In re Braverman

399 F. Supp. 801, 1975 U.S. Dist. LEXIS 12074

• Court: District Court, D. Maryland
• Decided: June 3, 1975
• Docket: Misc. No. 32
• Status: Published

Opinions

Recommendations of the Panel to the Full Court

Maurice Braverman, who was disbarred from practice in our court in 1957, seeks reinstatement as a member of its bar. His application was referred to this panel for hearing and for recommendation to the full court.

In 1952 Braverman and five codefendants were found guilty by a jury in this court of conspiracy to violate the provisions of Section 2 of the Smith Act, 18 U.S.C.A. § 2385.¹ Judge Chesnut, who presided at the trial, sentenced Braver-man to imprisonment for three years and a fine of $1,000. On appeal, the convictions were affirmed. Frankfeld et al. v. United States, 198 F.2d 679 (4 Cir. 1952), cert. den. 344 U.S. 922, 73 S.Ct. 389, 97 L.Ed. 710 (1953), reh. den. 345 U.S. 913, 73 S.Ct. 652, 97 L.Ed. 1348 (1953). After his release from prison Braverman was disbarred by the Court of Appeals of Maryland and by this court. Braverman v. Bar Association of Baltimore City, 209 Md. 328, 121 A.2d 473 (1955), cert. den. 352 U.S. 830, 77 S.Ct. 44, 1 L.Ed.2d 51 (1956); In re Braverman, 148 F.Supp. 56 (D.Md. 1957). Recently, on application, Braver-man was readmitted to practice law in Maryland. In re Braverman, 271 Md. 196, 316 A.2d 246 (1974).²

In support of his present application Braverman makes several arguments, which should be considered separately and in relation to each other.

1.

Braverman argues that he never engaged in or incited force and violence.³ This argument misconceives the offense with which Braverman was charged and of which he was convicted. He was not charged with engaging in or inciting force or violence.

Essentially, the charge was that he had knowingly and wilfully become a member of and participated in a conspiracy, the purpose of which was to teach and advocate the duty and necessity of overthrowing the Government of the United States by force and violence as speedily as circumstances would permit. See n. 1, above. The opinion of the Fourth Circuit, written by Chief Judge Parker, set out and discussed the evidence which that court found sufficient to support the charge, 198 F.2d at 684-687. That opinion dealt first with the evidence that during the relevant period the Communist Party of the United States had as its objective the overthrow of the government of the United States by force and violence as speedily as circumstances would permit. Id. at 684-686. The opinion then stated:

“The connection of the defendants with the conspiracy in which the Communist Party was engaged was also amply supported by the testimony. The case as to them was not one of mere membership in the party depending upon ‘guilt by association’. They were shown to be officers and teachers of the party occupying such positions with respect to its activities that the jury could well conclude that they necessarily had knowledge of the criminal purposes in which it was engaged. * * * ” Id. at 686.

After discussing the participation of the other defendants, the opinion continued:

“ * * * Defendant Braverman had served as a member of the District Committee of the party, had been a candidate for chairman at one of its meetings, had served as its attorney, was a member of its ‘white collar club’ and had conducted classes for it in his home. By reason of the positions held by these persons in the party and the active part taken by them in its work, the jury were amply justified in concluding that they had knowledge of its purposes. It is well settled that persons who join a conspiracy with knowledge of its unlawful purposes make themselves parties thereto and are equally guilty with those who originated it. [citations omitted] As said by Mr. Justice Jackson in American Communications Association v. Douds, 339 U.S. 382, 433, 70 S.Ct. 674, 701/ 94 L.Ed. 925, ‘ * * * personal guilt may be incurred by joining a conspiracy. That act of association makes one responsible for the acts of others committed in pursuance of the association’.” Id. at 686, 687.

Judge Parker then discussed the fairness of the trial, and stated:

“Defendants contend that the court submitted the case in such way as to permit the jury to convict them of conspirary on the basis of mere membership in the Communist party, without knowledge on their part of any criminal purpose in which the party was engaged. There is no basis for any such contention. On the contrary . the jury were expressly instructed that no. one of the defendants could be convicted unless the jury should find guilty knowledge and intent on his part. * * *” Id. at 687.

This conclusion was supported by quotations from the charge. Id. at 687, 688.

Braverman did not take the stand at his trial and does not deny that he participated in various activities of the Communist Party, as referred to in the opinion of the Fourth Circuit, and that he conducted classes in his home, teaching the Communist classics.⁴

Asked by a member of our panel whether Lenin did not advocate the usé of force and violence, Braverman answered that he had followed very carefully the discussion of the works of Marx and Lenin in the Schneiderman case before he joined the Communist Party; that he had read some but not all of their works, and that he “never came across force and violence as a way of achieving a change”. In a published speech which Braverman made at the Law School of the University of Maryland after he was readmitted to the Maryland bar, which was called to his attention during the hearing before our panel, Braverman said: “And, as a matter of fact, it was because I was assured by the Supreme Court in the Schneiderman case that the Communist Party did not believe in force and violence that I joined the Communist Party”.

Aside from the inherent incredibility of the quoted statements made by Braverman, the opinions in the Schneiderman case clearly refute those statements. Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943), was a proceeding to cancel a certificate of citizenship, granted in 1927. The Court held that the evidence did not show with the requisite degree of certainty that, during the period in question, Schneiderman was not attached to the principles of the Constitution of the United States. Importantly, however, for the point our panel is now considering, the opinion of Mr. Justice Murphy referred to: The Communist Manifesto of Marx and Engels; The State and Revolution by Lenin; The Statutes, Theses and Conditions of Admission to the Communist International; and The Theory and Practice of Leninism, written by Stalin. 320 U.S. at 149-151, 63 S.Ct. 1333. Each reference was accompanied by a footnote, setting out quotations from the work. Excerpts from The Communist Manifesto included:

“The Communists disdain to conceal their views and aims. They openly declare that their ends can be attained only by the forcible overthrow of all existing social conditions. * * *

“In depicting the most general phases of the development of the proletariat, we traced the more or less veiled civil war, raging within existing society, up to the point where that war breaks out into open revolution, and where the violent overthrow of the bourgeoisie lays the foundation for the sway of the proletariat.” Id. at 149, 63 S.Ct. at 1348.

Excerpts from The State and Revolution, by Lenin, included:

“Fifth, in the same work of Engels, there is also a disquisition on the nature of a violent revolution; and the historical appreciation of its role becomes, with Engels, a veritable panegyric of a revolution by force.

* -X- *

«* * *

“The necessity of systematically fostering among the masses this and only this point of view about violent revolution lies at the root of the whole of Marx’s and Engels’ teaching * * * ” Id. at 149, 150, 63 S.Ct. at 1348.

The material in footnotes 35 to 39 of Mr. Justice Murphy’s opinion, id. at 149-152, 63 S.Ct. 1333, show repeated advocacy of force and violence, some of it after 1927.

The dissenting opinion of Chief Justice Stone, in which Mr. Justice Roberts and Mr. Justice Frankfurter concurred, id. at 170 et seq., 63 S.Ct. 1333, also showed the continuing advocacy of force and violence, and was supported by an appendix containing long quotations from the cited works, id. at 197 et seq., 63 S.Ct. 1333. One quotation from The State and Revolution, by Lenin, will suffice: “The substitution of a proletarian for the capitalist State is impossible without violent revolution. * * * ” Id. at 204, 63 S.Ct. at 1374.

At the hearing before our panel, Braverman said: “I believed what I read (i. e. that belief in force and violence was incompatible with membership in the Communist Party), and when I found out there was a difference between what I read and what was carried out in practice, I severed my connection with the Communist Party * * *.” In fact, he severed his connection after his release from prison. His active association with the party was during the period which saw, inter alia, the communist coup d’etat in Czechoslovakia, in 1948.

2.

Braverman argues that his “conviction, the thing for which I was convicted, conspiracy to teach and advocate, was a crime from the time of Dennis to the time of Yates”, — that the Smith Act “was in essence ruled unconstitutionally applied, wrongfully applied, in cases similar to mine”.

Certainly, the trial of Braverman et al. in this court and the affirmance of the conviction on appeal were controlled by the principles decided by the Supreme Court in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951). But it is not true, as Braver-man argues, that later cases in the Supreme Court have held that the evidence found sufficient to convict Braverman and his codefendants would not still be sufficient to support a conviction.⁵

In Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), the Court reaffirmed the basic principles decided in Dennis. The Court reversed the convictions in Yates because the trial judge had not charged the jury that in order to convict, the jury must find that the advocacy which the defendant conspired to promote was of a kind calculated to “incite” persons to action, 354 U.S. at 316, 77 S.Ct. 1064. It should be noted that such a charge was given in Dennis and was also given by Judge Chesnut in Braverman’s case.⁶ The Yates opinion then considered the evidence presented against the several defendants; it found that with respect to five of the defendants the evidence was not sufficient to prove the requisite knowledge, but that as to nine of the defendants the evidence was sufficient, and as to them the Court remanded the case for a new trial. It should be noted that in Scales v. United States, 260 F.2d 21 (4 Cir. 1958), Judge Soper stated that in the Yates case “the Dennis decision was explained and approved”. 260 F.2d at 24.

The Scales case, in which the decision of the Fourth Circuit, 260 F.2d 21, was affirmed by the Supreme Court, 367 U. S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961), was a successful prosecution under the Smith Act.⁷

Dealing with the defendant’s argument that the statute infringed First Amendment freedoms, Mr. Justice Harlan speaking for the Court, stated :

“ * * * It was settled in Dennis that the advocacy with which we are here concerned is not constitutionally protected speech, and it was further established that a combination to promote such advocacy, albeit under the aegis of what purports to be a political party, is not such association as is protected by the First Amendment. We can discern no reason why membership, when it constitutes a purposeful form of complicity in a group engaging in this same forbidden advocacy, should receive any greater degree of protection from the guarantees of that Afhendment.” 367 U.S. 228, 229, 81 S.Ct. at 1486.

Scales had also argued that the membership clause was invalid as against due process objections under the Fifth Amendment due to the lack of any substantial relationship between status as a member and the Party’s claimed advocacy of violent overthrow. The Court disposed of that contention in these terms:

“In this instance it is an organization which engages in criminal activity, and we can perceive no reason why one who actively and knowingly works in the ranks of that organization, intending to contribute to the success of those specifically illegal activities, should be any more immune from prosecution than he to whom the organization has assigned the task of carrying out the substantive criminal act.” 367 U.S. at 226, 227, 81 S.Ct. at 1485.

After an extended review of the evidence, the Court stated:

“We conclude that this evidence sufficed to make a case for the jury on the issue of illegal Party advocacy.

Dennis and Yates have definitely laid at rest any doubt that present advocacy of future action for violent overthrow satisfies statutory and constitutional requirements equally with advocacy of immediate action to that end. 341 U.S. at page 509, 71 S.Ct. [857]; at page 867, 95 L.Ed. 1137; 354 U.S. at page 321, 77 S.Ct. [1064] at page 1078, 1 L.Ed.2d 1356. Hence this record cannot be considered deficient because it contains no evidence of advocacy for immediate overthrow.” Id. at 251, 81 S.Ct. at 1497.⁸

3.

Braverman also argues that the crime of which he was convicted “was not a crime involving moral turpitude, but was rather a political crime”.⁹

His first argument on this point may be summarized as follows: “Since there are constitutional authorities that say there is an absolute right to advocate overthrow of the government, can this be moral turpitude ?”

It is true that some legal scholars and some dissenting opinions in the Supreme Court have espoused the view that the First Amendment right is absolute. But that view has not been adopted or applied by the Supreme Court or by the Fourth Circuit. As Chief Justice Vinson said in Dennis:

“-* * * Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.

“Obviously, the words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required.” 341 U.S. 494, 509, 71 S.Ct. at 867.

After thus rejecting “any principle of governmental helplessness in the face of preparation for revolution”, the Chief Justice turned to whether the means employed by Congress in the Smith Act conflict with the First and Fifth Amendments to the Constitution. Dealing with an argument by the defense that the Smith Act would prohibit academic discussion of the merits of Marxism-Leninism, he noted that the very language of the Act itself negates such an interpretation, since it is directed at advocacy, not discussion.

In considering the application of the Holmes-Brandeis “clear and present danger” test, the Chief Justice distinguished the case before the Court from those cases where the test resulted in reversal of convictions because the interest the State was attempting to protect was itself too insubstantial to warrant restriction of speech. In Gitlow v. People of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), which dealt with the New York criminal syndicalism statute, Justice Holmes and Justice Brandéis dissented because they felt dissemination by Gitlow of his Manifesto posed no substantial threat to the community. However, as Chief Justice Vinson pointed out, the two great dissenters were not confronted in Gitlow with any situation comparable to the one in Dennis— “the development of an apparatus designed and dedicated to the overthrow of the Government, in the context of world crisis after crisis.” 341 U.S. at 510, 71 S.Ct. at 867.

The crime of which Braverman was convicted does involve moral turpitude in the legal sense of the term, particularly in the case of a lawyer who has taken an oath to support the Constitution of the United States.

4.

Finally, Braverman argues that he has been rehabilitated; that since his release from prison he has not engaged in any illegal activities, but has earned his living as an accountant, and more recently has engaged in various legal or paralegal activities helping the poor and the unfortunate. He has submitted to us, as he did to the state courts, letters and statements from respected members of the bar and others attesting to his rehabilitation and supporting his application for reinstatement.

The word rehabilitation has several meanings. We have no doubt that Braverman has rehabilitated himself within some of those meanings, and that if he were still under probation supervision he should be released therefrom. The question here, however, is whether he should be admitted to argue cases before this court, in which an increasingly large percentage of the cases involve questions of constitutional law.

Not only was he convicted of a crime which involved a violation of his oath to support and defend the Constitution of the United States, he still argues that the evidence was insuffieient' to convict him despite the careful review of facts and law by Judge Chésnut and the Fourth Circuit.

His statement to us with respect to what was said in the opinion in the Schneiderman case was made either recklessly or with intent to mislead the panel.

We welcome the amount of rehabilitation which Braverman has achieved; we respect his efforts to help unfortunate persons; but we conclude that he should not be readmitted to the bar of this Court.

We, therefore, recommend to the court that Braverman’s application for reinstatement as a member of the bar of this court be denied.

ROSZEL C. THOMSEN Senior United States District Judge HERBERT F. MURRAY United States District Judge C. STANLEY BLAIR United States District Judge

ORDER

The matter of the petition of Maurice Louis Braverman for reinstatement as a member of the bar of this court having been referred by the court to the disciplinary committee of the court as a panel of the court to receive any evidence and arguments offered in connection therewith, and to make a report to the full court;

The panel having considered the transcript of petitioner’s original trial in 1952, the decision of the United States Court of Appeals affirming his conviction, the subsequent disbarment proceedings in this court and the Court of Appeals of Maryland, the transcript of petitioner’s hearing before Judges Harold Grady, David Ross and Mary Arabian in connection with his application for readmission to the Maryland bar, the material submitted to those judges with respect to petitioner’s recent activities, the report of said judges and the decision and opinion of the Court of Appeals of Maryland thereon;

The panel having held a hearing on the petition and having considered the statement made by petitioner at such hearing and his responses to questions put to him by members of the panel, and the arguments presented by counsel on his behalf;

The panel having submitted to the full court its recommendation that petitioner’s application for reinstatement as a member of the bar of the court be denied;

The opinion of the panel in support of its recommendation having been fully considered,

It is this 3rd day of June, 1975, ordered that the application of Maurice Louis Braverman for reinstatement to the bar of the court be; and the same hereby is, denied.

EDWARD S. NORTHROP Chief Judge ROSZEL C. THOMSEN Senior District Judge R. DORSEY WATKINS Senior District Judge JAMES R. MILLER, Jr. District Judge HERBERT F. MURRAY District Judge C. STANLEY BLAIR District Judge

The undersigned dissent from this order, and for the reasons set forth in the dissenting opinion believe that the application for reinstatement should be granted.

FRANK A. KAUFMAN District Judge ALEXANDER HARVEY, II District Judge JOSEPH H. YOUNG District Judge

1 . The indictment charged defendants with conspiracy to violate the statute “by (1) unlawfully, willfully, 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 the aforesaid overthrow and destruction of the Government of the United States by force and violence as speedily as circumstances would permit; and by (2) unlawfully, 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 intent of causing the aforesaid overthrow and destruction of the Government of the United States by force and violence as speedily as circumstances would permit.” The allegations describing the conspiracy in greater detail are set out in Frankfeld v. United States, 198 F.2d 679, at 681, 682. Section 2 of the Smith Act is set out in that opinion at p. 681.

2 . At the hearing on the pending application this panel has considered not only the opinions cited above, but also the transcript of the trial in this court in 1952, the transcript of the hearing before Judges Grady, Ross and Arabian in connection with Braverman’s application for readmission to the Maryland Bar, the letters from members of the bar and other citizens with respect to Braverman’s recent activities, recommending the granting of his application for reinstatement, the answers of Braverman to questions put to him by members of our panel, and the arguments presented by Braverman and his counsel at the hearing before us.

3 . He refers to a comment by Judge Ohesnut during the trial that there was no evidence “that you had been given to force and violence”. (Tr. 2137).

4 . Braverman has suggested that he was convicted because of his work as attorney for the party and for some of its members. Judge Chesnut made clear, however, that such legal services did not constitute adherence to the conspiracy (Tr. 2560) ; rather, as Judge Parker noted, they were admissible to show that he had knowledge of the purposes of the party. 198 F.2d at 686.

On cross-examination by counsel for one of the defendants, Mrs. Markward, one of the government witnesses, testified as follows:

“Q (By Mr. Wright [attorney for defendant Wood]) : Now, I want to know if there was ever advocated the use of force and violence by the Communist Party, and if you can do it, please tell us about that, when it was, under what circumstances it was done, if you can. Give us the dates, if you recall them, to the best of your recollection,

“A Well, this was something which was constantly reiterated over the years, and I heard it stated and agreed to by all of the defendants at some time. I can’t tell you at which-meeting, the date of such meeting, I can’t tell you that at this time, but it is in the record. The statement was that it was necessary to bring about the revolution, and the statement was also that this could not come about peacefully.” (Tr. 1475-1476).

5 . It is quite possible that during the present efforts toward detente between the United States and the Soviet Union, no prosecution based on the evidence offered against Braver-man would be brought. It does not follow that if such a prosecution were brought the evidence against Braverman would not be sufficient to support a conviction, in the light of the decisions of the Supreme Court since Dennis.

6 . Judge Chesnut instructed the jury (Tr. 2255) : “And in this connection I further instruct you that the Smith Act is not aimed against the teaching of the mere abstract doctrine of overthrowing the government or the mere teaching of the historical doctrine of Marxism or Leninism. The Communist Party and its members are entitled to do this so long as their teaching does not go to the extent of advocating action for the accomplishment of a violent revolution by language reasonably and ordinarily calculated to incite persons to such action.”

7 . At issue in Scales was the validity of the membership clause of the Smith Act. The statutory challenge was grounded on an argument that Section 4(f) of the Internal Security Act of 1950, 50 U.S.O.A. § 783(f), constituted a pro tanto repeal of the membership clause of the Smith Act. This argument had been twice rejected by the Court of Appeals for the Fourth Circuit (227 F.2d 589, Parker, C. J.; 260 F.2d 27, Soper, J.) and was similarly rejected by the Supreme Court on the ground that Section 4(f) of the Internal Security Act merely prevented ,the finding of a per se violation from mere membership and by its terms should be construed as requiring not only knowing membership, but also active and purposive membership.

8 . The opinion continued:

“Since the evidence amply showed that Party leaders were continuously preaching during the indictment period the inevitability of eventual forcible overthrow, the .first and basic question is a narrow one: whether the jury could permissibly infer that such preaching, in whole or in part, ‘was aimed at building up a seditious group and maintaining it in readiness for action at a propitious time * * * the kind of indoctrination preparatory to action which was condemned in Dennis.’ Yates, supra, at 321-322, 77 S.Ct. 1064.” 367 U.S. 251, 252, 81 S.Ct. at 1497.

9 . In one sense the crime of which Braverman was convicted was a political crime, because it dealt with issues which are important to the polity of the United States. Judge Chesnut, however, took pains to be sure that hysteria or abuses which sometimes occur in such cases did not occur in the trial before him. Indeed, it was the defendants themselves, particularly Braverman, who sought to make a political trial out of the case.