United States v. Spock

416 F.2d 165

• Court: Court of Appeals for the First Circuit
• Decided: July 11, 1969
• Docket: Nos. 7205-7208
• Status: Published

Opinions

ALDRICH, Chief Judge.

These are appeals by four defendants¹ convicted under a single count indictment for conspiracy. We reverse.

As is well known, the war in Vietnam and the draft to support it have engendered considerable animosity and frustration. In August 1967 a number of academic, clerical, and professional persons discussed the need of more vigorous opposition to governmental policies. From their eventually consolidated efforts came a document entitled “A Call to Resist Illegitimate Authority” (hereinafter the Call) and a cover letter requesting signatures and support. The letter was signed by defendant Dr. Benjamin Spoek and defendant Rev. William Sloane Coffin, Jr., and two other persons. The Call was originally signed by them, numerous others, and eventually by hundreds. The defendant Mitchell Goodman had been preparing a somewhat similar statement against the war and the draft. In mid-September he learned of the Call, which he also signed. He, Coffin, Spock and others spoke on October 2 at a press conference in New York City to launch the Call. It was there announced by Goodman that further activities were contemplated, including a nationwide collection of draft cards and a ceremonial surrender thereof to the Attorney General. On October 16 a draft card burning and turn-in took place at the Arlington Street Church in Boston, arranged by the defendant Michael Ferber, and participated in by Coffin. Four days after-wards all four defendants attended a demonstration in Washington, in the course of which an unsuccessful attempt was made to present the fruits of that collection and similar gatherings to the Attorney General.² The details of these matters will be discussed later.

The indictment was framed under section 12 of the Military Selective Service Act of 1967, 50 App. U.S.C. § 462(a). It charged that defendants, and others known and unknown, conspired to “counsel, aid and abet diverse Selective Service registrants to * * * neglect, fail, refuse and evade service in the armed forces of the United States and all other duties required of registrants under the Universal Military Training and Service Act * * * and the rules, regulations and directions duly made pursuant to said Act * * * to * * * fail and refuse to have in their personal possession at all times their registration certificates [and] * * * valid notices of classification³ [and conspired to] * * * unlawfully, willfully and knowingly hinder and interfere, by any means, with the administration of the Universal Military Training and Service Act.”⁴ The case was tried to a jury, which answered special questions framed by the court, most answers being unfavorable to the defendants, and returned general verdicts of guilty. On this appeal defendants raise a number of issues, the most basic of which is their asserted right to directed acquittals, either because of constitutional immunity or because the government failed in its proof. We consider these contentions in that order.

I

Inseparable from the question of the sufficiency of the evidence to convict are the rights of the defendants, and others,⁵ under the First Amendment. We approach the constitutional problem on the assumption, which we will later support, that the ultimate objective of defendants’ alleged agreement, viz., the expression of opposition to the war and the draft, was legal, but that the means or intermediate objectives encompassed both legal and illegal activity without any clear indication, initially, as to who intended what. This intertwining of legal and illegal aspects, the public setting of the agreement and its political purposes, and the loose confederation of possibly innocent and possibly guilty participants raise the most serious First Amendment problems. Indeed our Brother Coffin, in dissent,⁶ admits to a temptation “to say that the law should recognize no overt conspiracy in the sensitive area of public opinion.” This temptation leads him down paths that we cannot follow, but which, nevertheless, we must consider.

As the defendants point out, most conspiracies are secret. To argue from this, however, that illegality presupposes secrecy is to confuse means with ends. Illegality normally seeks cover, but conspirators may act openly or not, as best suits their purpose. Here the defendants’ primary object was publicity, and their conduct was designedly open. No one before has suggested that this fact, or the concomitant warning to the government of impending danger, requires that the government’s hand be stayed until the substantive offense is committed.⁷ Contrary to the defendants’ position, many “public” conspiracies have been successfully prosecuted. A case remarkably similar is Fraina v. United States, 2 Cir., 1918, 255 F. 28. There two defendants were charged with conspiring, together with persons unknown, to aid, abet and counsel divers unknown persons to evade and neglect the requirements of the then Selective Service Act. The overt acts alleged were the organizing of a mass meeting and the distribution of pamphlets entitled “Conscientious Objectors” (who proved to be “nonreligious conscientious objectors” whose “idealism compels them to decline all forms of military service.”) The opinion affirming the convictions touches many aspects of the case at bar in addition to the matter of publicity.⁸

That openness does not immunize an agreement may be demonstrated by an example. A group of vigilantes agreeing in the town square to solicit cohorts to call out a lynch mob would not be absolved because their agreement was open. Nor should their agreement be protected by the First Amendment if, at the same time, they were engaging in free speech on the evils of their victim’s alleged offense; nor, indeed, because their principal object was the proper one of deterring such offenses. The dissent’s finding the present agreement pasteurized because it was exposed to the light is in effect granting a right to public association which is not given free speech itself. Cox v. Louisiana, 1965, 379 U.S. 559, 563-564, 85 S.Ct. 476, 13 L.Ed.2d 487; Giboney v. Empire Storage & Ice Co., 1949, 336 U.S. 490, 501-502, 69 S.Ct. 684, 93 L.Ed. 834. Lack of arcana cannot be determinative.⁹

Admittedly, the First Amendment rights of free speech and free association, see, e. g., Elfbrandt v. Russell, 1966, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321; NAACP v. Alabama, 1958, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488, are of such importance that they must prevail if the government’s interest in deterring substantive crimes before they take place¹⁰ is insubstantial, or there is a “less restrictive alternative” by which the substantive evil may be prevented. United States v. Robel, 1967, 389 U.S. 258, 265-268, 88 S.Ct. 419, 19 L.Ed.2d 508; Aptheker v. Secretary of State, 1964, 378 U.S. 500, 512-514, 84 S.Ct. 1659, 12 L.Ed.2d 992; Shelton v. Tucker, 1960, 364 U.S. 479, 488-489, 81 S.Ct. 247, 5 L.Ed.2d 231. This calls for a weighing. In Aptheker the Court struck down the broad Congressional proscription against issuing passports to Communists only after considering the availability and adequacy of other security measures, one actually proposed by the President. In defendants’ much emphasized case of New York Times Co. v. Sullivan, 1964, 376 U.S. 254, 279-283, 84 S.Ct. 710, 11 L.Ed.2d 686, not all public discussion was held protected; immunity was denied speakers motivated by “actual malice.”

In comparing the present private and public interests we start with the assumption that the defendants were not to be prevented from vigorous criticism of the government’s program merely because the natural consequences might be to interfere with it, or even to lead to unlawful action.¹¹ Thus Bond v. Floyd, 1966, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed., held that the First Amendment protected an expression of "sympathy * * * and support [for] the men in this country who are unwilling to respond to a military draft.” The Court said, with specific reference to section 462(a), “[T]his statement alone cannot be interpreted as a call to unlawful refusal to be drafted.” Id. at 133, 87 S.Ct. at 348. The defendants here are not charged, however, with expressions of sympathy and moral support, but with conspiring to counsel, aid and abet Selective Service registrants to disobey various duties imposed by the Selective Service Act. The maintenance of an army in peacetime is a valid, in fact vital, governmental function. United States v. O’Brien, 1968, 391 U.S. 367, 377-378, 88 S.Ct. 1673, 20 L.Ed.2d 672. If a registrant may be convicted for violation of the draft laws, surely “[a] man may be punished for encouraging the commission of [the] crime.” Cox v. Louisiana, supra, at 563, 85 S.Ct. at 480; Fox v. Washington, 1915, 236 U.S. 273, 35 S.Ct. 383, 59 L.Ed. 573.

The government’s ability to deter and punish those who increase the likelihood of crime by concerted action has long been established. See Developments in the Law — Criminal Conspiracy, 72 Harv.L.Rev. 920, 923-25 (1959). Restricting it to punishment /of substantive violations ignores the potency of conspiratorial conduct;¹² to wait for the substantive offense ma^ be to wait too long. Congress has a right to prefer registrants to felons. However attractive the dissent’s conclusion may be to those of liberal First Amendment views, it sets its own stage by asking “whether there is reason or authority which compels the application [here] of the conspiracy sanction.” (emphasis in orig.) The authority is an act of Congress. We do not read the “less restrictive alternative” cases as placing such a burden upon the government.¹³

Nor is the government's interest diminished in this case by defendants’ claim that their conduct did not involve “incitement” and their reliance upon Bond v. Floyd’s pronouncement that an expression of “sympathy and support” for those who resisted the draft did not violate section 462(a). The defendants do not quote all of Bond. The Court regarded Bond’s first remarks as “opaque.” Accordingly, it considered a second statement,¹⁴ which it viewed as a “clarification” demonstrating that Bond was not in fact “advocating” a violation of law. It concluded that an expression of “ ‘sympathy * * * and support’ * * * alone cannot be interpreted as a call to unlawful refusal.” (emphasis suppl.) The implication is apparent.

In the early Smith Act cases, in considering the defendants’ conduct in teaching the doctrines of revolution and advocacy of violence, substantial questions arose as to imminency of accomplishment. Dennis v. United States, 1951, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Yates v. United States, 1957, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356. In the case at bar the defendants were concerned with the present. Their objective did not relate to some future war, but was a call for immediate action to thwart the one at hand. See Thomas v. Collins, 1945, 323 U.S. 516, 529-538, 65 S.Ct. 315, 89 L.Ed. 430. See also De Jonge v. Oregon, 1937, 299 U.S. 353, 365, 57 S.Ct. 255, 81 L.Ed. 278. What is effective persuasion must depend on the circumstances.¹⁵ The existence of a large number of young men, perhaps impressionable, and in any event oriented in defendants’ direction by natural self-interest, adequately distinguishes this case from Wood v. Georgia, 1962, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569, and Bridges v. California, 1941, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192. In this context the “soft sell” may be the most telling.¹⁶

Despite the validity of the government’s present interest, the defendants were entitled under the cases to certain protections before they could be convicted of conspiracy in what we might call a bifarious undertaking, involving both legal and illegal conduct. This matter was considered by Mr. Justice Harlan, speaking for the Court in Seales v. United States, 1961, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782. The question there was whether convicting “active” members of the Communist party would interfere with the freedom of inactive, or legal, members. In the course of discussing this question he spoke of such groups as not being a “technical conspiracy” because of their mixed motives, and recognized the impropriety of a “blanket prohibition of association with a group having both legal and illegal aims.” It did not follow, however, that distinction could not be effected. Indeed, this is the substantive purpose of all conspiracy law, which is directed only at those who have intentionally agreed to further the illegal object.¹⁷ The First Amendment cases merely present a more difficult problem of insuring that the government does not use its procedural advantages to expand the strict elements of the offense.

In Scales the Court held that protection for the innocent could be adequately accomplished by requiring that the defendants’ specific illegal intent be proved to the degree demanded in Noto v. United States, 1961, 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836. “[Cjriminal intent * * * must be judged strictissimi juris, for otherwise there is a danger that one in sympathy with the legitimate aims of such an organization, but not specifically intending to accomplish them by resort to violence, might be punished for his adherence to lawful and constitutionally protected purposes, because of other and unprotected purposes which he does not necessarily share.” Noto v. United States, at 299-300, 81 S.Ct. at 1522.¹⁸ When the alleged agreement is both bifarious and political within the shadow of the First Amendment, we hold that an individual’s specific intent to adhere to the illegal portions may be shown in one of three ways: by the individual defendant’s prior or subsequent unambiguous statements; by the individual defendant’s subsequent commission of the very illegal act contemplated by the agreement; or by the individual defendant’s subsequent legal act if that act is “clearly undertaken for the specific purpose of rendering effective the later illegal activity which is advocated.” Scales v. United States, 367 U.S. at 234, 81 S.Ct. at 1488.¹⁹

Application of such a standard should forcefully answer the defendants' protests that conviction of any of them would establish criminal responsibility of all of the many hundreds of persons who signed the Call. Even if the Call included illegal objectives, there is a wide gap between signing a document such as the Call and demonstrating one’s personal attachment to illegality. Of greater importance, it responds to the legitimate apprehension of the amicus that the evil must be separable from the good without inhibiting legitimate association in an orderly society.

At the same time, this principle demonstrates a fundamental error in the government’s approach. Adopting the panoply of rules applicable to a conspiracy having purely illegal purposes, the government introduced numerous statements of third parties alleged to be co-conspirators. This was improper: The specific intent of one defendant in a case such as this is not ascertained by reference to the conduct or statements of another even though he has knowledge thereof. Cf. United States v. Silverman, 2 Cir., 1957, 248 F.2d 671; Enfield v. United States, 8 Cir., 1919, 261 F. 141, 143-144. The metastatic rules of ordinary conspiracy are at direct variance with the principle of strictissimi juris

20 We need not determine, however, to what extent, because of a failure to recognize this principle, there may have been prejudicial error requiring a new trial. For reasons that we will come to, (Point III, infra,) a new trial is required in any event. What we do determine is that the First Amendment does not, per se, require acquittal.

II

In this section we consider whether, on the review of the record which is required by Yates v. United States, supra, and Dennis v. United States, supra, the evidence was sufficient to take the defendants to the jury. We divide this consideration into three parts. First, whether there was evidence of an agreement; second, whether the agreement contemplated or included illegal activity; third, whether the defendants individually adhered to that illegality.

The Evidence of Agreement

The government’s claim of agreement looks basically to the Call, the cover letter, and the subsequent press conference.²¹ Spock participated in drafting the Call and, as has been stated, he and Coffin were two of the four persons who signed the cover letter. Goodman signed the Call, and was an active participant in the launching press conference which was chaired by Coffin and at which Spock appeared. Ferber did not sign the Call. The Call was addressed “To the young men of America, to the whole of the American people, and to all men of good will everywhere.”²² It observed there was a “growing number of young American men” who, because of their moral and religious beliefs could not contribute to the war in Vietnam in any way. After setting forth at some length the signers’ belief that the war was unconstitutional and illegal, it stated, “[W]e believe on all these grounds that every free man has a legal right and a moral duty to exert every effort to end this war, to avoid collusion with it, and to encourage others to do the same.” There followed a recital of the forms of resistance that young men were exercising, the detail of which we will return to, and an assertion of the signers’ belief that “each of these forms of resistance * * * is courageous and justified. * * * We will continue to lend our support to those who undertake resistance to this war. We will raise funds to organize draft resistance unions, to supply legal defense and bail, to support families and otherwise aid resistance to the war in whatever ways may seem appropriate. * * We call upon all men of good will to join us in this confrontation with immoral authority. * * * Now is the time to resist.”

The cover letter, requesting signatures and other response to the Call, stated that the signers of the Call “have pledged themselves to extend material and moral support to young men who are directly resisting the war.” There followed a “box” containing requests for further signatures of “endorsement,” contributions of “$_to support the work of RESIST. (Please make checks payable to RESIST.),” and volunteers interested in organizing or joining local groups “to support young men directly resisting the war.” A similar “box” appeared in the Call itself, when printed.

At the press conference, in addition to discussing the Call, Goodman advanced his own paper, signed also by Coffin, along strikingly similar lines, entitled “Civil Disobedience Against the War” (hereinafter Civil Disobedience). It announced that the purpose of the signers was to “take away from the government the support and bodies it needs” and contained the following:

“The draft law commands that we shall not aid, abet or counsel men to refuse the draft. But as a group of the clergy has recently said, * * * when young men refuse to allow their conscience to be violated by an unjust law and a criminal war, then it is necessary for their elders — their teachers, ministers, friends — to make clear their commitment, in conscience, to aid, abet and counsel them against conscription. Most of us have already done this privately. Now publicly we will demonstrate, side by side with these young men, our determination to continue to do so.” (emphasis in orig.)

Goodman described the Call as a first step, and said that further activity was to follow. He announced a demonstration to be held in Washington on October 20, as an act of “direct creative resistance,” at which time draft cards surrendered at turn-ins that had been planned for October 16 would be delivered to the Attorney General. This announcement, as both conceded, was the result of a prearrangement with Coffin.

Spock argues that there was no “agreement among leaders of an integrated political group * * *. [T]his case presents no more than the publicly expressed coincidence of views on' public affairs.” No merit, however, lies in the suggestion that there must be a cohesiveness in the group beyond the confines of the agreement itself. See Direct Sales Co. v. United States, supra n. 7, at 713, 63 S.Ct. 1265; cf. United States v. Falcone, 1940, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128.²³ In the light of all the circumstances the jury was not obliged, in considering the question of agreement, to find a mere coincidence in the appearance of several speakers on the same platform. See Fraina v. United States, supra. Cf. United States v. Kompinski, 2 Cir., 1967, 373 F.2d 429, 434.²⁴

The Call was not what is known in law as an integrated document, limited to the four corners of the instrument. The jury could properly infer that it could not occur in the abstract, with no parents, and no active participants in a joint undertaking. We hold that they could look to Spock as one of the drafters, and to Spock and Coffin as two of the four signers of the solicitation letter, and in the light of the press conference held to publicize the Call in which Goodman took a prominent part, they could find that Goodman included himself as an active member. The evidence disclosed more than parallel conduct, see United States v. Bufalino, 2 Cir., 1960, 285 F.2d 408, 414-415; rather there are several instances of concerted activity from which the jury could infer an agreement.²⁵ Whether the defendants’ intended participation was unlawful is another matter.

The Evidence of Illegal Purpose

The defendants contend that nothing in the record would justify a finding of unlawful purpose in their agreement. Spock puts this succinctly: “There is nothing in the Call to Resist * * * which suggests the objective of counseling, aiding and abetting anyone to resist induction.” Rather, he contends the only action contemplated was “simply moral support and financial aid for young men and their families who in good conscience are unable to participate in the war.” Coffin argues further, “[Djraft ‘resistance’ is not a crime; the statute forbids only ‘evasion’ and ‘refusal.’ ”

Examination of the Call shows nothing suggesting it sought to distinguish between “resistance” and “refusal.” It was addressed to laymen, and is to be given a common sense and not a legalistic interpretation. We look, as indeed with any document, to its own clues as to what its subscribers may have intended the words to mean. So doing, we believe a jury would be amply justified in finding that “resist” included that type of resistance which the signers recognized, to use the words of Bond v. Floyd, supra, as “a call to unlawful refusal.” Hence the whole concept of “illegitimate” authority. “[R]efusing to be inducted” must imply an order of induction to be refused. Hence the “heavy penalty” for “resisting openly.” Hence the “need to support families,” since families would not need support if the registrants’ conduct met legal standards. “[Sjanetuary in other countries” scarcely suggests travel authorized by the registrant’s draft board.²⁶

Nor was this a mere factual recital of what others were doing. “Now is the time to resist.” It was at least open to the jury to find that these illicit actions were within what the Call, to use its own word, sought to “encourage;” and that the Call was, to repeat, in the words of the Court in Bond, “a call to unlawful refusal to be drafted.”

This is not to deny that the Call contained many lawful criticisms of the war, lawful adjurations and expressions of sympathy and support for persons who acted illegally, and contemplated conduct of an entirely lawful character. It is also true, as Spock points out, that the Call stated that funds would be used “in whatever ways may seem appropriate.” From this he argues that the persons signing the Call “reserve to themselves the determination of ‘what ways may seem appropriate.’ ” While this may be so, nonetheless the Call on its face indicated that some signers considered the illegal to be the appropriate. Cf. Truax v. Corrigan, 1921, 257 U.S. 312, 327-328, 42 S.Ct. 124, 66 L.Ed. 254. We adopt the description given in the perceptive brief of the Unitarian Universalist Association, amicus on behalf of Ferber. The Call had “a double aspect: in part it was a denunciation of governmental policy and, in part, it involved a public call to resist the duties imposed by the Act.”

The Evidence of Specific Intent

There remains the question whether it could have been found, within the strict test laid down by the cases supra, that the individual defendants personally agreed to employ the illegal means contemplated by the agreement including counselling unlawful refusal to be drafted or other violations of the Selective Service Act. We will begin with Goodman and his affirmative statement regarding counselling contained in “Civil Disobedience,” written by him and signed by Coffin, quoted supra. In describing this paper, Coffin argues, as he did with the Call, that it “cannot be interpreted as a call to unlawful refusal to be drafted.” “One may counsel against conscription by urging the claiming of exemption or deferment * * *. [0]nly counselling of evasion or refusal is unlawful, not counselling of avoidance. Avoidance may be entirely lawful — as by claiming lawful exemption or deferment.” (Emphasis in orig.) This appraisal seems divorced from the realities. No defendant either here or at any time, used the word “avoidance.” There is not even a reference in Civil Disobedience to “exemption or'deferment,” except for an expression of approval of those who voluntarily waive such. Nor does anyone explain the reference to long jail sentences, if “refusing * * * to serve when called” means lawful refusal.²⁷

In addition, Goodman’s remarks at the Washington demonstration were pari passu. There, after referring to the continuing activities of the Resistance in their successful solicitation of “draft resisters,” Goodman stated that those of the older generation were present “because we want specifically to form an alliance with these young men which we will persist in, at least as long as the war lasts, in which we will encourage them and aid and abet and counsel them m every way we know how.” (emphasis suppl.) The ambiguity in the original agreement was clarified, as to Goodman, by his own statements. Because a properly instructed jury could have found Goodman had the requisite specific intent he was not entitled to an acquittal.²⁸

Coffin also signed Civil Disobedience, but if it could be thought that in some manner he is not to be personally charged therewith we quote his remarks at Washington, when it was sought to present turned-in cards to the Attorney General, again, like Goodman, speaking in terms of a joint undertaking.

“The law of the land is clear. Section 12 of the National Selective Service Act declares that anyone ‘who knowingly counsels, aids, or abets another to refuse or evade registration or service in-the armed forces * * * shall be liable to imprisonment for not more than five years or a fine of ten thousand dollars or both.’

“We hereby publicly counsel these young men to continue in their refusal to serve in the armed forces as long as the war in Vietnam continues, and we pledge ourselves to aid and abet them in all the ways we can. This means that if they are now arrested for failing to comply with a law that violates their consciences, we too must be arrested, for in the sight of that law we are now as guilty as they.

“It is a longstanding tradition, sanctioned by American democracy, that the dictates of government must be tested on the anvil of individual conscience. This is what we now undertake to do — not as a first but as a last resort. And in accepting the legal punishment we are, in fact, supporting, not subverting, the legal order.

“Still, to stand in this fashion against the law and before our fellow Americans is a difficult and even fearful thing. But in the face of what to us is insane and inhuman we can fall neither silent nor servile. Nor can we educate young men to be conscientious only to desert them in their hour of conscience. So we are resolved, as they are resolved, to speak out clearly and to pay up personally.” ²⁹

Finally, at the Arlington Street Church ceremony on October 16 Coffin not only spoke but assisted in the collection of draft cards. This participation and assistance could well have been found to be aiding and abetting non-possession.³⁰ Because it was this very type of resistance that the agreement might have been found to contemplate, a properly instructed jury could find that Coffin had the requisite specific intent. The jury was not obliged to view his conduct as he would have it on appeal. Before us he argues, “It is no crime * * * to agree to deliver turned-in draft cards to the Attorney General * * *. [T]his action was completely law-abiding — Rev. Coffin accurately viewed it as the delivery to the law of evidence of a crime.” (emphasis suppl.) We do not think of Coffin as one to run with the hare and hold with the hounds. In any event, he was not entitled to an acquittal.

The principle of strictissimi juris requires the acquittal of Spoek. It is true that he was one of the drafters of the Call, but this does not evidence the necessary intent to adhere to its illegal aspects. Nor does his admission to a government agent that he was willing to do “anything” asked to further opposition to the war. Specific intent is not established by such a generalization. Whatever the reason ³¹ the fact is that his speech was limited to condemnation of the war and the draft, and lacked any words or content of counselling. The jury could not find proscribed advocacy from the mere fact, which he freely admitted, that he hoped the frequent stating of his views might give young men “courage to take active steps in draft resistance.” This is a natural consequence of vigorous speech.

Similarly, Spock’s actions lacked the clear character necessary to imply specific intent under the First Amendment standard. He was not at the Arlington Street Church meeting; in fact he knew nothing of it until afterwards. Although he was at the Washington demonstration he had, unlike Goodman and Coffin, no part in its planning. He contributed nothing, even by his presence, to the turning in of cards. Nor, finally, did his statements in the course of the Washington demonstration extend at all beyond the general anti-war, anti-draft remarks he had made before. His attendance is as consistent with a desire to repeat this speech as it is to aid a violation of the act.

The dissent would fault us for drawing such distinctions, but it forgets the teaching of Bond v. Floyd and other cases that expressing one’s views in broad areas is not foreclosed by knowledge of the consequences, and the important lesson of Noto, Scales and Yates that one may belong to a group, knowing of its illegal aspects, and still not be found to adhere thereto. Viewing the -record as a whole we feel we would be doing poor service to the rule of strictissimi juris, and to the principle that there must be substantial evidence, Yoffe v. United States, 1 Cir., 1946, 153 F.2d 570, and not a mere scintilla, Magnat Corp. v. B & B Electroplating Co., 1 Cir., 1966, 358 F.2d 794, to warrant submitting a case to the jury if we failed to hold Spock entitled to an acquittal.³² Cf. Heilman v. United States, 9 Cir., 1961, 298 F.2d 810.³³

The defendant Michael Ferber presents a different situation. Ferber was a draft-age student. His activities were limited to assisting in the burning and surrender of draft cards. Although he made an address at the Arlington Street Church, it was not counselling draft resistance, or even the surrendering of cards. Not only did he not sign the Call, or the cover letter, or attend the press conference, but the evidence did not warrant a finding that through other statements or conduct he joined the larger conspiracy for which the other defendants were prosecuted. The fact that he made incidental use of the services of some of the other defendants for his own purposes does not mean that he evidenced an attachment to all of theirs. It may be that Ferber engaged in a smaller conspiracy. This does not mean that he should be convicted for the larger one. Daily v. United States, 9 Cir., 1960, 282 F.2d 818. He must be acquitted.³⁴

III

As already stated, we have not fully pursued the question of prejudicial error in the course of trial because, in the exercise of our supervisory power,³⁵ we feel obliged to consider another question, the answer to which occasions no doubt. The district court, sua sponte, put to the jury, in addition to the general issue of guilty or not guilty, ten special questions to be answered “Yes” or “No.” The first was as follows.

“Question No. 1. Does the Jury find beyond a reasonable doubt that defendants unlawfully, knowingly and wilfully conspired to counsel Selective Service registrants to knowingly and wilfully refuse and evade service in the armed forces of the United States in violation of Section 12 of the Military Selective Service Act of 1967?”

The second substituted for the word “counsel” the word “aid,” and the third substituted the word “abet.” The questions then dealt separately, but identically, with “notices of classification” and “registration certificates.” ³⁶ The final question related to a conspiracy “to hinder or interfere with the administration” of the draft law. These questions were phrased without consultation with the defendants, and were objected to as to form — notably, that they linked all defendants together. In view of the fact that this did not prevent the jury from finding one defendant not guilty, we do not pause over such criticism. Nor do we consider the difficulty a jury might have in distinguishing between counsel-ling and aiding, and between aiding and abetting. The ultimate, basic complaint is to the submission of special questions at all, a matter vigorously protested by the defendants at the trial, and here.

The submission of questions to the jury in civil cases is an everyday occurrence. In criminal cases, outside of a special, narrow area, the government is not only without precedent, but faces a formidable array o.f objections. The simplest is that the Federal Rules of Criminal Procedure contain no provision complementing F.R.Civ.P. 49 covering the civil practice. Indeed, as emphasizing this difference, we note that F.R.Crim.P. 23(c) provides for special findings by the judge. While the absence of a rule is not necessarily determinative, particularly in the light of F.R.Crim.P. 57(b),³⁷ it is highly suggestive. See Stein v. New York, 1953, 346 U.S. 156, 178, 73 S.Ct. 1077, 97 L.Ed. 1522; Gray v. United States, 8 Cir., 1949, 174 F.2d 919, 923-924, cert. denied 338 U.S. 848, 70 S.Ct. 90, 94 L.Ed. 519.

Of more substantive importance is the fundamental difference in the jury’s functions in civil and criminal cases. In civil trials the judge, if the evidence is sufficiently one-sided, may direct the jury to find against the defendant even though the plaintiff entered the case bearing the burden of proof. F.R.Civ.P. 50. In a criminal case a court may not order the jury to return a verdict of guilty, no matter how overwhelming the evidence of guilt.³⁸ This principle is so well established that its basis is not normally a matter of discussion. There is, however, a deep undercurrent of reasons. Put simply, the right to be tried by a jury of one’s peers finally exacted from the king would be meaningless if the king’s judges could call the turn.³⁹ Bushel’s Case, 124 Eng.Rep. 1006 (C.P.1670). In the exercise of its functions not only must the jury be free from direct control in its verdict, but it must be free from judicial pressure, both contemporaneous and subsequent. Commonwealth v. Anthes, 1857, 71 Mass. (5 Gray) 185, 209-10; Rex v. Larkin, [1943] K.B. 174; P. Devlin, Trial by Jury 14, 56, 75-91 (3d impr. with addendum, 1966); T. Plucknett, A Concise History of the Common Law 137-38 (5th ed. 1956); Howe, Juries as Judges of Criminal Law, 52 Harv.L.Rev. 582 (1939). Both have been said to result from the submission of special questions.

“It is one of the most essential features of the right of trial by jury that no jury should be compelled to find any but a general verdict in criminal cases, and the removal of this safeguard would violate its design and destroy its spirit.”

G. Clementson, Special Verdicts and Special Findings by Juries, 49 (1905).

“[T]he, submission of special interrogatories, answers to which are to accompany the general verdict * * *. [began as an effort] to catechize a jury as to its reasons * *

Morgan, A Brief History of Special Verdicts and Special Interrogatories, 32 Yale L.J. 575, 592 (1923). See also Walker, The Finality of Jury Verdicts, 118 New L.J. 866, 867-68 (1968). This merges into a more basic reason which the court noted but, because of special circumstances, did not accept, in United States v. Ogull, S.D.N.Y., 1957, 149 F.Supp. 272, 276, affirmed without discussion of this point, sub nom. United States v. Gernie, 2 Cir., 1958, 252 F.2d 664, cert. denied, 356 U.S. 968, 78 S.Ct. 1006, 2 L.Ed.2d 1073,

“To ask the jury special questions might be said to infringe on its power to deliberate free from legal fetters; on its power to arrive at a general verdict without having to support it by reasons or by a report of its deliberations; and on its power to follow or not to follow the instructions of the court. Moreover, any abridgement or modification of this institution would partly restrict its historic function, that of tempering rules of law by common sense brought to bear upon the facts of a specific ease.”

The cogency of this is so felt by Mr. Justice Black and Mr. Justice Douglas that they disapprove of special interrogatories even in civil cases.⁴⁰

We are less concerned by the jury’s possible fear of subsequent criticism with respect to special findings than we are with the subtle, and perhaps open, direct effect that answering special questions may have upon the jury’s ultimate conclusion. There is no easier way to reach, and perhaps force, a verdict of guilty than to approach it step by step. A juror, wishing to acquit, may be formally catechized. By a progression of questions each of which seems to require an answer unfavorable to the defendant, a reluctant juror may be led to vote for a conviction which, in the large, he would have resisted. The result may be accomplished by a majority of the jury, but the course has been initiated by the judge, and directed by him through the frame of the questions.

It may be said that since the law should be logical and consistent, if the questions were proper in substance this would be a desirable rather than an undesirable result. We agree, however, with the distinction made by L. Hand, J., concurring in Skidmore v. Baltimore & O. Ry., 2 Cir., 1948, 167 F.2d 54, 70, cert. denied, 335 U.S. 816, 69 S.Ct. 34, 93 L.Ed. 371, when speaking in favor of special verdicts in civil cases.

“I should like to subject a verdict, as narrowly as was practical, to a review which should make it in fact, what we very elaborately pretend that it should be; a decision based upon law. In criminal prosecutions there may be, and in my judgment there are, other considerations which intervene to make such an attempt undesirable.”

Uppermost of these considerations is the principle that the jury, as the conscience of the community, must be permitted to look at more than logic. Indeed, this is the principle upon which we began our discussion. If it were otherwise there would be no more reason Wjhy a verdict should not be directed against a defendant in a criminal case than in a civil one. The constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly. See Morris v. United States, 9 Cir., 1946, 156 F.2d 525.

In this circumstance, the government makes two answers. The first is that in a small number of criminal cases special findings have been permitted. No useful purpose would be served by discussing these cases; they are distinguishable.⁴¹ In all, because of the exigencies of the particular case, the special findings had the purpose of benefiting the defendant. In none did the defendants object.41½ It is elementary that a defendant, properly advised, may waive even fundamental rights. See Killilea v. United States, 1 Cir., 1961, 287 F.2d 212, 215-216, cert. denied, 366 U.S. 969, 81 S.Ct. 1933, 6 L.Ed.2d 1259. No such special circumstances existed in the case at bar, nor did the defendants think so.

Nor is it an answer that these questions were labelled special findings and not special verdicts, and that the jury was informed that they were to be answered only if a general verdict of guilty had been reached. It cannot be assumed that a jury would scrupulously adhere to such chronology even if, as the government contends, the charge as a whole could be taken as instructing the jury that this was the proper order of procedure. Rather, it would have been natural, in case the jury found itself in doubt, to do the reverse. Particularly would this be so when the court’s last remark on this subject was, “These special questions, members of the jury, will help to inform you as to the issues involved in this case.” The jury could well take this as an invitation, not a proscription.

We are not necessarily opposed to new procedures just because they are new, but they should be adopted with great hesitation. Cf. Gray v. United States, supra, at 924 (“It is not the function of the courts subordinate to the Supreme Court to introduce innovations of criminal procedure.”). It takes but little imagination to see that the present case should be the last, rather than the first, to embark upon a practice of submitting special jury findings in a criminal case along with the general issue for no significant reason.⁴² Here, whereas, as we have pointed out, some defendants could be found to have exceeded the bounds of free speech, the issue was peculiarly one to which a community standard or conscience was, in the jury’s discretion, to be applied. Cf. Wigmore, A Program for the Trial of Jury Trial, 12 Am.Jud. Soc.J. 166, 170-71 (1929). Whether we agree with defendants’ position or not, this was not a case to be subjected to special limitations not sanctioned by general practice. We must hold the court’s action to be prejudicial error.

The verdicts are set aside, and the judgments vacated. Judgments are to be entered for the defendants Spock and Ferber, and a new trial is ordered for the defendants Goodman and Coffin.

1 . A fifth defendant was acquitted, and will not be further referred to.

2 . In addition, considerable evidence was introduced of Spook’s participation in a sit-in in front of the Whitehall induction center in New York City. We will assume with the defendants and now, apparently, the government as well, that this was token activity and protected political expression. See Brown v. Louisiana, 1966, 383 U.S. 131, 141-142, 86 S.Ct. 719, 15 L.Ed.2d 637; but cf. Adderley v. Florida, 1966, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149; Cox v. Louisiana, 1965, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487. Because of our resolution of tlie case on other grounds we need not pursue this matter, or explore the possibility of prejudice arising from the introduction of this evidence.

3 . Hereinafter, without distinction, draft cards.

4 . We do not understand the government to interpret 50 App. U.S.C. § 462(a) to cover hindering or interfering with the nonrecruitment activities of the armed services. Such action would be criminal under the Espionage Act, 18 U.S.C. §§ 2387, 2388(a), 2391.

5 . The brief of the Unitarian Universalist Association, amicus, is the only one which envisages that, although the defendants may have committed illegal acts, their conviction might impermissibly affect First Amendment rights of third parties. In considering this matter we are not troubled by questions of standing. Compare Dombrowski v. Pfister, 1965, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22, with United States v. Raines, 1960, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524.

6 . Because of the identity of surname with one of the defendants, we will hereafter refer to Judge Coffin simply as the dissent.

7 . In Direct Sales Co. v. United States, 1943, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674, for example, the agreement was embodied in catalogues widely distributed through the mails, and in order blanks the form of which was prescribed by the Secretary of the Treasury and which were, by law, retained for government inspection. Indeed, periodic reports, some monthly, some weekly, were made by Direct Sales to the government disclosing the names of purchasers and the amounts of purchases. The dissent supports its attachment to overtness with a dictum by Mr. Justice Harlan in Grunewald v. United States, 1957, 353 U.S. 391, 402, 77 S.Ct. 963, 972, 1 L.Ed.2d 931 (“every conspiracy is by its very nature secret”). With great respect to the Justice, this was a somewhat casual remark in a case dealing with a plainly illegal conspiracy, and is erroneous, as even the dissent’s citations demonstrate. We may be pardoned for observing that more affection seems to be exhibited for this dictum than for some of the Justice’s holdings in connection with agreements that are partly legal and partly not.

8 . Other eases in which the conspiracy itself was to a large degree public include Wells v. United States, 9 Civ., 1919, 257 F. 605 (meetings, apparently public, and circulars widely distributed demanding “Resist! Refuse!”); Haywood v. United States, 7 Cir., 1920, 268 F. 795, cert. denied 256 U.S. 689, 41 S.Ct. 449, 65 L.Ed. 1172; Anderson v. United States, 8 Cir., 1921, 273 F. 20, cert. denied 257 U.S. 647, 42 S.Ct. 56, 66 L.Ed. 415; United States v. Gordon, 7 Cir., 1943, 138 F.2d 174, cert. denied 320 U.S. 798, 64 S.Ct. 266, 88 L.Ed. 481. See also Pierce v. United States, 1920, 252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 542; Schenck v. United States, 1919, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470.

9 . Neither can the claim that the conspiracy was “non-cohesive.” If any cohesive motive be thought necessary where there already was a written document, cf. Interstate Circuit, Inc. v. United States, 1939, 306 U.S. 208, 222, 59 S.Ct. 467, 83 L.Ed. 610, there was ample common purpose here. The dissent’s emphasis upon “discipline” again confuses means and result. Discipline may be needed for a secret conspiracy in order to keep it secret. The thrust of conspiracy, however, is in the agreement for joint action, not in the method of accomplishing it.

10 . The “general principle [is] that society, having the power to punish dangerous behavior, cannot be powerless against those who work to bring about that behavior.” Scales v. United States, 1961, 367 U.S. 203, 225, 81 S.Ct. 1469, 1484, 6 L.Ed.2d 782.

11 . “Throughout our decisions there has recurred a distinction between the statement of an idea which may prompt its hearers to take unlawful action, and advocacy that such action be taken.” Justice Frankfurter concurring in Dennis v. United States, 1951, 341 U.S. 494, 545, 71 S.Ct. 857, 885, 95 L.Ed. 1137, quoted in Yates v. United States, 1957, 354 U.S. 298, 322, 77 S.Ct. 1064, 1 L.Ed.2d 1356, and again in Noto v. United States, 1961, 367 U.S. 290, 297, 81 S.Ct. 1517, 6 L.Ed.2d 836. Cf. Gitlow v. New York, 1925, 268 U.S. 652, 673, 45 S.Ct. 625, 69 L.Ed. 1138 (Holmes, J., dissenting) (“Every idea is an incitement.”)

12 . The occasionally asserted judicial hostility to conspiracy prosecutions, Krulewitch v. United States, 1949, 336 U.S. 440, 445, 69 S.Ct. 716, 93 L.Ed. 790 (Jackson, J., concurring) ; United States v. Falcone, 2 Cir., 1940, 109 F.2d 579, 581, aff’d, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128, springs largely from the government’s overenthusiastic use of some of the procedures of conspiracy law rather than from a rejection of the public interest served by that law. Indeed, Justice Jackson, author of the Krulewitch concurrence, noted in Dennis v. United States, 341 U.S. at 577, 71 S.Ct. at 901: “There is no constitutional right to ‘gang up’ on the Government.”

13 . The issue may perhaps be more objectively considered if we approach it in terms other than the present case where it may be easy to sympathize with many of the defendants’ aims and be tempted to overlook, as incidental and peripheral, the illegal aspects of some of the means. It is not difficult to visualize conspirators whose basic ends are plainly illegal but who color them in order to obtain needed support of others, innocent and well intentioned, by adding lawful and popular objects.

14 . “I have never suggested or counseled or advocated that any one other person burn their draft card. In fact, I have mine in my pocket and will produce it if you wish. I do not advocate that people should break laws. What I simply try to say was that I admired the courage of someone who could act on his convictions knowing that he faces pretty stiff consequences.” 385 U.S. at 134, 87 S.Ct. at 348.

15 . See generally, Richardson, Freedom of Expression and the Function of Courts, 65 Harv.L.Rev. 1 (1951).

16 . We note Spock’s candid statement that direct urging of draft violations would in his opinion be “poor psychological practice.”

17 . Justice Harlan noted in Scales, 367 U.S. at 229, 81 S.Ct. at 1486, “[A] technical conspiracy * * * is defined by its criminal purpose, so that all knowing association with the conspiracy is a proper subject for criminal proscription as far as First Amendment liberties are concerned.” (emphasis in the original). See United States v. Borelli, 2 Cir., 1964, 336 F.2d 376, 384-385, cert. denied Cinquegrano v. United States, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555; United States v. Falcone, 2 Cir., 1940, 109 F.2d 579, 581, aff’d 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128; United States v. Peoni, 2 Cir., 1938, 100 F.2d 401; Developments in the Law — Criminal Conspiracy, 72 Harv.L.Rev. 920, 925-27 (1959).

18 . The Court said in Scales, 367 U.S. at 229-230, 81 S.Ct. at 1486, “Thus the member for whom the organization is a vehicle for the advancement of legitimate aims and policies does not fall within the ban of the statute: he lacks the requisite specific intent ‘to bring about the overthrow of the government as speedily as circumstances would permit.’ Such a person may be foolish, deluded, or perhaps merely optimistic, but he is not by this statute made a criminal.” See also Elfbrandt v. Russell, 384 U.S. at 15-17, 86 S.Ct. 1238.

19 . Accord, Hellman v. United States, 9 Cir., 1961, 298 F.2d 810. See also Nowak v. United States, 1958, 356 U.S. 660, 665-668, 78 S.Ct. 955, 2 L.Ed.2d 1048; Hartzel v. United States, 1944, 322 U.S. 680, 686-687, 64 S.Ct. 1233, 88 L.Ed. 1534; United States v. Tramaglino, 2 Cir., 1952, 197 F.2d 928, 930-931, cert. denied 344 U.S. 864, 73 S.Ct. 105, 97 L.Ed. 670; cf. United States v. Bruno, 2 Cir., 1939, 105 F.2d 921, rev’d on other grounds, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257.

20 . We do not believe that section 462(a) is overbroad or vague. See Gara v. United States, 6 Cir., 1949, 178 F.2d 38, aff’d by an equally divided court, 340 U.S. 857, 71 S.Ct. 87, 95 L.Ed. 628; Warren v. United States, 10 Cir., 1949, 177 F.2d 596, cert. denied 338 U.S. 947, 70 S.Ct. 485, 94 L.Ed. 584; Kiyoshi Okamoto v. United States, 10 Cir., 1945, 152 F.2d 905, 906-907; cf. Singer v. United States, 1945, 323 U.S. 338, 65 S.Ct. 282, 89 L.Ed. 285. A special obligation exists as to federal statutes to construe them so to avoid unconstitutionality, Scales v. United States, supra, so long as such does not result in substantial re-writing. See Aptheker v. Secretary of State, 1964, 378 U.S. 500, 515-516, 84 S.Ct. 1659, 12 L.Ed.2d 992. The fact that a seemingly normal criminal statute, by virtue of its prohibition of conspiracy and crime counselling, may in some instances apply to affect freedom of association or freedom of speech does not invalidate the statute. See United States v. O’Brien, 1968, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672. The court’s obligation is, rather, to make sure that such a statute does not improperly infringe upon speech in any particular instance. See, e. g., Street v. New York, U.S., April 21, 1969, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572. Nor do we believe the indictment failed in its function of informing the defendants of the crime with which they were charged. See Wong Tai v. United States, 1927, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545.

21 . Because we are discussing only the evidence of an agreement, the government’s vacillation about which part of the evidence it relied on cannot, without some special showing, be taken to have prejudiced the defendants. On the contrary, the government is entitled to rely on whatever agreement is shown by the evidence. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680. The defendants do not destroy the government’s ease by themselves showing a somewhat different but equally illegal agreement.

22 . The Call and the cover letter are reproduced in full in an appendix hereto.

23 . See also n. 9, supra. By the same token, nothing is taught hy the frequently stressed fact that the signatories were in many instances persons of prominence, or that, apart from their common opposition to the war and to the draft, they were of disparate backgrounds and interests. See United States v. Lester, 3 Cir., 1960, 282 F.2d 750, 752-753, cert. denied 364 U.S. 937, 81 S.Ct. 385, 5 L.Ed.2d 368; Carbo v. United States, 9 Cir., 1963, 314 F.2d 718, 734, cert. denied Palmero v. United States, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498.

24 . In Frania the court said, 255 F. at 34, “This case is one of the simplest instances of proper proof in limine of combination ever brought to a court’s attention. If, as per advertisement, an audience is gathered before a platform containing intending speakers, and is called to order by a chairman, who announces the object of the gathering, again, as per advertisement, it is impossible not to infer a combination in thought among the platform occupiers and their helpers.” The rule of striolissimi juris may well require greater proof today of a defendant’s specific intent, but in distinguishing Fraina on this ground the dissent confuses consensual principles with the ascertainment of what was consented to. The principles remain. See Yates v. United States, supra, 354 U.S. at 333, 77 S.Ct. 1064.

25 . Bozza v. United States, 1947, 330 U.S. 160, 165, 67 S.Ct. 645, 91 L.Ed. 818; Glasser v. United States, supra n. 21; White v. United States, 9 Cir., 1968, 394 F.2d 49, 53.

26 . The Call, which was printed as a paid advertisement in two national publications, and circulated separately, underwent a few changes. In all instances in describing “forms of resistance” it stated, “[a]mong those already in the armed forces some are refusing to obey specific illegal and immoral orders.” In some editions it added, “some are absenting themselves without official leave.” Neither of these methods connotes legal resistance.

27 . Additionally, we note tliat defendant Goodman’s printed statement at the October 2 press conference contained the following: “The activity of the Resistance groups will be continuing beyond October 16, as more draft refusers come forward. It is our intention to parallel that development with continuing private and public activity in support of them.” (Emphasis suppl.).

28 . Were it necessary to go any further, the Washington demonstration, planned by Goodman and Coffin, completed the surrender of draft cards; those who “surrendered” them at the Arlington Street Church having been told that they had a right of recall. This act, of course, was not mere speech, and could be found to satisfy the requirement of a “course of conduct clearly undertaken for the specific purpose of rendering effective” the illegal objects of the agreement. Scales v. United States, 367 U.S. at 234, 81 S.Ct. 1469.

29 . In spite of this final remark, made then and at other times, by both Coffin and Goodman, they argue now that they were not guilty if they believed that their actions were legal and that any conviction would be unconstitutional. For this they cite Keegan v. United States, 1945, 325 U.S. 478, 65 S.Ct. 1203, 89 L.Ed. 1745. The opinions there, however, are far from clear as to the extent of such a principle; nor have other courts reached a consensus. Compare Holdridge v. United States, 8 Cir., 1960, 282 F.2d 302, 310-311, and Kiyoshi Okamoto v. United States, 10 Cir., 1945, 152 F.2d 905, with Lantis v. United States, 9 Cir., 1950, 186 F.2d 91, 92-93, and Warren v. United States, 10 Cir., 1949, 177 F.2d 596, 600, cert. denied 338 U.S. 947, 70 S.Ct. 485, 94 L.Ed. 584. A defendant’s motive in testing an act might properly go to sentence, but these defendants are contending that, having violated the statute, they should, in effect, be subject only to a riskless declaratory judgment. No such purpose was made known until the defendants reached .the courtroom. Before that time, they publicly asserted that they were placing their own necks on the block. They should not now be heard to say that no axe was involved.

30 . Willful nonpossession of a draft card is criminal. O’Brien v. United States, 1 Cir., 1967, 376 F.2d 538, rev’d on other grounds, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672. One “who contributed consciously to furthering that illicit enterprise aided and abetted its commission.” United States v. Johnson, 1943, 319 U.S. 503, 515, 63 S.Ct. 1233, 1239, 87 L.Ed. 1546. Accord, United States v. Williams, 1951, 341 U.S. 58, 64, 71 S.Ct. 595, 95 L.Ed. 747; Nye & Nissen v. United States, 1949, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919; see also United States v. Peoni, 2 Cir., 1938, 100 F.2d 401. Coffin was not merely present in the church, Hicks v. United States, 1893, 150 U.S. 442, 449—450, 14 S.Ct. 144, 37 L.Ed. 1137; Long v. United States, 1966, 124 U.S.App.D.C. 14, 360 F.2d 829, 835, he was an active, knowing participant. Wyatt v. United States, 10 Cir., 1968, 388 F.2d 395; Moore v. United States, 5 Cir., 1966, 356 F.2d 39 ; cf. United States v. Manna, 2 Cir., 1965, 353 F.2d 191, cert. denied, 384 U.S. 975, 86 S.Ct. 1868, 16 L.Ed.2d 685.

31 . See n. 16, supra.

32 . This, too, dissatisfies the dissent, which is unhappy whatever we do. Viz., because we recognize the necessity of special protection, thereby letting some defendants go free, we should not punish conspiracies in the field of speech at all; it is improper to apply the Scales and Noto safeguard because it is not strict enough; here we have applied it too strictly. Continuing with Ferber, infra, this conspiracy is too broad, it might have been proper to prosecute Ferber for a conspiracy limited to the Arlington Street Church matter; it is over-generous not to regard Arlington Street as a joining of the larger conspiracy. Basically, all this means is that the dissent refuses to draw distinctions.

33 . A similar situation involving a demonstrably active, as opposed to passive, participant in a bifarious organization, was faced in Heilman v. United States, supra note 19. While “Heilman was an exceedingly active member of the I’arty,” 298 F.2d at 813, the court found that there was insufficient proof, given a strictissimi juris standard, to show specific intent to further the I’arty’s illegal, as opposed to legal, methods. “[T]he activity portrayed is explainable on the basis that he intended to bring about the Party’s ultimate goals through peaceable means.”

34 . The government has not raised the point, nor do we see independently any reason to suppose that a new trial would result in a stronger case for the government. Cf. Yates v. United States, supra, at 328, 77 S.Ct. 1064; United States v. Johnson, supra.

35 . McNabb v. United States, 1943, 318 U.S. 332, 340-341, 63 S.Ct. 608, 87 L.Ed. 819; Thomas v. United States, 5 Cir., 1966, 368 F.2d 941, 947; Delaney v. United States, 1 Cir., 1952, 199 F.2d 107; see also Note: The Supervisory Power of the Federal Courts, 76 Harv.L.Rev. 1656 (1963).

36 . Although no prejudice is apparent we can see no reason for individual treatment of “notices of classification” and “registration certificates.” It is true that these documents are listed separately in the statute and in the indictment, hut the record discloses no basis for distinction.

37 . “If no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules or with any applicable statute.”

38 . United Brotherhood of Carpenters and Joiners of America v. United States, 1947, 330 U.S. 395, 408, 67 S.Ct. 775, 91 L.Ed. 973; Sparf v. United States, 1895, 156 U.S. 51, 105-106, 15 S.Ct. 273, 39 L.Ed. ; Compton v. United States, 8 Cir., 1967, 377 F.2d 408, 411; Edwards v. United States, 5 Cir., 1960, 286 F.2d 681, 683; United States v. Taylor, C.C.D.Kan., 1882, 11 F. 470, 474.

39 . Indeed, under our law a jury’s verdict, representing the common sense and wisdom of the community, is so highly regarded that the government' itself may insist on trial by jury rather than trial hy judge. Singer v. United States, 1965, 380 U.S. 24, 36, 85 S.Ct. 783, 13 L.Ed.2d 630.

40 . “Such devices are used to impair or wholly take away the power of a jury to render a general verdict. One of the ancient, fundamental reasons for having general jury verdicts was to preserve the right of trial by jury as an indispensable part of a free government. Many of the most famous constitutional controversies in England revolved around'litigants’ insistence, particularly in seditious libel cases, that a jury had the right to render a general verdict without being compelled to return a number of subsidiary findings to support its general verdict. Some English jurors had to go to jail because they insisted upon their right to render general verdicts over the repeated commands of tyrannical judges not to do so. Buie 49 is but another means utilized by courts to weaken the constitutional power of juries and to vest judges with more power to decide cases according to their own judgments.”

Statement of Mr. Justice Black and Mr. Justice Douglas on the Rules of Civil Procedure and the Proposed Amendments, 31 F.R.D. 617, 618-619 (1963).

41 . There are only two classes of cases in which such findings have been used. First, in certain cases the determination of a particular fact will be crucial to sentencing the defendants, as, for example, which of the several objects of a conspiracy, some felonies, some misdemeanors, the defendant agreed to, or the duration of a defendant’s participation in a conspiracy. United States v. Sobell, 2 Cir., 1963, 314 F.2d 314, 329 n. 12, cert. denied, 374 U.S. 857, 83 S.Ct. 1906, 10 L.Ed.2d 1077; Continental Baking Co. v. United States, 6 Cir., 1960, 281 F.2d 137, 155; Williams v. United States, 5 Cir., 1956, 238 F.2d 215, 218-220, cert. denied, 352 U.S. 1024, 77 S.Ct. 589, 1 L.Ed.2d 596; United States v. Haim, S.D.N.Y., 1963, 218 F.Supp. 922; United States v. Simon, S.D.N.Y., 1960, 186 F.Supp. 223; United States v. Ogull, S.D.N.Y., 1957, 149 F. Supp. 272, affirmed, without discussion of this point, sub nom., United States v. Gernie, 2 Cir., 1958, 252 F.2d 664, cert. denied, 356 U.S. 968, 78 S.Ct. 1006, 2 L.Ed.2d 1073. Second, in treason cases the finding of an overt act is specifically required by the federal constitution. U.S. Const, art. III, § 3; Kawakita v. United States, 1952, 343 U.S. 717, 72 S.Ct. 950, 96 L.Ed. 1249, aff’g 190 F.2d 506, 9 Cir., 1951, aff’g 96 F.Supp. 824, S.D.Cal., 1950; United States v. Best, D.Mass., 1948, 76 F.Supp. 138, 857, conviction aff’d 184 F.2d 131, 1 Cir., 1950, cert. denied, 340 U.S. 939, 71 S.Ct. 480, 95 L.Ed. 677; United States v. Chandler, D.Mass., 1947, 72 F.Supp. 230, conviction aff’d 171 F.2d 921, 1 Cir., 1948, cert. denied, 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081. See also Haupt v. United States, 1947, 330 U.S. 631, 641 n. 1, 67 S.Ct. 874, 91 L.Ed. 1145; Cramer v. United States, 1945, 325 U.S. 1, 36 n. 45, 65 S.Ct. 918, 89 L.Ed. 1441.

. Since the release of this opinion our attention has been called to the case of Commonwealth v. Bartholomew, 1950, 326 Mass. 218. There the court, without deciding whether it was error to submit “specific questions of fact” to be answered by a jury in a criminal case, held that the court’s submission in that particular instance over the defendants’ objection had not been prejudicial. In passing we will say that this was a finding more easily reached there than here, and that in the case at bar we could not make it. But, more fundamentally, we do not think it desirable to treat this issue by weighing subjective prejudice; to some extent the pressure is always present. In all of the cases cited in Bartholomew as involving special verdicts, the most that occurred was that the jury, sua sponte, announced a find-, ing of fact. While citing the leading case of Commonwealth v. Anthes, 1855, 5 Gray (71 Mass.) 185, for the proposition that although a jury “may return a special verdict, they are not bound to do so,” the court did not note that the question had arisen only in that limited context. Sua sponte special findings, in our opinion, are very different from findings requested by the court.

42 . If the procedure was, as we hold, prejudicial to the rights of the defendants, it is not saved by the propriety of the court’s motive, doubtless a strong one in this particular case where difficult legal issues were involved, cf. Yates v. United States, supra, of avoiding an appellate court’s dilemma due to ignorance of what theory the jury based its verdict upon. Stromberg v. California, 1931, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117. Assuming this to be proper, as to which we express no final opinion, it could have been accomplished by sending the jury out to answer special questions after it had returned its general Verdict.