit such declarations to be considered on the issue of the “intent” of a particular defendant, a prima, facie case of conspiracy among the appellants and others having been made out, was not to impute to such defendant the intent of others, but was simply to include such declarations among the circumstances which the jury might consider in determining the individual intent of that particular defendant. This was entirely proper. “Intent” as well as any other element of a crime may be proved by circumstantial evidence. United States v. Pierce, D.C.1917, 245 F. 878, affirmed 1920, 252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 542; Nosowitz v. United States, 2 Cir., 1922, 282 F. 575. And the rule admitting acts and declarations of co-conspirators in furtherance of the conspiracy against all defendants applies equally to motive and intent as to other issues. See Wiborg v. United States, 1896, 163 U.S. 632, 658, 16 S.Ct. 1127, 1197, 41 L.Ed. 289; Pinkerton v. United States, 1946, 328 U.S. 640, 647, 66 S.Ct. 1180, 90 L.Ed. 1489. The appellants also contend, in effect, that the ordinary conspiracy rule — requiring a showing of conspiracy, including in this instance the requisite unlawful intent, to be made against each defendant, before the acts and declarations of third parties are admissible against him — was not observed by the trial Judge. They say that it appears from the charge that the Court considered that “participation” in the conspiracy did not involve showing that a defendant intended to cause the violent overthrow of the Government, but rather that “intent” was a separate issue from “participation.” The appellants claim that the charge required only “participation” to be shown on the basis solely of the acts and declarations of the particular defendant. Hence it is argued that on the issue of intent the jury was permitted to consider the acts and declarations of others against a particular defendant before finding that such defendant was a conspirator on the basis of his own acts and declarations. This contention is based on the italicized clause in the following part of the charge: “As I have just reminded you, during the course of the trial certain evidence was received concerning acts, declarations, and teachings of various of the defendants which I carefully instructed you to consider only on the question of the intent of the defendant involved. This was because they took place prior to the earliest date with respect to which there was any evidence of conspiracy. As I have told you, you must be satisfied beyond a reasonable doubt that the defendants wilfully conspired, during the period beginning not earlier than May 1945 and ending on June 20, 1951, to accomplish the objective charged in the indictment which I have previously mentioned. The evidence which has been received relating to the period prior to the alleged conspiracy should be considered by you only in determining the intent of the defendants concerned. You may not consider such evidence in determining the intent of any other defendant to commit the offense charged unless you find that the statement or act concerned was made or done by the direction or authority or with the approval of such other defendant. All of the rest of the evidence in the case, however, you may consider against all defendants except as I have just instructed you, in determining the question of the initial participation of a particular defendant in the alleged conspiracy you cannot consider statements and declarations alleged to have been made by persons other than that defendant.” (Italics supplied.) We do not think the Court’s charge — even within the four corners of the passage just quoted — is reasonably susceptible of the interpretation which the appellants endeavor to place upon it. Time and again Judge Dimock made it clear that an intent to cause the overthrow of the Government by violence was an essential ingredient of a violation of the Smith Act. And he instructed the jury that the act of conspiring to commit that offense “knowingly or wilfully” included such an intent. It having been made clear beyond any doubt that there could be no unlawful conspiracy without an intent on the part of its members to cause the overthrow of the Government by force, we do not think that any part of the charge can properly be read as meaning that a defendant could be found to be a “participant” in the conspiracy charged without possessing such an intent. And since the Court had explicitly charged that “participation” could be found only on the basis of each defendant’s own conduct, it inevitably followed that the initial intent of such defendant must also be found on the same basis. We conclude that there was no error in the charge. 2. Lautner’s Testimony The Government called Lautner, a former Chairman of the New York State Review Commission of the Communist Party, to testify, among other things, to the circumstances of his expulsion from the Party. The substance of Lautner’s testimony, relative to his expulsion, was this: Lautner was under suspicion of cooperating with agencies of the United States Government. In December 1949 Louis Weinstock, one of the defendants, suggested to Lautner that he obtain “a one-way ticket to Hungary.” Weinstock told him to speak to Robert G. Thompson, New York State Chairman of the Party and a member of its National Committee, who advised him to apply for a passport. When a passport was denied by the authorities, Lautner so informed Weinstock and one Jack Kling, the National Treasurer of the Communist Party, and there followed a meeting attended by Kling, Hal Simon and William Norman (indicted in this case but not apprehended), at which Norman told Lautner that the National Committee had asked for his transfer from the New York State organization so as to permit him to continue underground activities in the Midwest. Kling told Lautner to meet him in Cleveland. When Lautner met Kling at Cleveland he was taken to the cellar of a house where before a group, which included the Labor Secretary of the Communist Party in Ohio and a member of the Michigan Secretariat of the Party, he was made to undress and with a pistol at his head, accompanied by such accouterments as a tape recording machine, a device stated to be a “lie detector,” several pieces of rubber hose and some butcher knives, accused of being an “enemy agent” and forced to write out a statement that he had been given “a fair and impartial hearing.” Lautner was then permitted to leave with instructions to meet the group on the following day at a Cleveland cafeteria where the “hearing” would be continued. He reported there the next day, but no one showed up. Lautner further testified that when he returned to New York a day or two later he read in the Daily Worker for January 17, 1950 (which was received in evidence without objection) the following item: The National Review Commission of the Communist Party has been conducting an investigation to determine how the FBI agents exposed in the Foley Square trial [presumably the Dennis case] penetrated and functioned in the ranks of the Party * * * In view of the already established facts, the National Review Commission [the top disciplinary organ of the Party] approves the recommendation of the sub-committee which examined the case of John Lautner and hereby expels him from the-Communist Party as a traitor and enemy of the working class.” Lautner testified that he then wrote a letter to the defendant Trachtenberg,, the Chairman of the National Review Commission, appealing or protesting hi® expulsion, but that he never received a reply. The appellants’ contentions as to this testimony raise two questions: (1) was it admissible, and if so; (2) was its probative value so far outweighed by its tendency to inflame that the trial Judge should have excluded it, in whole or in part, in the exercise of a sound discretion? We have no doubt as to the relevancy of the testimony. Lautner’s expulsion tended to prove two theses advanced by the prosecution in support of its contention that an objective of the Communist Party was the forcible overthrow of the Government: first, that the Party functioned not as an ordinary political party but in a covert, deceptive, violent, and highly disciplined manner, such as might be expected of a revolutionary organization; and second, that although the provisions of the Party Constitution seemed to belie a revolutionary purpose, the Constitution was not in practice faithfully observed — the Government’s so-called “Aesopian” theory. That threats of force were used against Lautner with the evident purpose of wrenching from him a confession of collaboration with federal intelligence authorities, that he was forced to sign a paper which would make it falsely appear that his expulsion had been after a fair hearing, and that suggestions were made that he might be done away with altogether, all tended to prove the Government’s first thesis. That the Party constitutional provision (Art. VIII, See. 7) providing that “all persons concerned in disciplinary cases shall have the right to appeal', bring witnesses, and testify” was violated, and not forgetfully, but deliberately, as shown by the enforced execution of the false statement, tended to establish the Government’s second — Aesopian — thesis. For example, the defendants in support of their basic position, that Party policy was not revolutionary, relied heavily on Article IX, Section 2 of the Party Constitution providing: “Adherence to or participation in the activities of any clique, group, circle, faction or party which conspires or acts to subvert, undermine, weaken or overthrow any or all institutions of American democracy, whereby the majority of the American people can maintain their right to determine their destinies in any degree, shall be punished by immediate expulsion.” To counter the defendants’ assertion, the prosecution called witnesses to show that this provision of the Constitution ivas understood by those in positions of responsibility in the councils of the Party as “meaningless.” True, proof that the provision granting the right to a hearing in disciplinary cases did not mean what it said would not prove that Article IX, Section 2 was also a “cover.” But we do not think that the Government in proving its general thesis that the Party’s Constitution was used generally as a smoke screen could not show all instances in which theory and practice differed. Indeed the Government was properly permitted to prove, without contest on these appeals, other instances where provisions of the Party’s Constitution had not been followed. We are not impressed with the argument that Lautner’s expulsion had no rational tendency to prove a purpose to disregard this provision of the Party Constitution since those who participated in the episode were already convinced that Lautner was a party renegade. That the individuals concerned may have considered justified their disregard of the Constitution does not matter. It is plain that they chose to disregard it. Nor are we convinced by the appellants’ argument that the Lautner testimony was irrelevant because it did not make more plausible than otherwise the theses the Government was attempting to establish. The Lautner testimony was offered as but one of several elements of evidence tending to show the Party’s methods of operation and the misleading nature of the Party Constitution. If all these elements, taken together, permit the inference of the Government’s theses, then the individual elements are not to be barred as irrelevant. Furthermore, we think that Lautner’s expulsion may be regarded as relevant to proving an act in furtherance of the conspiracy charged. True, the objects of the alleged conspiracy were to teach and advocate the duty and necessity of the violent overthrow of the Government. The effectuation of these objects, howevez", z’equires a policy of maintaining a corps of highly disciplined Party workers, above suspicion of collaboration with American intelligence authorities. Lautner’s expulsion because he was so suspected was indicative of such a policy, which would have furthered the objects of the conspiracy charged. Because the testimony coneezming the Cleveland episode involved conduct taking place in the presence, and with acquiescence, of Kling, a co-conspirator, that testimony was admissible against all defendants. The appellants further assert that Lautner’s testimony was inadmissible since it concerned acts not authorized by the defendants nor shown to be acts of co-conspirators in furtherance of the objects of the conspiracy. This argument has in part been answered above. In addition, it might be observed that various facets of the episode, blanketing the entire incident, were brought home to three defendants named in the indictment and to three persons whom the jury was entitled to find were co-conspirators. Thus Weinstoclt and Norman (defendants) and Thompson, Simon and Kling (co-conspirators) were connected with the initial steps toward ridding the Party of Lautner; Kling, with the Cleveland “hearing”; and Trachtenberg (a defendant) with the attempted review of the expulsion. This was ample to make the testimony admissible against all the defendants on trial. Furthermore, to the extent that the episode bore upon the objectives and methods of operation of the Communist Party we think that it was unnecessary for the Government to show that any of the defendants knew of or had authorized the specific actions involved. Because of their official positions in the Party, the defendants are presumed to have endorsed the Party’s objectives and methods. In its attempt to bring out the nature of these objectives and methods the Government should not be limited to showing actions known to or authorized by the defendants, any more than the defendants should be similarly limited in introducing evidence of contrary objectives and methods. We are told that this same evidence, at least as to the events taking place in Cleveland, has been excluded by a number of District Courts in other Smith Act trials. We have not been apprised as to the reasoning of the trial Judges who so decided, but be that as it may we are satisfied that in the case before us Judge Dimock correctly ruled that this evidence was admissible. There remains the question of whether the trial Judge abused his discretion in nevertheless not excluding the evidence. We think not. While the episode to be sure was an unsavory one there is no blinking the fact that this was one of the prime reasons for its relevance on the issues to which it was directed. The situation here is quite unlike United States v. Krulewitch, 2 Cir., 1944, 145 F.2d 76, 156 A.L.R. 337 where a part of the evidence complained of had insignificant probative value on the issues to be resolved. Appellants assert that the Lautner episode must have had a “devastating” impact with the jury. But even if this be so — although we find no such indication in the record — we would not consider that the trial Judge had so far overweighted the probative value of the evidence, compared with any tendency it might have to inflame, as to constitute an abuse of discretion. See United States v. Grayson, 2 Cir., 1948, 166 F.2d 863. 3. Clear and Present Danger In the Court below defendants moved to have the issue as to whether the conspiracy charged constituted a “clear and present danger” submitted to the jury, or alternatively, for a hearing before the Court on that question. Since both this Court and the Supreme Court have already held in Dennis, 183 F.2d at pages 215-216 and 341 U.S. at pages 511-515, 71 S.Ct. at pages 868-870, that this issue is one of law for the Court the appellants do not press the denials of these motions here, but argue rather that the facts in the record and those which the Court judicially noticed do not support its conclusion that a “clear and present danger” existed. Their contention is that the concept of “clear and present danger” involved determination of two questions: “(1) What circumstances, if any, did the appellants and their alleged co-conspirators contemplate or teach as the circumstances in which an attempt at such overthrow might be made? (2) Was there a probability at the time of the indictment that such circumstances would occur?” Appellants’ argument is addressed almost entirely to the first of these supposed factors, the contention being that the trial Judge, adopting the prosecution’s claim, based his finding that a “clear and present danger” existed on the premise that the Communist thesis is that “a time of national crisis * * * such as a severe economic depression or a war” is the time to strike down the Government, and that there is no evidence that such was ever the Marxist-Leninist party line. On the contrary, it is said that, especially since 1935, the Communist doctrine has been that “in countries which provide channels for the peaceful expression and effectuation of the popular will, the working class and its allies can and should seek to win Governmental power” only by peaceful means, and that the most that can be claimed as to Communist doctrine at any time is that revolutionary overthrow of existing Governments cannot be accomplished, absent the existence of many other “objective factors” in addition to mere economic depression or war. The branch of the argument based upon the contentions that Communist doctrine, at least in its more modem manifestations, is non-revolutionary is clearly foreclosed by the jury’s verdict. The Court instructed the jury that in order to find a defendant guilty “ * * * you must further find that it was the intent of the defendant to achieve this goal of the overthrow or destruction of the Government of the United States by force and violence as speedily as circumstances would permit it to be achieved.” Thus, we must take it that the jury found, on adequate evidence, that each convicted defendant intended to attempt the violent overthrow of the Government at the first propitious moment. The second branch of the argument rests upon a misconception of what this Court and the Supreme Court have held as to the meaning of “clear and present danger,” and as to what the lower Court found in that respect. “Clear and present danger” does not mean, as appellants’ argument seems to suggest, that the trial Court must find that the alleged conspirators have agreed upon a precise set of circumstances under which they will attempt to strike down the Government, and, further, the existence or likely existence of those particular circumstances. In the very nature of things those who advocate the violent overthrow of the Government cannot themselves foresee the future so clearly as to forecast the particular conditions under which it may seem to them propitious to strike at the established authority. Indeed, the appellants themselves argue in connection with their assertion that Communism has cast aside its revolutionary doctrines that the Marxist-Leninist teachings are flexible enough so as to be adaptable to changing sets of circumstances. Where a conspiracy to destroy the Government by force or violence is involved, we think that the “clear and present danger” concept, as defined in Dennis, 183 F.2d at page 212, 341 U.S. at page 510, 71 S.Ct. at pages 867, 868, connotes no more than that the setting in which the defendants have conspired is such as to lead reasonably to the conclusion that their teachings may result in an attempt at overthrow. This is the basis on which the trial Judge proceeded, and we think rightly. His finding of a “clear and present danger” was based not on a determination that Communist doctrine envisaged a particular situation as propitious for an attempt at forceful overthrow of the Government and that such a situation was upon us, but rested rather on the premise, confirmed by the jury’s verdict, that the defendants sought to bring about such overthrow of the Government “as speedily as circumstances will permit,” and on a combination of factors from which he estimated the probability of some crisis or extreme tension which might present the awaited opportunity. Those factors, as well as the procedures followed by Judge Dimock, were the very ones considered by this Court and the Supreme Court in upholding the trial Court’s finding of a “clear and present danger” in 1948 in Dennis, brought down to date. And if the danger was clear and present in 1948, it can hardly be thought to have been less in 1951, when the Korean conflict was raging and our relations with the Communist world had moved from cold to hot war. 4. Alleged Misconduct of Jurors On December 11, 1952, all the evidence in the case being in, one Harold I. Cammer, a former attorney for the defendants in this litigation, delivered to Judge Dimock a letter from a Mrs. Julia van Dernoot, a member of the Bar, regarding certain statements alleged to have been made by Mrs. Sybil Kane, juror No. 12 in the case, at a Canasta game at her home some two or three weeks before. In that letter, printed in the margin, Mrs. van Dernoot stated that Mrs. Kane had said that the jurors “felt that the defendants were all Marxists and that Marxists ‘certainly all wanted to overthrow the Government by force.’ She said, ‘We know all about Marxism because we listened to the testimony during the first two months.’ ” This led to an in camera interrogation, under oath, by Judge Dimock of Mrs., van Dernoot, Mrs. Kane, the other sitting and alternate jurors, and the three other women present at the Canasta party. The stenographic minutes of each interrogation were made available to counsel who were given opportunity to elicit through the Court, or (except as to the jurors) directly when they requested, further information from each person questioned. The upshot of this inquiry was this: Mrs. van Dernoot’s letter' was substantially diluted by her testimony and her animus towards Mrs. Kane; and the circumstances of how this letter came into being were far from satisfactorily explained. Mrs. Kane denied all except that part of the conversation relating to the jurors’ little gift to the bailiff, her interest in being on the jury and her pleasant social relations with its members. The other eleven sitting jurors and the three remaining alternates each denied that he or she had ever said in the jury room or to any other juror that all Marxists want to overthrow the Government by force or, except as to one who was not asked the question, heard any of the other thirteen say so. As to Mrs. Kane: One juror was not questioned about her. The remaining thirteen stated that they had never heard Mrs. Kane say that all Marxists want to overthrow the Government by force, and nine denied ever hearing her make any statement to the effect that she had made up her mind about the case. As to the other four jurors, one said that Mrs. Kane had told him that she had made up her mind and that other jurors had too; another, that Mrs. Kane gave the impression “that perhaps she was flopping now to one side and the next day to the other”; a third, described Mrs. Kane’s remarks as “spontaneous chitchat” such as “that was important this morning” or “that was interesting”; and the fourth, that Mrs. Kane had said she was open-minded and that “she would have to go through everything, all the records again. She has passed that remark, and she has never, never said in my presence, that her mind has been made up or that she is of an opinion.” Two of the three women at the Canasta party contributed nothing. The third stated that Mrs. Kane had said that Communists believed in the overthrow of the Government, without saying by what means, that the issue in the case was not whether the defendants were Communists but “they were being tried for the 'overthrow of the Government,” and that Mrs. Kane or Mrs. van Dernoot had said that “lots of people were Communists but did not believe in overthrowing the Government.” This woman further stated that she had never heard Mrs. Kane discuss the views of the jurors. On this state of the record the defendants moved for a mistrial. The trial Judge denied the motion, but held that Mrs. Kane should be replaced on the jury by Mrs. Miller, one of the alternate jurors. In ruling thus, Judge Dimock stated and found: “The question of fact that is raised is a [sic] very difficult to decide. Certainly, if it were necessary to prove Mrs. Kane’s guilt beyond a reasonable doubt, she would have to be acquitted. I have great difficulty even in saying that there is a preponderance of the evidence against her. Mrs. van Dernoot, despite the fact that she volunteered to aid in the administration of justice, seemed to me to be a very unreliable witness. I thought that she deliberately evaded questions. I thought that she evaded making an intelligent explanation of how she happened to go to an attorney of record in a prior phase of this litigation when she decided that she wanted to know about Marxism. It was obvious that she had great animus against Mrs. Kane and it was significant that in so far as she was corroborated by one of the members of the card-playing group, that the person who corroborated her was evidently her companion in a feud that existed in the group between those two and the other three. “Nothing that Mrs. Kane said indicated on its face that she is not telling the truth, and certainly it cannot be said that Mrs. Kane’s conduct even on [sic] the face of everything you have said against her was purposeful one way or the other. If that story is believed, she has been very foolish, but she has not gone on record in favor of one side or the other. Indeed, one story is that she flopped from side to side, and it seems to be undisputed that when she said that she had made up her mind, if she did say so, she did not say on which side she had made it up. “Nevertheless, what has been cited to me as the law is undoubtedly sound, that courts must avoid the appearance of evil in a case of this court [sic], and it seems to me like good law although I had never seen it before, that where a juror does communicate with others about the case, the presumption is that there has been some prejudice. I am not perfectly sure that it is proved beyond a reasonable doubt or even by a preponderance of the evidence that Mrs. Kane communicated with others about the case. It is true she did tell of the social life of the jurors, and that she conceded, but, nevertheless, hard as it may be on her, I feel that the defendants are entitled to have even the suspicion of prejudice removed from the jury, and while I deny the motion for mistrial, I shall excuse Mrs. Kane. “I would like to say with respect to my denial of the mistrial that I was very favorably impressed in examining the jurors with the attitude that they had taken toward the case. I was impressed with the sincerity and truth of all of them, and I really regarded it as remarkable that in a trial of this length, where people had been so closely associated for so many days, weeks and months, that so little could be brought out with respect to communication even among those people about the case that was being tried before them. It seems to me that with the exception, perhaps, of Mrs. Kane, they have gone more than we ought humanly to expect toward obeying to the letter the Court’s instruction that the case should not be discussed even among themselves.” On the following morning, December 18, Mrs. Kaufman, the attorney for two of the defendants, presented the Court with an affidavit, quoted in the margin, setting forth a telephone call that morning from Mrs. Kane in which she offered to inform the Court of the names of four jurors whom she claimed had expressed strong views adverse to the defendants’ side of the case. Upon this affidavit the defendants then moved for a further investigation of the jury, that Mrs. Kane, whom they had subpoenaed, be recalled to testify, and for a reconsideration of the motion for a mistrial. These motions were all denied by Judge Dimock, with the following statement: “As I think, all who were present noticed Mrs. Kane is a highly excitable, sensitive, temperamental woman, and on that account rather than having her hear of the fact that she had been excused from the jury from unsympathetic sources, I probably mistakenly telephoned to her immediately after I left the bench last night. I was unsuccessful in softening the blow, I should say, because the result was to leave Mrs. Kane in a highly excitable and disturbed state. I cannot but think that the statement that she made this morning to Mrs. Kaufman was made in exactly the same circumstances as her conversation with me last night and if it was made in those circumstances and with her in the same frame of mind, I should not be inclined to place much stress upon it. “The most important thing in the situation, though, is the examination of the jurors which has already been made and which has made upon me the deep impression of the faithfulness, impartiality and absolute probity of every member that is left on that jury. “The extraordinary circumstances of this case have already led me to go to the verge of what ought to be done in upsetting and diverting the regular course of the administration of justice which has been found so important in getting just results. I hesitated and considered a long time and with a great deal of concern whether the jurors should be interrogated at all. I did conduct the intei-rogation with the result that I have described and I say again that my disposition is strongly against any further diversion of the ordinary course of the path of the administration of justice.” We are now asked to hold that the motions for a mistrial, or in any event those for a further investigation of the jury and the recalling of Mrs. Kane, should have beep granted. All of these matters were for the trial Court’s discretion which, unless we find it clearly abused, we should not disturb. Lewis v. United States, 1 Cir., 1924, 295 F. 441, certiorari denied 265 U.S. 594, 44 S.Ct. 636, 68 L.Ed. 1197. Especially is this so on a matter of such delicacy as that involving the retention or discharge of a sitting juror, in which right judgment depends so heavily upon the impressions formed from direct contact. Reynolds v. United States, 1878, 98 U.S. 145, 155-157, 25 L.Ed. 244. We have scrutinized the record with care and are satisfied that there was no such abuse. The most that can be said from what is before us is, we think, that it was shown that one member of the jury had acted indiscreetly — even though we find it difficult to regard her conduct as anything more than an innocent, and, in a case of such long duration and great public interest, excusable lapse. In excusing Mrs. Kane from further service we think the trial Judge certainly went as far as the situation demanded. Even if we apply the rule that a juror’s expressions to third persons about the case on which he is sitting give rise to a presumption of prejudice to the defendants, that presumption is rebuttable. See United States v. Sorcey, 7 Cir., 1945, 151 F.2d 899, certiorari denied 327 U.S. 794, 66 S.Ct. 821, 90 L.Ed. 1021; Wheaton v. United States, 8 Cir., 1943, 133 F.2d 522, 527. And in the present instance such a presumption, if any, was fully overcome by the weight of the evidence which led Judge Dimock twice to remark upon the deep impression he had formed from his interrogations of the jurors as to their “faithfulness, impartiality and absolute probity.” Conversely, we think that the entire episode must have burned into the minds of the jury the defendants’ right to an impartial trial, which could hardly have failed to benefit the defense. We are also of the opinion that the trial Court did not abuse its discretion in refusing to reopen the investigation or to reconsider the motion for a new trial. These applications were based upon nothing more than a reiteration of the same assertions as to some of the jurors — a matter which had already been adequately investigated. 5. Denial of Motions for Continuance and Mistrial Prior to the trial the 16 defendants who were then in the case moved for a 90-day continuance and, alternatively, that each defendant be allowed 10 peremptory challenges, being a total of 150 more than the number permitted by Rule 24(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., to the defendants as a whole in a case of this kind. These motions were denied except to the extent of granting the defendants jointly 12 additional peremptory challenges, or 22 in all. During the trial the defendants also made several motions for a mistrial, all of which were denied. The denials of the motions for a continuance and a mistrial are claimed to be reversible error. The motions for a continuance were based on the ground that numerous utterances, writings, and activities of public and private agencies, officials and individuals over a period of years prior to the indictment had brought about such a spirit of antagonism and hostility towards Communism throughout the country as to make impossible an impartial trial of these defendants. The motions for mistrial (except those based on the alleged misconduct of the jurors, which we have already considered) were also bottomed on the same sort of factors, brought down to date, of which three out-of-courtroom episodes occurring during the trial are especially stressed here. These were (1) the issuance of a pamphlet on June 25,1952 by the Senate Subcommittee on Internal Security undertaking to document the thesis that one of objects of the Communist Party in this country is to cause the overthrow of the Government by force and violence; (2) a presentment by a Southern District Grand Jury suggesting that the National Labor Relations Board revoke the certification of certain labor unions, some of whose officials had pleaded their constitutional privilege against self-incrimination before the Grand Jury; and (8) the fact that a Senate Subcommittee on Internal Security had conducted hearings in this Courthouse, while this trial was in progress, on the so-called infiltration of Communists into the United Nations. Common to the appellants’ complaint as to the denial of both sets of motions is their basic contention that the climate of public opinion, induced by Governmental and private activities, was such that any jury chosen to try them must have entered the jury box with at least a predisposition to regard the Communist Party as an illegal revolutionary conspiracy, which was one of the central issues to be tried. We deal first with the denial of the motions for a continuance of the trial. The voluminous papers upon which those motions were based really set forth no more than what might otherwise have been judicially noticed, namely that the vast majority of the American people regard Communism with deep-rooted antipathy, and that as events have unfolded since the close of World War II many people have come more and more to regard Communism as committed to the overthrow of our Government by force or violence, a belief which has found expression in the enactment of the Internal Security Act of 1950, 64 Stat. 987, 50 U.S.C.A. § 781 et seq. and more recently, a statute purporting to outlaw the Commuunist Party in this country. See Communist Control Act of 1954, Public Law 637, 83d Congress. 50 U.S.C.A. § 841 et seq. But granting all this, are we now to say that a member of the Communist Party charged with advocating the overthrow of the Government by force or violence, or with conspiring to that end, may not be tried until general opinion in this country about Communism has changed or abated ? To this we think there can be but one answer, which was put by Judge Hand in the Dennis case, 183 F.2d at page 226, in the following language: “Next, it is urged that it was impossible in any event to get an impartial jury because of the heated public feeling against Communists. That such feeling did exist among many persons — probably a large majority — is indeed true; but there was no reason to suppose that it would subside by any delay which would not put off the trial indefinitely. The choice was between using the best means available to secure an impartial jury and letting the prosecution lapse. It was not as though the prejudice had been local, so that it could be cured by removal to another district; it was not as though it were temporary, so that there was any reasonable hope that with a reasonable continuance it would fade. Indeed, as it turns out, it is probable that the trial was at a less unpropitious time than any that has succeeded it, or is likely to follow. Certainly we must spare no effort to secure an impartial panel; but those who may have in fact committed a crime cannot secure immunity because it is possible that the jurors who try them may not be exempt from the general feelings prevalent in the society in which they live; we must do as best we can with the means we have. In 1943 we denied a much more plausible argument of a kind not altogether dissimilar in United States v. Von Clemm, 2 Cir., 136 F.2d 968, 971: ‘Error is assigned to the court’s refusal to postpone the trial until after termination of the war. The argument proceeds upon the assumption that evidence may be available in Germany which would be favorable to the accused if it could be found and produced. The recognition of such a doctrine would mean that every violator of our laws * * * would be immune from prosecution during time of war by merely asserting that witnesses abroad could prove his innocence of the charge.’ ” Indeed, to hold otherwise would be tantamount to judicial proscription of the Smith Act, as applicable to members of the Communist Party, at least so- long as the Internal Security Act of 1950 and the Communist Control Act of 1954 are on the books, since those statutes, which must presumably be taken as reflecting prevailing public opinion, find the Communist Party in the United States to be a conspiratorial instrument dedicated to the overthrow of the Government, if necessary by force and violence. The motions for mistrial stand on no different footing. Except for the three episodes already mentioned, the motions were based on the same sort of considerations as the earlier motions for a continuance. Of the three other episodes, the Grand Jury presentment did not refer in any manner to this case nor to any of the defendants on trial, and there is no suggestion that the Senate Internal Security Subcommittee’s investigation as to United Nations personnel was in any way concerned with this case or with any of these defendants. While the Subcommittee’s pamphlet on the revolutionary objectives of the Communist Party did refer by name to two of the defendants in this case, to one person named in the indictment as a co-conspirator, and to certain of their writings which the Government used as part of its evidence, the sole reference to the case itself or to the connection of any of the defendants with it is the statement that the defendant Bittelman was “presently under indictment in New York, charged with a violation of the Smith Act of 1940.” When the publication of this pamphlet was called to the attention of the trial Judge he inquired whether any of the members of the jury had read it and all replied that they had not. See United States v. Weber, 2 Cir., 1952, 197 F.2d 237, 239, certiorari denied 344 U.S. 834, 73 S.Ct. 42, 97 L.Ed. 649. We conclude that there is nothing in any of these episodes which added to or altered the character of the problem with which the Court had already dealt in denying the motions for a continuance. We find nothing in Delaney v. United States, 1 Cir., 1952, 199 F.2d 107, or in United States v. Rosenberg, 2 Cir., 1952, 200 F.2d 666 which militates against these conclusions. We may dismiss Rosenberg simply with the statement that what was criticized there was the prosecution’s issuance during the trial of a press release announcing the indictment for perjury of a prospective Government witness who had declined to corroborate the testimony of one of the Government’s principal witnesses at the trial. Equally foreign to the issue here are such cases as United States v. Andolschek, 2 Cir., 1944, 142 F.2d 503 holding that the Government may not withhold from a defendant otherwise privileged documents which are directly germane to the charge against him. In the Delaney case a Congressional Subcommittee engaged in an investigation of the administration of the Internal Revenue Laws had, over the protest of Delaney’s counsel and the Department of Justice, conducted public hearings into the acts of Delaney as Collector of Internal Revenue for the District of Massachusetts for which he had been removed from office, indicted and. within a few months after the Subcommittee’s hearings, tried and convicted. Those hearings, which in effect amounted to an advance legislative trial of Delaney not only upon the very transactions involved in his indictment, but also upon other alleged damaging derelictions not germane to the indictment, received wide publicity in the press of Boston, where Delaney was shortly to be judicially tried, and elsewhere throughout the country. In reversing Delaney’s conviction, Chief Judge Magruder said [199 F.2d 114]: “We think that the United States is put to a choice in this matter: If the United States, through its legislative department, acting conscientiously pursuant to its conception of the public interest, chooses to hold a public hearing inevitably resulting in such damaging publicity prejudicial to a person awaiting trial on a pending indictment, then the United States must accept the consequence that the judicial department, charged with the duty of assuring the defendant a fair trial before an impartial jury, may find it necessary to postpone the trial until by lapse of time the danger of the prejudice may reasonably be thought to have been substantially removed.” Perhaps it would be a sufficient answer to the appellants’ strong reliance on Delaney to point out that in the case before us there is no proof whatever — and indeed such proof would be impossible — as to the extent to which already existing public opinion against Communism, still less public opinion as to these defendants, was heightened by any of the activities of Governmental officials and agencies of which complaint is made. In Delaney it could be said from the proof that the activities of the Congressional Subcommittee must have had a direct impact upon public opinion as to the charges against the very defendant under indictment. But there are also other considerations which we think make Delaney quite inapposite to the present case. In Delaney the Congressional Subcommittee had full opportunity to make an informed choice as to its course of procedure, and in proceeding in the face of the specific protests of defense counsel and the Department of Justice against immediate public hearings it deliberately accepted the risk that its actions might result in interfering with the proper conduct of Delaney’s trial. Moreover, it was not apparent why the Subcommittee’s functions could not have been served adequately by private hearings as to the conduct of Delaney’s office, or at least by postponing public hearings until after his trial, which was right around the corner. In the present case, however, the public officials and agencies, whose actions are complained of long after the event, were never faced with any such concrete choice with respect to prosecution of this particular case. Their choice, if indeed there was a choice, lay rather in the general realm of broad public policy — how best to alert and protect the Nation against the dangers of Communism. We find nothing in Delaney to suggest that the functions of the Department of Justice and other branches of the Government must be mutually exclusive in this regard. Indeed the Chief Judge in Delaney was careful to limit the decision to the particular facts of the case before the Court, pointing out, 199 F.2d at page 115, that a public legislative hearing resulting in damaging publicity to a person not then under indictment would involve quite different considerations, from those in the case before it. Even such a case would be far removed from the one we have here. Further, the impact of the Subcommittee’s hearings as to Delaney was something that would wear out within a foreseeable passage of time, and the First Circuit held no more than that the trial should have been postponed until that time. Here there is no telling how long the Communist issue will be with us, and in every practical sense the choice confronting the trial Judge was between a trial or no trial of these defendants. There are still other wide differences between the two cases. Here there was no such pointed attempt on the part of other Governmental agencies to probe publicly into the issues involving these particular defendants in advance of their trial. Of the material in the record put out by Government officials or agencies only two documents — the joint statement of Mr. McGrath, the former Attorney General, and Mr. Hoover,, head of the FBI, issued at the time of the defendants’ arrest, and the pamphlet of the Senate Internal Security Subcommittee, issued in June 1952 — referred either to this prosecution or to any of the defendants involved in it, and neither reference is in a context to suggest that it was inspired by any purpose to prejudice the fair trial of these defendants or that it had such effect. Nor does any of the other material from official sources reasonably lead to such an inference. The suggestion that because of various public and private activities designed to induce ex-Communists to cooperate with the authorities the defendants were deprived of some advantage stemming from the general popular prejudice against “informers” and “undercover” agents, a number of whom were called as witnesses at the trial, we may dismiss without discussion, save to say that efforts to alleviate that sort of prejudice as an aid to enlisting the cooperation of such persons certainly violated no rights of the defendants. To be sure the arrest and trial of the defendants was attended by wide publicity. Some of it, particularly that which was critical of certain rulings of the trial Judge favorable to the defense, must be deprecated even under our scheme of things. Let it be said that there is not the slightest evidence that any of this publicity affected in any degree the trial Judge, whose conduct of the case we consider to have been exemplary. Nor do we think it can be said that any of the official or unofficial publicity added materially to the difficulty of giving the defendants a fair trial, a problem which under present turbulent world conditions we must recognize as inherent in any prosecution involving members of the Communist Party. In essence what the appellants are asking us to do is hold that there can be no proper trial of Communist Party members until the world situation quiets down and public opinion about Communism changes. We think there is nothing in our concepts of Constitutional due process which leads us to any such weird result. Cf. United States v. Von Clemm, 2 Cir., 1943, 136 F.2d 968, 971. In concluding discussion of this aspect of these appeals we should say that it is clear from the record that Judge Dimock spared no pains to insure that the defendants should have a fair and impartial trial. The selection of the jury, which extended over a period of twenty-three days, was conducted with patience and scrupulous care. We have already considered the Court’s rulings on evidence and its charge in the relatively few respects in which they are complained of, considering the length and complexity of the trial. Beyond that we should say that in the explanation of what the crime charged was and was not, and in the exposition of the defense position as to the Communist Party being simply a poIitical and not a revolutionary party the defendants could hardly have asked for more than the Court charged. Time and again throughout the trial Judge Dimock warned the jury against being influenced by any consideration other than the evidence adduced in the courtroom. And in his charge he instructed the jury: “I have often told you not to read anything about the case in the newspapers or listen to the radio about it, and now, in what may seem to be an excess of caution, I tell you that you must not consider, in your determination of the guilt or innocence of these defendants in accordance with these instructions, anything you may have ever heard or read other than the exhibits and testimony received and given in this courtroom. And when I say ‘anything’ I mean it in the fullest sense of the word. This includes anything you may have read about this case or any other case. Newspapers, radio, movies, television, what people generally may think, and what you yourselves may ever have thought, about Communists or communism or the Soviet Union, all this is out. What views the public or public officials of any name, nature or description may or may not entertain on these subjects has absolutely nothing to do with the case. Do not permit any extraneous matters affecting race or religion or color or anything else [sic] affect you one iota. You must concentrate on the evidence to the complete exclusion of everything else.” It is difficult to see what more the trial Court should or could have done to insure a fair trial. While we cannot place ourselves in the jui-y room it is significant that the jury deliberated for six days in reaching its verdict. We hold that no rights of the defendants were infringed by denial of these motions for a continuance and a mistrial, 6. Challenge to the Array We now reach the defendants’ appeal from the order below overruling their challenge to the petit jury array. Three grounds for reversal of that order are urged: (1) Negroes, Puerto Ricans and manual workers were intentionally and systematically limited to mere token representation on the jury list; (2) the responsible jury officials failed to employ methods which would insure representation of a cross-section of the community in the composition of the jury list; and (3) the preponderance of the “owner-manager” group in the make-up of the jury list precluded a fair and impartial trial of these defendants, who advocated policies in conflict with those of the predominant group. Before coming to these contentions it will be advisable to outline, first, the jury selection process as it has operated in the Southern District and, second, the foundation laid by the defendants for their challenge. It was shown by the defendants’ offer of proof, which was not controverted by the Government, and which was accepted as true by the District Court except where the subject