Theodore Rothstein

Theodore Rothstein

In venturing to approach the above subject I do not think I need offer any apology for adding one more name to the long roll of those who from the time of Plato down to our own have made attempts to grapple with it, and for hoping - as, in fact, every earnest writer is in conscience bound to hope - to succeed where my predecessors have failed. The problem is one of profoundest interest and importance to mankind; indeed, throughout the entire range of human life and thought we can hardly find another which has stirred so deeply the passions of men and baffled so completely the work and wisdom of ages; but this, if at all taken as a measure of our attitude towards it, ought rather to serve as an incitement to our efforts and bid welcome to every endeavour, however small, humble, and obscure, than deter us from any further attempt in this direction. And especially is it so at this very moment. We are on the eve of a great social upheaval; on the rising waves of the transition tide our boat is being tossed to and fro, and sharp must be the eye and firm the hand of the steersman who wants to land in the quiet harbour. Our ethical consciousness is put under the severest strain; there is a wide discrepancy between it and the stern reality of fact, and unless we keep our heads clear and possess nerve enough, we may wreck our frail vessel of life on the cliffs and treacherous sands of moral wrong....

In no other domain, however, is this discrepancy greater, and conse­quently felt more acutely, than in that of the right and ought of sexual rela­tions. We have outgrown by now the old conception handed down to us by ascetic Christianity which regarded those relations as in themselves sinful and unholy, and come to recognise the truth that sex-love is an organic want and function, having the same right to satisfaction and exercise as any other in the physiological equipment of man. Even more; with the advent of a new morality which proclaimed the full and healthy development of our entire physical and spiritual nature to be the supreme good to be worked and striven for, the suppression of the sexual impulse has become in the eyes of men a thing as odious as it was before virtuous. No person, says our new conception of life, on reaching maturity can be held in duty bound to eliminate that important item of his nature; more than that, he has no right to do so if he ever wishes to live a life rich in all human experience - that is, to live an ethical life. But how is this to be achieved? How is this to be realised? Happy the man or woman who meets in his or her life-course some one to their liking But what of the rest? There are thousands upon thousands in every rank and class of society who for some reason or other are condemned to walk their life long in lonely paths, standing little or no chance of ever meeting one to love and be loved by, and of tasting to the full of the cup of human happiness. What about them? Are they destined to play the part of children disinherited by blind and cruel mother Nature, or may they fight for their birthright by some other means? What are they to do? Their right to sexual happiness is absolute; is their ought also absolute in the sense of furnishing a complete justification for every and any means they might use with a view of asserting that right? May they, for instance, have recourse to prostitution - apart from any humanitarian consideration attached to it - in case their physio­logical need cries for satisfaction? Or, if this be not allowed, can, say, mutual consent or mutual respect form the basis on which the sexual impulse may find its opportunity for realisation?

Such are the questions that beset the modern man standing on the threshold of the twentieth century. They are no more academical than life itself. Children of reality, creatures of the time, they have been called forth by the rise of a new ethical ideal to which the present state of things lends no hope of ever being attained. As such, they stand and wait and implore and press for an immediate answer. What, then, is that answer to be? How are we going to realise the physiological and moral requirement of an emancipated sexual life under conditions which give a favourable chance but to a selected few?

Plehve assassinated, and not a word of regret even from the Liberal Press of this country. For once the Nonconformist conscience forgot its thrill of horror and, in the teeth of the traditional de mortuis nil nisi bonum, declared drily and uncharitably: It serves him right. It is, indeed, a monster "dripping blood from every pore" that has been removed from the stage of modern history. He it was who acted as the "examining magistrate" in the case of Zhelyabov, Perovskaya and the others who had taken part in the assassination of Alexander; he it was, who as the Assistant Minister of the Interior diabolically conceived and carried out the anti-Jewish outrages in Southern Russia in 1881 and 1882; he it was who, as the Secretary of State for Finland, by a single stroke of the pen suppressed in 1899 the constitutional liberties of that country, solemnly guaranteed, as they were, by treaty and by the oath of the Czar; he it was who, on being appointed, in 1902, Minister of Interior in the place of the Sipiaguine, shot by Balmashov, at once introduced a regime which resulted in the ruthless suppression of the peasant disturbances of the Kharkov and Poltava provinces, in the flogging of May demonstrators at Wilna, in the wholesale murder at Zlatoust, and in the barbarous treatment of strikers at Tiflis, Baku, and Ekaterinoslaff; lastly, he it was, who was directly responsible for the horrors of Kishineff and Gomel - horrors that remind one of the darkest period of the Middle Ages. If to this be added the number­less other outrages and acts of terrorism com­mitted against various public bodies as well as single individuals who in any way dared to assert their independence of speech or thought, we may well say that there is in modern times but one name that is worthy to rank along with his, and that is the Duke of Alva. Blood at the beginning, blood at the end, blood throughout his career - that is the mark Plehve left behind him in history. He was a living outrage on the moral consciousness of mankind, a sort of a yahoo who incorporated in him all that is bestial and fiendish in human nature; and no wonder the world breathed freely when at last he has been removed.

Still it is not merely from the moral side that Plehve is to be judged. Plehve was both the product and the representative of a political system, and it is in that light that his career and personality acquire their historical significance. What must be that system which produces and places in its centre, as its main driving force, a monster such as Plehve was? The civilised world whose vision has been cleared by the events in the Far East, passed a judgment on that system at the same time that it passed it on Plehve: the system is rotten if its only strength lies in the executioner's arm. It is, indeed, the consciousness of this fact more than anything else that has guided the attitude of the capitalist press towards the assassination of Plehve; and this in itself constitutes a sinister mene mene to the absolutist régime in Russia.

Of course, it is not by political assassinations that freedom will be established in that great and unhappy country. You cannot exterminate vermin unless you change the conditions which favour its existence and reproduction. By exterminating individual specimens of it you merely substitute two living ones for one killed, whilst at the same time running the risk of neglecting and delaying the more important work. Political assassinations are mainly valuable from a moral point of view, as showing that there is still life and sense of human dignity in the down-trodden nation. They are thus a sort of vindication of national honour - precious tokens of a great future. But free­dom itself will have to be won by other means - by the people at large fighting the system itself. Our Social-Democratic comrades in Russia are precisely engaged in this kind of work, and it is to them mainly that we look for the final onslaught on the moribund autocracy. In the meantime, we may well be thankful for having got rid of the most brutal instrument of that system; another such will not be easily found.

Henceforth the Socialist movement in Russia became a political movement – a movement for the overthrow of the autocracy. What were its methods? Naturally those that were dictated by the then-prevailing “Social-Slavophil” conceptions. If the Russian people are born communists and democrats, then autocracy has really no root in the national soil and can be overthrown by a few well-aimed blows. But from whom should these blows proceed? From the people? But experience has shown that it is very difficult to make it rise – nay, that it is very difficult to carry on a propaganda amongst it for that purpose on account of the very same “external power” which it is proposed to remove. Should the blow proceed from the town proletariat? According to the teachings of Marx that would have just been the proper class which could take upon itself that work. Unfortunately, it can scarcely be said to exist. Who, then, should engage in a fight with the autocracy? Well, there is only one class which could do it, and that is the very same class which had carried before the gospel of discontent to the people – the revolutionary educated youth. They are few in numbers, it is true, but they can adopt the methods of conspiracy, and for that large numbers are not required.

Thus arose the “terror” – that dramatic duel between a handful of conspirators and the powerful autocracy, which filled with astonishment the whole world. We know how it ended. After a series of attempts, each more daring than the other, the party made a supreme effort and delivered its most tremendous blow. Now or never, everybody thought, and it was – never! Why? Did the party become exhausted, as some say, or were the Liberal classes too cowardly to come forward and demand a Constitution, as others assert? Both these reasons were true, but they were true because autocracy was not such a rootless growth, as it was supposed, and has revealed itself as such at the very moment when it was apparently stabbed in its very heart. Autocracy was but the political complement of the social order which lay at the base of Russian society, and no sooner was one of its heads struck off than another grew instantly in its place. There is in social organisms, as much as in natural, an inexhaustible fountain of creative power, and so long as their structure remains unchanged, the same growths will appear one after the other, much as you may try to stop them.

We thus arrive at the beginning of the eighties. Consider the situation – the People’s Will Party lying on the ground broken and exhausted, reaction rampant, all that was but a short time ago hopeful, disheartened and embittered. Where shall we turn for light and guidance? To the people? It is mute. To the working-class? There is none. To the educated classes? They are all full of pessimism in the consciousness of their weakness. What, then, next? Is all hope to be given up? Is there no salvation for Russia? At this moment of darkness and despair a new and strange voice resounds through the space – a voice full of harshness and sarcasm, yet vibrating with hope. That is the voice of Russian Social-Democracy.

From whom did it proceed? From a handful of political refugees on the banks of the Geneva lake. And what did it announce? It announced that all this talk of a special destiny and mission of Russia is sheer nonsense, that Russia will have to go exactly the same way as other nations, that she will neither be spared her capitalism nor the proletarisation of her masses: that the village community, so far from being able to develop into a “form of the future,” is, on the contrary, the most formidable obstacle in the way of social and political progress; that, for the rest, it already disintegrates – and that rapidly – under the pressure of economic changes introduced by the first acts of capitalism; that salvation is only to be expected from the proletariat acting in its own class interests; and that, lastly, this salvation will not be the social revolution, but will take the shape of an ordinary humdrum “bourgeois” political freedom! We can imagine what a courage it was required to throw in the teeth of all tradition and all the then-prevailing views such heterodox opinions, and that, too, with an unheard-of strength and tone of certainty. We can also imagine what a storm of indignation they aroused – especially as they came at a moment when the traditional creed was doubly dear now that the enemy had outraged it. What – rang the universal cry – Russian Social-Democracy? But a more ridiculous idea could not have been born in a human brain. Social-Democracy presupposes a proletariat; and where is the Russian proletariat? It is simply an attempt on the part of some doctrinaires to transplant to the Russian soil a growth which is totally foreign to it. Or is it something still worse than that? Is it, perhaps, a move on the part of the bourgeois ideologists who wish to sweep away our ancient foundations of life – the village community and the rest, in order to make room for capitalism? It looks like it. We have no capitalism at present and no proletariat; consequently, those who wish for the latter must wish for the former. Our so-called Social-Democrats are, therefore, nothing more than knights-errant of capitalism – heroes of “primitive accumulation,” social enemies of the Russian people. They do not want Socialism – they merely want a political constitution which should give the power to the bourgeoisie. No, a thousand times, no! Our village community is our most precious national treasure, and we shall not give it up for the greater glory of capitalism and of a German doctrine!

In this and similar strain the case was “argued” against Social-Democracy, and there was no more odious name at the time than that of a Social-Democrat. In vain did the latter point out that what opponents were accusing them of aiming at is actually taking place irrespective of anybody’s wishes – that, for instance, capitalism, in the shape of the usurer, middleman, & c., is irresistibly making its inroads into the very heart of the village community; that the peasantry is becoming more and more ruined every day; that the social cleavage amongst it is daily becoming more and more pronounced; that the masses, in consequence, are at an ever-accelerating pace undergoing the process of proletarisation; that the village community itself is no longer a community, but an instrument in the hands of the State and the local capitalists to keep in subjection the poorer peasants; that, so far from the proletarisation of the masses wiping out from their minds democratic and communistic ideals, it, on the contrary, frees their individuality from the trammels of patriarchalism and makes them susceptible to a higher political and social ideal. In vain, we say, did the Social-Democrats point this all out and invite their opponents to cast off the old chimerical and essentially reactionary dreams and instead look reality straight in the face, and base on that reality their socio-political activity. The opponents would not listen, they would continue to reiterate their ancient shibboleths and cast showers of abuse on the heads of the “disciples.”

Thus the controversy dragged on for a number of years. The old “Populists” would show by black and white that capitalism has no future before it in Russia, since all the markets of the world are already taken up by the other nations. They would also show statistically that the number of workers is insignificant and has no chance of growing. They would lastly taunt their opponents with fatalism and declare that their hopes of the future condemns them to inactivity. The Social-Democrats would reply by saying that capitalism largely creates its own market; that the number of workers is not so small as is imagined, and that with the disintegration of the village community autocracy loses its main prop and the efforts of even a comparatively small number of town-proletariat will suffice to bring it down. As for fatalism and the rest, the less the “Populists” speak of this, the better. It is they who believe fatalistically in the magic virtues of the village community, and it is they who are inactive, not knowing where to turn. The Social-Democrats, on the contrary, have plenty of work. They need not wait till capitalism shall have done all its work, but they can take up the proletariat as it is turned out from the villages, and educate it in the ideals of political and economic freedom.

Events soon proved that the Social-Democrats were absolutely right. Whilst the “Populists” were arguing against the possibility of capitalism and of a proletariat in Russia, and the People’s Will Party broke up in fragments (some of its members, recollecting their ancient kinship with the Slavophils, going over to reaction), capitalism and the proletarisation of the masses were making enormous strides, and everywhere, in all industrial centres of Russia, Social-Democratic organisations sprang up to carry the Socialist propaganda among the factory workers. Suddenly in 1895 a vast strike, embracing tens of thousands of textile workers, broke out in St. Petersburg, and following that, a number of similar strikes in all large towns. What was it? The old “Populists” were taken aback. Have we really got a capitalism and a proletariat? It looked uncommonly like it. At once Social-Democracy – or Marxism, as it was called in the “legal” press – acquired a tremendous prestige and spread like wildfire throughout Russia. The entire educated youth became converted to Marxism, and the latter became a veritable craze. The Press and the drawing-rooms became full of it, special reviews were established to propagate it, books pro and con. were published in enormous quantities, and such books as Beltov’s “Monistic View of History” – one of the cleverest books on Marxism in our literature – had a “tearing” success. Of course, the “Populists” did not give in at once, and some of their old guard carried on a campaign against the new craze with a passion and ability such as would have been worthy of a better cause. But little by little the old guard was left alone in its trenches and the younger generation joined the ranks of the Marxists. No doubt, like every craze, the movement did not last very long; it was preposterous to dream of Marxism in a “legal” dress, and for real revolutionary work but few were prepared. And so the majority gradually cooled down or became infected with Bernsteinianism (another craze of the time), whilst the minority simply turned Liberal. That, however, did not in the least injure the revolutionary Social-Democracy – the Social-Democrats felt themselves masters of the situation, and took to their work with an increased zeal. In 1898 they even made an attempt to form a united Social-Democratic Party, and, though the attempt turned out to be premature, it still spoke volumes for the extent and vigour of the movement. Now there could no longer be any talk of resuscitating the old People’s Will Party – Social-Democracy was trumps!

Yet it was precisely at that very moment that the bastard movement called the Revolutionary Socialist Party first made its appearance. These were the old familiar “Populists,” still enamoured of the peasantry and the village community, who, being no longer able to dispute the existence of capitalism or the strength of the proletariat, conceived the happy idea of combining all the three things that were “good” in the programmes of the preceding three revolutionary parties in Russia, viz., the ideal of peasant communism of the Land and Liberty Party, the idea of the revolutionary proletariat of the Social-Democracy and – the ingenuity of it! – the conception of terrorism as the means of the revolution, of the People’s Will Party! How these three things, so logical, taken by themselves, in their original respective programmes, were in practice to be amalgamated into one mixture; how, for instance, the proletariat could be made revolutionary on behalf of the ideals of the peasantry, or how the conspirative exercise of terror could hang together with a class movement, all this remains a mystery to this day; the only practical solution which the Revolutionary Socialists have given to the difficulty was by establishing a separate organisation (alas, in many cases, mythical!) for carrying on terrorist acts (thus making the revolution doubly sure!), by instigating the peasantry to riots in the name of Land and Liberty, whilst at the same time preaching to the proletariat the class war. As a result we have a double or even treble system of revolutionary book-keeping, which finds its counterpart in the language which they speak to European and Russian audiences respectively, and a continual spasmodic oscillation, now towards terror, then towards peasants’ riots, then again towards propaganda among the proletariat, and last, but least, towards compromises with bourgeois parties!

And now, at last, we reach the present day. There is no denying the fact that within recent years the Revolutionary Socialists have acquired a reputation far beyond their intrinsic worth. Whilst Social-Democracy was silently impregnating the proletarian with class-consciousness and preparing it by means of street demonstrations for a general attack on Czardom, the Revolutionary Socialists have startled the world, first, by the organisation of peasants’ riots in the southern parts of Russia, and then by a series of daring attempts on the lives of some of the most unscrupulous representatives of autocracy. More particularly was the world taken in by the assassination of von Plehve, than whom there was no more hateful figure throughout Europe. This is scarcely to be surprised at. The world did not know Russia nor the forces that were really shaping her destiny. Partly despairing of any other means of salvation, partly impatient of the slow work of social forces, it greeted with delight the removal of such men as Plehve and thought that, if anything, it was terroristic acts like these that are likely to disorganise the autocratic system of government. And the Revolutionary Socialists themselves began to take themselves quite seriously. The Russian Liberals, who, like all other Liberals, have no understanding for the class movements of the proletariat, looked in their own helplessness with great sympathy upon the acts of terrorism, and money flowed from all sides to the “war chest” of the Revolutionary Socialists. What was Social-Democracy to them? A doctrinaire movement engaged in theoretical hair-splitting, but with no “go” in it. “Everyone,” declares in a leading article the Revolutionary Russia, the official organ of the Revolutionary Socialists, as recently as July of last year, “everyone who has followed during recent years the development of contemporary social-revolutionary thought both in the West of Europe and in Russia, cannot fail to acknowledge that the so-called orthodox and only revolutionary Marxism is living through its last and really tragical days of its existence .... In its instinctive endeavour to save at any cost its obsolete dogmas, its extremely narrow methods both in the domain of theory and in that of practice, the orthodox Marxist literature has fatally condemned itself to spiritual sterility, to the involuntary sin of ‘double-tongueness’ and to the voluntary sins of casuistical hair-splitting and hypocritical diplomacy.” Such was the opinion held by the Revolutionary Socialists of the Russian and International Social-Democracy, and it was, unfortunately, shared by many who ought to have known better.

And now the 22nd of January, with all that follows it at the present moment, has given the direct lie to these impudent assertions, and proved finally that it is Social-Democracy which will deliver Russia from her secular slavery. At first it was thought that it was a spontaneous rising of the St. Petersburg proletariat with which Social-Democracy had nothing in common. Now it is known that even in St. Petersburg Social-Democracy had a direct hand in the movement, whilst in all other towns it is only Social-Democracy that is organising and leading the movement. The Russian proletariat is now a class-conscious agent of the Revolution, and this we owe exclusively to the Russian Social-Democracy. It may well be – and, in fact, it is so – that in St. Petersburg a great portion, perhaps the majority, of those who went on the 22nd to the Winter Palace, were not Social-Democrats. But the very nature of their programme containing Social-Democratic demands as well as the fact that one single day sufficed to open their eyes to the real state of things, showed that the Social-Democratic propaganda in the past has not been in vain.[1] Social-Democracy, which once upon a time sprang up in the minds of a few “intellectuals,” is now leader of the popular Revolution, and no Trepoffs will be able to put it down. Autocracy has hitherto ruled, thanks to the acquiescence of the people, now it will have to rule against the will of the people – and that is a mightily difficult task!

We can rest quite assured as to the final issue of the Revolution. It has been foreseen when not a glimmer of it could be discerned with the naked eye, and the realisation of the forecast will carry us to the end. No more uncertainty, no more despair, no more pessimism – the “dogma” has proved correct and the “dogma” will triumph to the very last! It is the proletariat which has risen in its class interests against autocracy, and it is the proletariat which will make an end of it.

When all is said and done, however, the charge preferred by Marx and Engels against the policy of the S.D.F., as distinguished from its leaders, remains. That charge was, that its members regarded their Socialism as a dogma to be forced down the throats of the working class, and not as a movement which the proletariat has to go through with the assistance of the more conscious Socialist elements. The latter must accept the working-class movement at its starting point, go hand in hand with the masses, give the movement time to spread and consolidate, be its theoretical confusion never so great, and confine their efforts to pointing out how every reverse and every mistake was the necessary consequence of the theoretical inadequacy of the programme. As the S.D.F. did not do so, but insisted on the acceptance of the dogma as the necessary condition of their co-operation, it remained a sect and “came from nothing, through nothing, to nothing.”

Such was the charge. Was it justified? There can be no doubt that the Socialist policy as laid down by Marx and Engels in the above words was theoretically perfectly correct. It was in the Communist Manifesto that they had first proclaimed the principles of Socialist tactics by declaring that the Communists did not form a party separate from the general working-class movement, but represented in that movement its own future. One cannot help thinking, however, that when urging the same ideas thirty and forty years later upon the English Socialists they did not take sufficiently into account the difference in the conditions as between Germany of 1848 (it was primarily for German Communists that the Manifesto was composed) and England of the eighties. In Germany the proletariat was at the time mentioned only just evolving. It was largely as yet a raw material, confused but plastic, whose chief disadvantage, from the Socialist standpoint, consisted in the multitude of petty bourgeois notions under which it was still labouring. It was clearly the duty of Socialists to bring light into those masses by moving together with them much as a good pedagogist moves in the midst of his children, guarding them, when possible, against mistakes, but never lecturing them, never placing himself above them, always keeping patience with them, invariably allowing them to learn through mistakes and failures. This is the soundest line of conduct in all young capitalist countries, such as Germany was half a century ago, or America was in the early eighties, or Russia is at the present moment. It was also the policy of the Chartists in the latter thirties and early forties, when the British proletariat had just discovered for the first time its fundamental distinction from the middle classes.

Very different was the position in England in the eighties, when the Socialist movement was started by Hyndman and the S.D.F. The English working-class was no longer a raw material which one might help to shape according to one’s better light. It was well organised in trade unions, it had behind it a long and very pronounced historical experience, it had its traditions and acquired habits of mind – in short, it was a manufactured article, as it were. And what was still more important, those traditions and habits of mind were thoroughly bourgeois – not negatively-bourgeois as is the case with a working-class still unripe, but positively-bourgeois as comes from over-ripeness. In these circumstances what could and should have been the policy of the Socialists? The principles laid down in the Communist Manifesto were correct as ever – only they were in the English conditions of the eighties utterly inapplicable. By no permanent and intimate co-operation with the masses, such as was urged by Marx and Engels, could the Socialists have hoped “to revolutionise them from within”; on the contrary, what would have been achieved was merely the adaptation of the Socialists to the mental level of the masses which spelt not confusion” not theoretical unripeness, but Liberalism. Those who doubt this need only turn to the fate of those numerous ex-Socialists who have left the S.D.F. and “gone over” to the masses, but are now to be found in the ranks of the two bourgeois parties. The English working-class was not to be revolutionised from within, as many attempts, started with the blessings of Engels. himself, have proved by their dismal failure. Indeed, the International itself, in so far as Marx, in starting it, had the hope of “revolutionising” the British trade unions, was a ghastly failure – not only did the trade unions prove obstinate in their Liberalism and bourgeois Radicalism, but they ultimately withdrew, and the whole business collapsed.

No, however lamentable it may appear now, a certain intransigence, a certain modicum of impossibilism, was in those days not only inevitable but really necessary, if the Socialist movement was to subsist. It was all very well for Engels – and the idea is still entertained largely even now – to ascribe the impossibilist tendencies of the S.D.F. of that time to the baneful influence of Hyndman and other leaders; rather were Hyndman and his colleagues themselves semi-impossibilists only because the condition of their work demanded it. No other organisation, with totally different men at the top, would have conducted itself differently; if it had, it would have disappeared where the S.D.F. had survived.

At the present time a great confusion exists in the ranks of the Independent Labour Party (I.L.P.). The four most important members of its National Council – Keir Hardie, MacDonald, Snowden and Bruce Glasier (editor of the party organ, the “Labour Leader”) – have, in consequence of the criticism of their policy as leaders of the Party which was expressed at the Easter Conference, demonstratively retired from office. In an open letter addressed to the members of the Party they point out that confusion has existed for some time, caused by the formation within their ranks of a group who do not know what they want, who to-day applaud the Labour Party, and to-morrow demand the formation of a new Socialist Party, who upset the minds of the comrades and undermine their confidence in the leaders by their criticisms and ugly allusions and erroneous statements. How could the business of the Party be carried on under such circumstances? It is indeed not a question of the tactics of the Party – these were laid down once for all when it was founded – but only as to whether the Party is desirous of carrying out these tactics, of insisting upon loyalty to the latter, and of rejecting any actions or methods not in agreement with them. But it is exactly on this point that the Conference has in some instances not supported the Council, thus leaving them, the writers of the letter, no choice but to resign the mandates given by the Party.

Horrible! What can have happened? What is this mysterious group which is confusing the spirits of the Party, and has driven the four most respected leaders and founders of the Party out of the “responsible” posts of the Party Ministry? The proclamation of the four – the quartette, as it is now called in I.L.P. circles – does not mention any names, but all the world knows that the allusion is to the Grayson group. Now, who is Grayson? Who constitute his group? Wherein consists their disruptive activity?

Grayson is still quite a young man, about 27 years old, gifted, full of temperament, a born agitator, but without any sort of theoretical knowledge, no Marxist – more inclined to be an opponent of Marxism – in short, a sentimental Socialist at an age when the wine is not yet fermented. Like all Socialists of this type – and the type is a historical one, dating far back beyond our period – he represents more the tribune of the people than the modern party man, and without being an anarchist or syndicalist, he has a great horror of parliamentarism and of the planned political struggle, which he looks upon as dirty jobbery. This horror seems to be very wide-spread in England, in spite of the prevalent fetish-worship of Parliament, and is caused by the lying and deceitful tactics of the bourgeois parties. It is more to be ascribed to this horror than to firmness of principle, that Grayson, when put up as candidate at a bye-election in the summer of 1907 by the workers of Colne Valley, a Yorkshire constituency, fought for the mandate as a declared Socialist upon an openly Socialist programme, and rejected the compromise proposed by his National Council to appear before the public as a mere “Labour candidate” according to the arrangement of the Labour Party bloc. In spite of his being boycotted by the administration of his own party, as well as that of the Labour Party, and having candidates of both the bourgeois parties opposed to him, he was elected and came into Parliament, the first representative of the workers to get in on a Socialist ticket; thus proving that the hushing-up policy of the National Council of the I.L.P. and their trade unionist colleagues of the bloc of the Labour Party is not a necessity, and occasioning great joy in the S.D.P., as well as among the Socialist elements in the I.L.P., but at least equally great annoyance among the National Council of the latter.

Since that time Grayson has come to be in permanent opposition o the heads of his party, as well as the Labour Party group in general. As he did not join the latter, it boycotted him, and on the few occasions when he spoke in the House (as a Parliamentarian he was chiefly remarkable by his absence) he always came into collision with it. As, for instance, when the English King’s visit to Reval was discussed. The Labour fraction, encouraged by the Radicals, had decided on an interpellation, and as polite people (unlike the Irish who always force their questions upon the “Honourable House”) they entered into negotiations with the Government as to when and under what conditions they would allow this interpellation to be discussed. The Government said they would be glad to meet the wishes of the Labour fraction; only the debate must be closured at a certain hour by the leader of the Labour Party himself, and besides, the speakers must observe a respectful tone towards the King. The group joyfully accepted the conditions, and during some hours made their speeches, which were a curious mixture of attacks upon the Anglo-Russian friendship, and loyal songs of praise to King Edward. The time for adjourning the debate had already passed, but two Liberals spoke in succession, and the leader of the Labour Group, Henderson, showed no signs of interrupting them, Suddenly there arose from his seat, the “enfant terrible,” Grayson, who might well be expected to adopt a sharp tone against the King. Immediately at a sign from the Government, Henderson rose and closured the debate. Grayson protested, but was not allowed to speak.

Grayson came into collision a second time with the Labour Party on the question of unemployment. The Labour Party had neglected this question very much, while it had supported with great enthusiasm the Government’s Licensing Bill. The protests against this outside the House were becoming more frequent and violent, and one fine day when the whole House was deep in discussing a paragraph of the Licensing Bill, Grayson appeared upon the scene and announced to the House an obstruction according to the Irish pattern if it would not occupy itself, instead of with trivialities, with the unemployment question. Grayson’s appearance was unexpected, and one could justly reproach him that he, who never appeared in Parliament and had let pass earlier and much more suitable occasions for a protest, had no right to dictate to his colleagues as to what they should occupy themselves with. Still, this formal reason could only be sufficient to prevent the Labour Party supporting him in his unasked-for and unforeseen protest. But these gentlemen went further, and when the leader of the House, the Prime Minister Asquith, moved Grayson’s suspension, none of them uttered a syllable of protest, some refrained from voting, and the others voted for the proposition.

This, then, is Grayson. No extraordinary hero, as you see; no pioneer; though, on the other hand, not quite an ordinary human being. Whence, then, comes his popularity? How did he manage to create a state of mind in his party by which the most respected leaders have been defeated? The answer is, he has created no state of mind; he has only given expression to that state of mind which was already present; and that is why he has become popular. Perhaps the same state of mind could have been expressed much better and more worthily by a different person. As a matter of fact, the manner in which he gives expression to it is too theatrical, sometimes bordering on caricature. Still, he it was who distinctly voiced the state of mind, and he is made much of by those who agree with him – as a symbol, a standard. Nothing could be more mistaken than to see in him the leader of an opposition. He is no leader, neither can he become one. He is but a point of crystallisation, round which those elements group themselves who have something they wish to express.

What is that state of mind? Who are these elements? The state of mind is: Discontent with the tactics adopted and carried on during the last few years by the I.L.P. leaders towards the Labour Party. Here we reach a much discussed topic, which was also raised in the “Neue Zeit” a short time ago. How should a Socialist Party behave towards a Labour Party like that in England? As Marxists we all indeed know that Socialism can only succeed as a labour movement, that Socialists do not constitute a special organisation opposed to the other labour parties, and that the Socialist idea and the organised proletariat united into a class party must go together, like – to use the striking expression of Comrade Kautsky – the connection between the final goal and the movement. In all Continental countries we have acted upon these principles, but not in England, where their application met with a hindrance in the form of the peculiar historic facts. For while in other countries it was the Socialists themselves who for the first time organised and mobilised the hitherto chaotic, or, to be quite correct, amorphous mass, the proletariat in England had already been organised and actively engaged in the political struggle for decades before the modern Socialists appeared in the historic arena. Therefore Socialism on the Continent was never for a moment separate from the general labour movement, but stood, on the contrary, in its midst as its central force, while in England it arose as something different – even something opposed. What were the English Marxists to do under these circumstances? Should they merge themselves in the Labour Party? But there was no such thing at the beginning of English Marxism, for the few trade unions which engaged in political action did not at that time constitute a special party, but only provided from among their ranks members and candidates for the Liberal Party. All then that the Socialists could do was to seek to win over the masses to themselves; and that they did. Were they successful? No. Marx himself did not succeed when he tried to unite the English labouring masses to the International. As long as the English trade unions were fighting for the suffrage, as a means of securing their right of coalition, it seemed as though Marx’s attempt were destined to succeed. But no sooner was the suffrage – and what a meagre suffrage! – won, and the right of coalition secured, than the unions left the International, and the whole movement was at .an end – the International was dissolved. This precedent cannot be too sharply emphasised in face of the widespread opinion that the S.D.F.’s want of success is to be attributed to its own mistakes. Ah! what Party has not made mistakes? Marx was surely free from great tactical errors, and did he fare any better? Engels, too, discontented with the S.D.F., made, after Marx’s death, several attempts with the Avelings and others, to set on foot a new Socialist movement, and to mobilise the masses for an independent political struggle. How did he fare? Any better than the S.D.F.? No; a thousand times worse. Not only did all the organisations and movements die down after fluttering a little while, but the leaders, the Avelings, Bax, Morris and others, were forced to make their peace with the S.D.F. The difficulty of the S.D.F.’s task lay, not in that body and its methods, but in the historically created state of mind of the English working class, who were unreceptive to Socialist propaganda. Therefore it is out of place to speak of mistakes on the part of the S.D.F. Kautsky, who knows English conditions much better than most critics of the S.D.F., admits this fact, but yet is of the opinion that the S.D.F. did itself a great deal of harm by its irreconcilable criticism of the trade unions. I cannot share this opinion either. In the first place it was not the trade unions that the S.D.F. criticised, but the trade union cretinism, which at that time was so wide-spread, and of which Germany has not been free from samples. The faith in trade union action, and especially trade union diplomacy, as the one means of salvation, was the principal obstacle to the political action of the masses, and how could the S.D.F. not fight against it? In the second place, if these tactics brought the S.D.F. the enmity of the trade unions, thereby injuring the former, how was it with the I.L.P., which was much more gentle in its attitude towards trade union cretinism? Was it any more successful in winning the sympathies of the unions for itself, and for Socialism? It is true that at first Engels had great hopes of this, but the hopes were not realised. The I.L.P. remained for years quite as small a group as the S.D.F., and the unions gave it quite as little attention. Therefore the alleged bitter tone adopted by the S.D.F. towards the trade unions was not a factor in the want of success of this Party’s agitation among the masses.

Nothing could be more characteristic of the spirit which animates certain shining lights of the Labour Party than the endeavour which is to be made at the Belfast Conference to render the Parliamentary representatives of the party independent of the Conference resolutions. Those who have watched the recent developments on the Continent know that such independence is the standing demand of the opportunist sections in all Socialist parties, and constitutes but the first step in the gradual betrayal of the working class. Under the pretext that a Member of Parliament is, in the first instance, responsible to his constituents—a pretext which, as shown in last week’s “Justice,” is as disingenuous as it is baseless, since the constituents, by returning a given candidate, thereby express their solidarity with his programme and his party—gentlemen of a certain type, who regard themselves as superior to the masses, who, as Engels once said of the Fabians, “cannot possibly make themselves believe that the crude proletariat could ever accomplish by itself the gigantic task of self-emancipation,” but who in their heart of hearts merely regard the working class as a footstool for their personal ambitions—these gentlemen regard it as an intolerable tyranny that their hands should be tied by general guiding principles laid down at party conferences, and demand, in the name of individual. liberty and political expediency, freedom for their action and independence for their decisions. The result is invariably the same—alliances with the Liberal and Radical parties, betrayal of the interests of the working class, and, for some, perhaps, a seat in the Ministry or a snug administrative post.

There is, however, apart from personal ambition, usually something else in this clamour for Parliamentary independence—it is the other opportunist trait, the exaggeration of the importance of Parliamentary work. Th gentlemen do not believe in class-war tactics. They do not believe that here is an irreconcilable antagonism of interests between the bourgeoisie and the proletariat—an antagonism which it is the supreme duty of the leaders to make as patent as possible in order that the proletariat may organise itself for the complete political and economic dispossession of the bourgeoisie. They do not, therefore, regard Parliament as a means to revolutionise the minds, and to organise the forces of the proletariat, and believe, when we criticise their “statesmanlike” conduct in Parliament, and demand that they should aim, first and foremost, at the exposure of the hollow hypocrisy of the capitalist parties, that we wish them to discard all practical work, and to launch out in a campaign of abuse and strong phrases. What they see in Parliament is a nice comfortable place where, by means of clever diplomatic bargaining, and judicious, “temperate” speeches, you can obtain little favours for the working class without passing as a rude fellow or crude thinker, and without forfeiting the friendly pat on the shoulder and the invitation to a friendly cup of tea on the terrace from a “distinguished” statesman or man of business. Naturally they find that the party congresses cannot lay down rules of conduct for them, and they themselves must be left to manipulate the little ways and means which Parliamentary practice may offer them for achieving this or that “useful” object. As a result, we have again a bourgeois quagmire which sucks the gentlemen in, and renders them perfectly useless, if not positively pernicious, to the Labour movement.

But, of course, ours is a “legalist” mind. We are disposed “to the hopeless task of trying to bind the social and political progress with our red-tape formulae,” and we are blind “to the living processes of social evolution and political growth.” It is remarkable, however, that our view of what is the duty of representatives of Labour in Parliament should be supported by men who, without sharing any of our “formulae,” are, or were, nevertheless, genuine friends of the working class, possessing the additional advantage of themselves belonging to the bourgeoisie. Here is, for instance, what Mr. Frederic Harrison, at the time in the forefront of the movement for the legalisation of the trade unions and for independent political action of the working class, said in the course of an address on “The political function of the working class,” delivered before the London Trades Council, in March, 1868

“What a familiar picture to us this life in the House of Commons’. A question of great public interest has been talked over for years and years, and everyone knows perfectly what should be done. At last some judicious aspirant embodies it in a judicious little Bill, just timidly nibbling at the question, and hedging it round with all sorts of qualifications. And then he goes round to several judicious persons in the House, one of whom tells him that the ‘House’ will be afraid of this clause, and another, that this clause is unprecedented, and then that this other clause is rather too sweeping. So the poor Bill gets docked and twisted and pulled about, and all the little life in it is squeezed out; and then some very judicious speeches are made pro and con, and everybody declares it is a most important question, and ought to be considered, and a great deal of clever talking at each other goes on, the whole subject being utterly ignored all the while; and then it goes into committee, and more talking and paring and compromising goes on upon the clauses; and then the lawyers or the publicans, or some other meritorious class, discover that their interests are prejudiced by the Bill, and that they shall oppose it to the death. So the members are caught in the lobby and warned that if they vote for the Bill they will lose the lawyer or publican interest at their next election, and then somebody succeeds in getting the House counted out, and the Minister of the day, in sweet, constraining phrases, suggests that this important subject should be referred to a Select Committee upstairs; and then upstairs they go, and ten times more lobbying, and paring, and compromising, and (talking goes on than ever went on below, and the lawyers and the publicans are quite menacing, and hang about the galleries like savage dogs, and the poor legislators get very much harassed by the London season and the constant goading of the lawyers’ and the publicans, and then it gets very hot and uncomfortable in town, and someone whispers into the ear of the promoter of the Bill that he will be thought ‘impracticable’ in the House if he goes on, and ‘impracticable’ is an awful word, enough to damn any man in the House of Commons; and then members get up and ‘implore’ the hon. member to withdraw his Bill at this late period of the session; so at length the poor little Bill, all mutilated and mangled about, is withdrawn and the hon. member goes off to shoot on the moors, quite proud of having been so judicious, and of having shown so much business-like capacity …. Now they call that legislation, and that is Parliamentary government. Do you think that you or any real representatives of yours are ever likely to be adepts of that art? Do you think you or they can ‘catch the tone’ of the House, and be true to yourselves still? Is that the kind of legislation—is that the type of government which satisfies you? Truly; I think, you do not so much need to ‘catch the tone of the House’ as to utterly transform it.”

I do not apologise for the length of the extract, because for its faithful portrayal of bourgeois parliamentarism this statement is simply a chef d’oeuvre. Yet after a lapse of forty years Labour leaders of a Labour party, not merely bourgeois well-wishers, not only do their utmost to “catch the tone of the House,” but actually ask the ‘permission a those who sent them there to give them every opportunity for becoming “adepts of that art” of legislation! Verily, a fall that cannot but evoke the wrath of that old champion of the trade unions. We know that the Parliamentary representatives of the old trade unions did not take to heart the warnings of Mr. Frederic Harrison. Unlike the bourgeois Radicals of the generation of Cobbett, of Fielden, and of Daniel O’Connell, and unlike the Irish Nationalists of their own day, they did not go to Parliament to transform its tone, and to make it the public battleground for fighting out the issue between the ruling class and the class which had sent them there. They went there, and adopted the “judicious” turn of mind which their enemies wanted them to adopt, and they soon became horrified at everything “impracticable,” with the result that ultimately even the trade union weapon was knocked out of the hands of the proletariat. Let us hope that this time the organised working class will not allow its representatives to play fast and loose with their interests, as those representatives did in the past. Mach as we criticise the tactics of the Labour Party, we nevertheless acknowledge the great importance of its formation, and we shall be the first to deplore its disintegration, which is sure to follow if the ambitions of certain of its leaders find support at the Conference.

We do not profess to know, nor could, we think, even those on the spot tell, what would happen if the Duma were suddenly dissolved. One thing, however, is tolerably clear. If the Duma is still tolerated by the Stolypin Government it is through no fear of a national rising. It may be right or may be mistaken. The course of the Russian revolution has taught us to be careful about our predictions, and more than once the unexpected has come to pass. But if the Stolypin Government does not disperse the second Duma as it did the first, it is solely due to financial considerations—that is, to the fear that without the sanction of some sort of national representation no more money will be obtained from abroad. The position at the same time is such that without an immediate loan of some £30,000,000 or £40,000,000, even the current liabilities cannot be met, while the Budget of the next year cannot even be contemplated without a big loan, or the very army will have to be disbanded. The position is thoroughly desperate, and, willy-nilly, the Government has to stand the Duma, hateful as it is.

That it should, under the circumstances, do so with but little grace is only unintelligible to men like the “Times” correspondent, who, for some unaccountable reason, has taken it into his head that Stolypin is a statesman, who sees the political necessity for a Russian Parliament, and that it is only due to his lack of constitutional habits of mind that he now and then indulges in antics more suited for a Turkish Pasha than for a Minister who has a Parliament to deal with. The position is much simpler. The Government regards the Duma as an insult and humiliation, and being compelled to tolerate it for a time, kicks against the pricks like a newly-broken horse. There is no idea of standing it at minute longer than is dictated by stern necessity, and when the moment of delivery from its pressure comes, it will ignominiously be driven out from the Taurida Palace like a pack of menials.

In Russian party circles this is well understood, and because it is well understood, the different parties of the Opposition pursue different tactics. Broadly speaking there are two main lines of tactics advocated and acted upon by the Social-Democrats and the Cadets (Constitutional Democrats) respectively, the remaining parties either following in the orbit of one or the other, or hesitating between the two. The former, starting from the premise that nothing but the organised pressure of the people will bring about in Russia a constitutional and parliamentary government, insist on the necessity of turning the period of comparative security, separating the Duma from the fatal moment when it will have to take a final decision on the Budget, to the greatest possible account by using every opportunity for demonstrating to the nation the nature of the autocracy, and for creating an active system of co-operation between the people and the Duma, so that the former may both become organised, and feel its vital connection with the work and fate of its representatives. With this end in view, they proposed, when Stolypin announced his intention to lay before the Duma the programme of the Government, to have a thorough discussion on the subject so as to show the people what autocracy means. Later on, when the question of famine relief came up for consideration, they advocated the establishment of local relief committees elected by the people for the administration of the relief funds, under the supervision of emissaries of the Duma, in order that the Duma may come into direct contact with the people, and that the latter may become closely attached to its deputies. Similarly, when the Government demanded the other day the suspension of four Socialist deputies on the plea that they were being prosecuted for revolutionary propaganda, the Social-Democrats demanded that the Duma should consider the subject in plenary sitting, so as to afford the people an insight into the police methods of the Government. These are but few examples among innumerable others, but they suffice to show what the Social-Democratic tactics aim at. The Duma is regarded by them as an instrument for the further development of the revolution, and their action is mainly dictated by the consideration of the effect it may have on the nation outside.

Quite different are the Cadet tactics. The Cadets do not believe in the possibility of the resurrection of the revolution; neither do they desire it; and having thus only the good grace of the Government to fall back upon for the preservation of what small modicum of national representation: has been obtained, they aim mainly at winning it. Formerly it was different. During the first Duma, the Cadets, though also sceptical about the powers of the revolution, still believed that by Parliamentary means they could overcome the autocracy, and compel it to yield to the demands of the national representatives, and, in particular, to grant responsible government. Later events have shown their mistake, and now, though they still indulge from time to time in optimistic prophecies, they have come to the conclusion that far from gaining additional powers the Duma will have to be thankful if it is allowed to exist at all, even as it is. Hence they not only endeavour to avoid everything which may bring about a conflict with the Government, but actually try to win its favour by being as submissive as possible. To the Government declaration of policy they have replied by silence; to the Social-Democratic proposal to establish local famine relief committees they replied that a parliament can only control, but not act; and the demand of the Government to suspend the incriminated Socialist deputies they referred to a committee, in order to examine it there in all secrecy. Their speeches are, if possible, still more conciliatory than their acts. When the subject of the field courts-martial came up for discussion, their strongest condemnation of them was from a legal point of view, and when the Duma began the debate on the Budget, the Cadet speakers confined themselves to technical points. In both cases it was the Social-Democrats who placed the debates on, the proper political level, and the speeches delivered on this occasion by comrades Alexinsky and Tseretelli belong to the best political and oratorical efforts of the present Duma, and do credit to the International Socialist movement.

It is easy to see which of the two tactics is right. As a matter of fact, the Cadets themselves perceive that they are slowly but surely being dragged into the mire of opportunism in which they will suffocate. Their only argument, or rather apology, is: What else is there to hope for but the favour of the Government? So at least their case was frankly stated the other day by M. Miliukoff, their foremost leader. It shows how utterly senile Russian Liberalism is, in spite of the brief period of its existence, how distrustful of the powers of the people, how impotent for any energetic action.

That the Government would be such fools as not to avail themselves of this Cadet “psychology,” could not be expected, even by its bitterest detractors. The threat of dissolution, like the sword of Damocles, is kept hanging over the Duma with the special purpose of frightening the Cadets into submission, and every day brings the news of fresh acts of Ministerial arbitrariness, intended to bully the Duma, and particularly the Cadets, and make them obedient and humble. Like the boy in the wood crying “Wolf, wolf!” M. Stolypin has already a little overdone these tactics, and not only the Extreme Left, but even the foreign press correspondents are beginning to recover their senses, and perceive the emptiness of the threats. But on the Cadets they are still having a marvellous effect. They have become so thoroughly paralysed with fright that the only cry they can utter is one for mercy. “Don’t discredit us too much,” was, in substance, the bitter cry of M. Roditcheff to Stolypin the other day; “we will do everything for you, forget everything, only spare us a little in the eyes of the nation.”

The thing would be comical if it were not so serious. Thanks to the submissiveness of the Cadets, the Government is building up a majority for the Budget, and will thus gain the object for the sake of which it is still keeping up the show of a national representation. One might have thought that precisely the Budget would have been made by the Cadets the ground on which to give the Government battle royal. For one thing it is pre-eminently a parliamentary ground. Then the Government itself, in an unguarded moment of frankness, declared that it attached the greatest value to the sanction of the Budget by the Duma. Lastly, the Cadets know it as well as anybody else, that with the passing of the Budget not only will the existence of the Duma be a mere matter of days, if not hours, but the Government will he armed with new means to continue the war against the nation. Yet, so thoroughly have the Cadets lost their wits that they have actually, and in the teeth of the solemn declarations made but a few weeks ago, declared in advance that they will pass the Budget! It should he noted that the law does not allow the Duma any scope for altering the estimates to any appreciable extent. One part of the Budget is exempted from its competency by the so-called Fundamental Laws which the Duma cannot even touch without infringing the prerogatives of the Czar. The other part is exempted by virtue of a law which cannot be altered except by a special legislative act, while the remaining portion of the Budget consists of the expenditure in connection with the railways, State liquor traffic, and other similar undertakings, which represent going concerns, and cannot be either liquidated or appreciably tampered with at the present moment.. It would thus seem that the even apart from everything else, might have made at least the extension of the budgetary rights of the Duma the condition for passing the Budget. But they refuse to do even that, and for fear of raising a conflict which may bring about a dissolution, they are prepared to sell even the primordial rights of Parliament, which they value so highly.

It is, indeed, impossible to be indignant with them; they are too contemptible as men and as politicians. Nevertheless, their treachery will cost Russia new torrents of blood, in which, let us hope, not only the autocracy but they themselves will ultimately be drowned. The Russian Government may, with their aid, yet obtain a new lease of life for some short period, but the catastrophe will come all the same. The financial situation is too hopeless to be patched up even by a series of loans, while at the same time ever wider and wider circles of the population are being. drawn into the stream of the revolution. The eruption of 1905 proved inadequate to throw down the autocratic edifice which stood for centuries; but it has released new forces, and opened new channels, and now the work of the revolution is again proceeding underground till a new eruption will complete what the first began.

July 20th and 21st 1919 will go down in the annals of history as a red-letter day of the highest significance. On these dates for the first time since the beginning of the modern labour movement, the international working class has discovered and proclaimed to the world its moral unity. It is no longer the formal and mechanical unity of former days when the advance guards, the Socialists, turned out into the streets to perform the rite of simultaneous processions and meetings with no more thought of the ideal purpose underlying the actions and no deeper consciousness of the motives which inspired it than usually go with the performance of rites. On these historical days it is the masses themselves, moved by the same thought and the same emotions, who will throughout the world proclaim their solidarity with the one and the same cause now clothed with flesh and blood, and merge their individual identity in the moral ones of the class of which they have hitherto been disjointed members. In short the two days, July 29th and 21st will mark the constitution of the international working class hitherto more a concept than a reality, as a living entity, almost an organism with a common sensitiveness and common consciousness. The dream, the expectation, the scientific prognosis of the great founders of modern Socialism, so long delayed, but all the while imperceptibly maturing in the womb of Time, has, with startling suddenness, on the morrow of an unparalleled period of mutual massacre and hate, become a vivid and vivifying reality. There is an international working class, there is a proletariat, the grave digger of the past, the builder of the future.

This miracle has been accomplished by the genius and daring of the Russian Bolshevik Revolution which has now, for more than eighteen months, been transforming the world of ideas, the world of action, in a way never paralleled by any event, by any movement in previous history. Who but a Goethe felt the immediate effect of the great French Revolution at the battle of Valmy in 1792, that is, three years after its beginning? And was any contemporary in the least conscious of the effect of the teaching - we shall not say of semi-mythical Jesus and his insignificant handful of followers - but of St Paul the real founder of Christianity as a world religion? Yet here, less than two years after the accomplishment of a revolution in a far distant and almost unknown country, in spite of the immense amount of force of counter-influences, in spite of an almost impenetrable material and moral blockade erected by its enemies, in spite of an almost opaque atmosphere of poisonous gases, created by the lies calumnies and distortions of these same enemies - in spite of all this, the whole world of Labour is already feeling and responding to its stimulus, so that even in its most backward sections, those of this country can longer restrain their emotions, and have decided to come out into the streets to demonstrate them? If, verily, it seems as if Time had long been pregnant with the new ideas, and had only been waiting for the bold Caesarean stroke of the revolutionary lancet to give birth to them.

The Bolsheviks of Russia, under the leadership of Lenin and Trotsky, have, by the courage of their act performed the necessary operation, and every day that passes and brings with it the continuation of their rule sees the further and wider penetration of the revolutionary proletarian ideas which are inscribed on their glorious banner. And within every such new day we feel that their rule is going to continue and to gather strength inside and outside, all the efforts of the enemy, internal and external, notwithstanding. The artificial famine created in Russia by the Allies and their Tsarist clients by their blockade and occupation and devastation of the corn-bearing and mining districts, the constant and abundant supply of tanks, guns aeroplanes, poison gases and other diabolical engines of destruction to the Koltchaks and Denikins, the spread of false news and the suppression of true news, zealously practised by the enemies of Bolshevism - all these and numerous other means employed by the capitalist world to strangle the great proletarian revolution of Russia seem to be powerless to achieve anything but the consolidation and the ever-spreading popularity of the Soviet régime. In fact, they merely help to convince the labouring masses, both inside and outside Russia that the Soviet régime is firmly rooted in the consciousness of the people, and, conversely, that the salvation of the latter, both inside and outside Russia, after the unparalleled capitalist barbarity of the war and the perfidy of the peace, lies in the maintenance and universal adoption of the Soviet régime, the régime of the working class in power. And it is because of this growing and ever-spreading two-fold consciousness that the proletariat of the world will, on July 20th and 21st, turn out into the streets and loudly proclaim: “Down with the capitalist and Imperialist intervention! Long live the Soviet Republic”!

Germany is the blackest spot in Europe to-day. A year ago a magnificent revolutionary movement swept away the score or so of crowns and crownlets which had been the shame and the curse of Germany for two generations. All the world was on the tiptoe of expectation. Had we not always been telling ourselves and others that in the modern world there was no longer any room for purely political revolutions, that in particular, Germany, when once she set out to do away with any survivals of feudalism, would make a clean sweep of capitalist society as well? Was not her capitalism of the ripest? Was not her working-class the best educated and the best organised of all? Most of us fully expected that revolutionary Germany would immediately join Socialist Russia, and thereby infect even the victorious and Imperialism-drunk West. Alas, our expectations have proved false. Scarcely a few weeks had passed after the fall of Kaiserdom, when we, of “The Call,” were already aware that the German revolution was a miscarriage. The German working-class, eaten by the moth of opportunism during the long years of comparative prosperity under an ever-expanding capitalism, proved incapable of realising that the war, against which it had, in the first instance, revolted, had been the work not only of the military caste, headed by the feudal monarchy, but also of the capitalist classes in whose interests, in fact, the war had been primarily waged, and that the parties guilty of the great crime were not merely the Kaiser, but also the bourgeois parties from the extreme right to the extreme left, including the Scheidemann Socialists themselves, who had been voting the war credits with enthusiasm, and had been carrying on a “patriotic” propaganda even in the trenches. The results of this failure to understand the situation—a failure deeply rooted in opportunism and fostered by the writings of such authoritative exponents of Socialism as Kautsky, who refused to see in the war an Imperialist contest between two rival capitalist trusts, and persistently interpreted it as a contest between autocracy and democracy, thereby eliminating in advance all social issues from the future reckoning—was that all efforts to invest the revolution with a social meaning, with class contents, were unsuccessful, the reins of power were appropriated by the renegade Socialists of the Scheidemann-Noske school, and the parties which stood for a deepening of the revolution were crushed mercilessly and with complete impunity.

It must be admitted that these other parties (with the exception of certain individuals whose glory will shine through ages), have historically deserved their fate. The “Independents,” even of the left wing, have proved a set of revolutionary phrase-mongers, With not a drop of revolutionary blood in their veins, delighted to play the “opposition,” always ready to sit on, but invariably destined to fall between, two chairs. At first opposed to the Soviet system, they afterwards, under pressure of facts, accepted it, but in the true style of procurers, coupled it with parliamentarism. In a similar way they at first rejected the idea of dictatorship of the proletariat as horribly undemocratic, but ultimately adopted it in their programme with the proviso that it did not mean terrorism! And so they are now also opposing the Second International, but equally repudiate the Third International as a movement of the Bolshevik “sect” (sic) and advocate a “truly revolutionary”—Fourth International (Ledebour). Could these gentry have advanced the revolution, as the Russian Bolsheviks had done before them? Of course, not rather was (and still is) their action calculated to discredit the idea of a Socialist revolution in the eyes of the masses, who, whatever else they may want, cannot certainly be won over by pompous phrases and impotent deeds.

Unfortunately, the other Left party, the Communists, have also failed to offer the masses a substantial alternative to the Socialism of Treachery, installed in power With a blindness which only shows how superficial Socialist education had been in Germany, the majority of them, acting against the advice and entreaties of their best leaders, and miscalculating the distance which separated their country from the situation in which the Russian Bolsheviks had found themselves twelve months earlier, rejected the weapon of parliamentary agitation and education, and thereby, ruled themselves off the political stage, and condemned themselves to an irresponsible and scattered existence in obscurity. Their repeated. attempts at insurrection found no echo among the still unenlightened masses, and so far from succeeding in becoming a political and social force, have now hopelessly split into several fractions.

Thus everything in Germany has combined in preventing the development of the revolution from a political into a social one but thereby the very soul has been crushed out of the revolution which like every revolution must go forward, or die. For the amputation of its social, of its proletarian, tendencies could only have been achieved with the help of the classes who had all along been socially opposed to them, and now that the operation had been performed, the classes whose help had been employed, who for that very object had been resuscitated, re-organised and even re-armed, stand out as the real masters of the situation, who alone possess the necessary necessary material force to impose their will upon the revolution. The so-called Noske Guards, who were originally called to life in order to crush the dangerous social tendencies, have now in reality become the White Guards of the counter-revolutionary bourgeoisie and Junkerdom, who aim at strangling even the political revolution. And as there is nothing, absolutely nothing to oppose them, except the hypocritical screams of a Scheidemann and the revolutionary verbal protests of the Independents, the fate of the German revolution is hanging by a mere thread which can be cut at any moment. It would seem that whereas in Russia the mere spectre of a counter-revolution, during the Korniloff rebellion was sufficient to arouse the masses for a Socialist revolution, in Germany nothing short of an actual restoration would effectively do it.

I take up the newspapers, and note the following facts: The Government, having rejected point-blank the miners’ demand for nationalisation, introduced a “Coal Mines Emergency Bill.” The Labour Party, including the miners’ representatives, opposed it as utterly inadequate, and even dangerous; yet it passed the second reading, and is pre­sumably to be imposed upon Labour against its wishes.

Side by side with this, I read an announce­ment that the Miners’ Executive was going to meet on that day the Parliamentary Committee of the Trades Union Congress to deli­berate upon the action to be taken “to com­pel the Government to accept the majority report of the Coal Commission.” As I read this piece of news I recall the history of this question of nationalisation — how the miners were about to declare a general strike on the subject; how at the eleventh hour they agreed to stay their hands and to accept a public inquiry into their contentions, how that public inquiry bore these contentions out, how the majority partaking in it decided in favour of nationalisation, how the Government refused to accept its view, preferring that of the mineowners’ minority, how, instead of taking up again the weapon which they had temporarily laid aside, the miners relegated the whole question to the general body of trade unions, how the special con­gress, of the latter was summoned, and charged its Parliamentary Committee to in­terview the Government, how, on the receipt of an unfavourable reply, the congress, de­cided eventually, to take action “to compel” nationalisation, how, instead of immediately acting upon the decision, the miners’ leaders started upon a campaign of agitation in order to educate the “public,” how, having done this, they moved the nationalisation amendment to the Address, and were beaten, and how, immediately afterwards, a section of them came to the conclusion it would be better to drop the subject, altogether, and, pending the decision by the “electorate” at the next general election, to formulate a demand for an increase of wages. There being every likelihood that the special Trade union Congress which was “to compel” the Government to agree to nationalisation will adopt this view, the miners and the entire labour movement seem to be on the eve of the greatest defeat they have ever suffered in the course of their history.

On the front page of the “Daily Herald” I read about “dream houses” which the Government continues to build and about the new rise of prices by the Tobacco Combine, which “has been making enormous profits for a number of years”, (over £8,000,000 in 1919), the advance of the retail price of a reel of cotton from 7½d. to 10d., and the probability of a “considerable rise” in postal rates in the near future.

Again, the same and other papers announce, the speedy and successful termina­tion of a “little”, war in Somaliland only an­nounced, a day or two previously, as to which the, “Daily News,” in its leading column, takes note of the fact that “these operations have been undertaken, carried through, and finished, not merely without a word on the subject being uttered in Parliament, but without a suspicion of the facts escaping to the public from the Colonial Office.” The same applies to the rumoured preparations in Poland of an attack upon Soviet Russia and France’s plans on the Rhine, as to which the “public” — more especially, Labour — is completely in the dark.

A few examples taken at random from the news columns of the papers of one date — also taken at random — ought to suffice to show how impotent Labour is in the present conditions of so called Democracy. Rings prevent the building of houses; combines keep on raising the prices of necessities and common “luxuries” of life; “little” wars are carried on, which cost money and lives and inflict misery and death on far off races; still bigger wars are planned against a great coubtry anxious to live at peace with all the world – in all of these Labour has no say. And when Labour does get in a word in a matter which directly affects it and cannot be concealed from its gaze, it meets with the uncompromising hostility of the rulers and the ruling classes, finds itself out-manoeuvred and out-marshalled. At every step, gives in here, withdraws there, grants delays to the enemy, shilly-shallies, and finally succumbs to the superior courage of its enemies and to its own lack of will.

To all who have reflected on the situation an the light of the great Russian revolution there can be no doubt that this impotence of Labour is only too natural under present day Democracy, with its formal equality of rights, vitiated fundamentally, as it is, by the power of the capitalist class over the school, the Press, the platform, the pulpit, and the thousand and one other educational influences, over the professional and gene­rally educated classes, over the institutions of the State — the Crown, Parliament, and the Bench — in short, over all the sources of life, opinion, and action in modern society. So long as this power subsists, Labour, if formally enthroned in the seats of Government (as some hope to see it shortly) will be able to do nothing. The school, the Press, the pulpit, the bench, the Crown, the bureaucracy, the army (that is, its leaders), the professions (especially the talking profession, that is, the bar), will combine in a tacit ring to frustrate its designs, to hamper its actions, to combat its measures, and, if needs be, to bring about its downfall by a universal boycott, or, if things go too far, by an open insurrection, What can and will the Labour leaders, whose mental and moral calibre we have learnt to know by this time only too well, oppose to this powerful combination of material and intellectual forces? If they have allowed themselves to be checkmated on such a compara­tively easy problem as nationalisation of the mints, when they had all the pawns in their hands, what will happen to them when they are confronted by much larger and more complicated issues?

Labour will not cease to be impotent so long as it allows the universal power of the capitalist class to subsist. That power must be broken, and to this end Labour must establish its own undivided rule, even though it means civil war, and reconstruct all political and social institutions in accordance with its own needs. And for that, again, Labour must cease to delegate its power to so-called leaders, but must act itself, in a direct way, through all-embracing organisations — call them by whatever name you will — embodying its will at any given moment and giving expression to it, with the utmost promptitude and precision. Only through a social revolution will Labour shed its impotence, and become what it is entitled to be, the master of its destinies.

The National Charter Association and its legacy, 180 years on

In July 1840 a convention of twenty-three delegates met at the Griffin Inn, Great Ancoats Street, Manchester. Elected by Chartist bodies from across Britain, their purpose was to put together a plan for reorganising the movement following a year of repression, in which much of their leadership had been imprisoned, transported, or forced into exile. On July 20 the delegates agreed a plan for a permanent organisation of all the Chartist groups across the country within ‘one Society to be Called “The National Charter Association of Great Britain”’. With this they made history: the formation of the first working-class, mass-member political party in the world.

The NCA’s core objective was the People’s Charter – the ‘six points’ of reform that would secure universal male suffrage and protect the franchise from corruption. To these ends the party possessed a nationally-elected, paid Executive council, while NCA localities were organised on the town level. Its rules and policy was set democratically at regular conferences, and it was funded solely by subscriptions from its membership. Although its national nature made it an illegal organisation, the NCA organised openly and managed to attain 50,000 members by 1842, in essence establishing the precedent for legal political parties in Britain. It was also notably inclusive: women were admitted on the same terms as men, and in 1842 William Cuffay, the son of a slave from St. Kitts, was elected to its national Executive.

The NCA’s constitution was also remarkable for calling for ‘Chartist candidates at every election that may hereafter take place’. Consequently during the 1841 General Election the NCA stood or endorsed candidates in dozens of constituencies across the country, making it the first contested by a nationally organised working-class party in history. Despite the lack of working-class electors Chartist candidates often symbolically won the ‘show of hands’ of non-electors that preceded formal polling. Nevertheless, the NCA managed to recruit the two MPs for Finsbury, Thomas Slingsby Duncombe and Thomas Wakley, who were joined as MPs in 1847 by one of Chartism’s chief leaders, Feargus O’Connor, forming what Friedrich Engels celebrated as the first ‘People’s Party’ in Parliament. At its 1851 conference the NCA made history again by becoming Britain’s first social democratic party, adopting a programme of nationalisation of land and capital. Chartism was, however, declining since another wave of repression in 1848, and a split in 1850 by a small group of moderates to form the short-lived National Chartist League destroyed the NCA’s presence in Manchester, its former heartland. The party fought its last General Election in 1852, and it continued as a rump until 1858.

Despite its historical significance the NCA has largely been forgotten by the British left. It is nevertheless instructive for considering the divergent paths taken by the working class between the 1850s and 1900, when the Labour Representation Committee (LRC) became the first successful effort to form an independent working-class faction within Parliament since the NCA. The formation of the Reform League in 1865 appeared at first to resume the NCA’s mantle by combining the demand for universal suffrage with social reformism. Instead, the League’s acceptance of limited plans for Parliamentary reform and then explicit alliance with the Liberal Party in the 1868 General Election signalled a significant retreat from the Chartist position of absolute political independence. By the 1880s ‘Lib-Lab’ candidates backed by trade unions but accepting the Liberal whip became a growing faction in Parliament, but recent studies have emphasised how workers within this alliance felt growing frustration with the Liberal Party, indicating deeper roots to the LRC than has at times been assumed.

The only explicit comparative study of the shift from the NCA to the LRC remains From Chartism to Labourism, published in 1929 by Theodore Rothstein, a Bolshevik who during two decades of exile in Britain had been a member of the Marxist Social Democratic Federation (SDF) and its successors, the Social Democratic Party (SDP) and British Socialist Party (BSP). Consisting of essays written between 1905 and the 1920s for Russian and German workers, From Chartism to Labourism was one of the first histories of either Chartism or the Labour Party. Rothstein’s economic thesis posited that after 1850 rising wages, and then after 1875 falling prices, served to undercut working-class militancy. Alongside this he made a more sophisticated political and cultural argument, in which after 1848 state violence declined and capitalists who supported the Liberal Party made concerted efforts to conciliate the labour movement to prevent a Chartist revival. Falling prices encouraged British workers to identify as consumers rather than producers, generating strong support for the core Liberal policies of free trade and low taxation. Together, this encouraged the rise of labour leaders who emphasised cross-class co-operation to secure modest, easily winnable gains, which became the foundational purpose of the Labour Party. The argument was crude in places, such as Rothstein’s disinterest in the new unionism of the 1880s or the complex intellectual origins of the LRC. Nevertheless, his central contention that Chartism was fiercely independent and increasingly sought to take control of the state to reorder society, whilst labourism emphasised cross-party, cross-class co-operation to ameliorate the conditions of the workers, remains valid.

This implied that the successor of Chartism was the SDF, and therefore the Communist Party of Great Britain, of which the BSP was a founder. This is evident from Rothstein’s discussion of the SDP’s role at the conference that birthed the LRC, when their argument that ‘there could be no truly independent Labour Party….as long as they had no independent and clear-cut political line’ of expropriating the means of production, distribution, and exchange was rebuffed, causing them to leave. There was merit to this implication. Several studies have shown the passage of the followers of the Chartist leader and pre-Marxist anti-capitalist theorist Bronterre O’Brien into the SDF, and the ex-Chartist John Sketchley’s 1879 Principles of Social Democracy was an important formative influence on a new generation of social democrats. These links have been subject to far less study, however, than those Chartists who in later life became Liberals.

The question of the Chartist succession is therefore illustrative of two polar traditions in the working-class left in Britain: one was a radical aspiration for a direct democracy and widespread, permanent wealth redistribution, while the other sought to adhere to a ‘realistic’ alliance between organised labour and progressive liberalism. In many respects the recent history of the Labour Party has been a conflict between these two traditions, with the movement that developed since the election of Jeremy Corbyn in 2015 far more of a clear continuation of Chartism than the Party it was a component of. But amid the increasingly cataclysmic crises of our present century, the 180 th anniversary of the foundation of the NCA raises another question: is it time again to turn to the Chartist tradition of a strictly independent, working-class movement for substantive political and economic change?

Tom Scriven is a historian of C19th working-class politics and is currently a Research Fellow at Oxford Brookes University. Alongside in the History Workshop Journal, he has published in the Historical Journal, Journal of Victorian Culture, and the Labour History Review. His book on the intellectual culture of Chartism, Popular Virtue:Continuity and Change in Radical Moral Politics, 1820-70, is available from Manchester University Press. Tom tweets @pigs_meat.

Rothstein Andrew (and Theodore Rothstein)

Andrew Rothstein (and Theodore Rothstein )

Andrew Rothstein , who was to became a significant figure in British Communism, was born in London on 26th September 1898 to Jewish Russian political emigrants. His subsequent life was always tinged by the identity of his father, Theodore Aaronovich Rothstein (1871–1953). He was compelled to emigrate from Russia for political reasons and, from 1890, settled in Britain for the next 30 years.

Theodore joined the Social Democratic Federation in 1895, being very much part of its left wing in 1901, he also joined the Russian Social Democratic and Labour Party ( RSDLP ) as a British based member. The RSDLP would split into two factions, the Bolsheviks and Mensheviks and Rothstein would support the Bolsheviks all the way. Lenin frequently visited Rothstein and his family on his own visits to London, as in 1905.

The SDF leader, H M Hyndman , was acutely disturbed by the election to the SDF executive in 1900 of Theodore Rothstein . For he and Zelda Kahan , who was also of Russian-Jewish origin, led the opposition inside the SDF to Hyndman’s growing support for British militarism arising from his mistrust of German imperial ambitions, which was tinged by more than a whiff of ant-semitism . In a private letter dated 9 May 1905 Hyndman complained that: “… among certain cliques it is as inadmissable to criticise the Germans in Socialism as it is to point out that Jews have their drawbacks”. The struggle with Rothstein was personal and bitter.

During the subsequent 1914-18 war, Hyndman got hold of a list which included Rothstein’s name. For him this `Russian German Jew’ had been working for and on behalf of Germany all along. The simple truth was that Theodore had been working for both the British and German governments, and perhaps many others too, as a translator of innocuous materials.

Theodore supported the unity process that led to the formation in 1911, by a merger between a number of socialist groups and the SDF (which had become the Social Democratic Party in 1907) to create the British Socialist Party. Both the young Andrew and his father were strongly against the 1914-18 war, even though Theodore Rothstein was now working for the Foreign Office and the War Office as a Russian translator.

He was decisive in the move to oust the Hyndman national chauvinist clique in the BSP in 1916 and also took part in founding of the Communist Party. But he partly returned to Russia in 1920 and then increasingly became more involved in the new Russia to the extent that he remained there permanently. From 1921 to 1930 he was engaged in diplomatic work, starting with being the Soviet representative in Iran in 1921. He became Director of the Institute of World Economy and World Politics and, from 1939, was an Academician, receiving the Order of Lenin. Theodore also wrote a number of significant books, he wrote on Egypt, and his `From Chartism to Labourism’ (1929) was a pioneering work on British labour and trade union history.

Andrew Rothstein

Pic : Andrew Rothstein as a Lance Corporal in 1917

His son, Andrew Rothstein was highly influenced by his upbringing. In Shoreditch , aged 13, he was out with his father leafleting for the Labour candidate in Shoreditch at the bright age of merely thirteen in the 1911 general elections.

After winning a London County Council scholarship, Andrew studied History at Oxford. When war came, he served in the Buckinghamshire Light Infantry and Hampshire Yeomanry from 1917-19. As an undergraduate, Andrew was allowed to defer his call-up for six months. His mother, fearing that he would be called up, urged him to become a conscientious objector. “It was recognised in those days and not just on religious grounds,” he recalled. “ But I was familiar with the idea that a Socialist should not cut himself off from the workers. – Lenin had advised mothers to let their sons join up in order to learn how I to use the weapons.”

A period of general duties came first before Rothstein was posted to a special school of naviga tion and bomb-dropping. Later, he was assigned to the meteorological section, sending up little balloons and looking through a theodolite to determine air currents. As he recalled: “I blotted my copybook straight away by refusing to turn out for church par­ade . The next thing I knew I was sent to the cookhouse on jankers and given a bucket of water and a scrubbing brush.” After complaining to a sergeant major, and then a captain, Private Rothstein successfully won the right to agnostic status.

He was a corporal when he discovered that his unit was about to be sent to Archangel, the Russian port where British troops had been sent in August to assist the counter-revolutionary forces resistance to the new Soviet government, led by the Bolsheviks. “I couldn’t understand why, after the armistice, we were doing this training, until that one morning in December 1 918, a top staff major was coming down to address the unit on the need to volunteer.

Addressing his unit colleagues in the company mess room, in a camp base near Stonehenge, Andrew Roths tein , now a corporal, made a passionate speech, pointing out that the interven­tion was illegal and had not been agreed by Parliament. “I said that we had all enlisted for the duration of the war. Well, that war’s over. How would you like it if the Rus­ sian army came here and started tell­ ing us who we should be governed by?” I declared. “I would hope you will agree with me that we don’t want to go.”

“It was my first public speech,” Rothstein later recalled, but it could not have been more serious..” After a brief silence, a fellow corporal sit­ ting at the other side of the hall said: “ It’s alright Corporal Rothstein . I think we are all sick of this bloody war and this bloody army and we are not going to have any more.” When the top brass arrived only one solitary sol dier volunteered for duty. The boycott action at Stonehenge was the first ripple in a wave of protest that followed.

This was the first of many rebellions and mutinies in the British Army against the intervention in Russia, involving up to 30,000 troops at its height, the history of which was later documented by Andrew Rothstein in his `Soldiers’ Strikes of 1919′. A week after leading the protest, Andrew was alone posted to a special school of navigation and bomb dropping. Later, he was assigned to the meteorological section, sending up little balloons and looking through a theordolite to determine air currents.

Andrew Rothstein was a foundation member of Communist Party in 1920 and was the man who recruited Tom Wintringham (see separate entry) to the Communist cause. Rothstein met Sylvia Pankhurst on several occasions and said that he thought her “energetic and sincere but in a one-sided way … She always had a bunch of devoted women around her but often would think nothing of intercepting propaganda material being brought for my father and printing them as articles in her own paper. She was an unscrupulous woman.” At the suggestion of the Comintern , a second British Unity Congress was held, with Pankhurst’s group participating. Although a merger ensued, Rothstein recalled events as that “she broke away again after about three months”.

When Andrew Rothstein returned to Oxford, he found that he had been deprived of an army grant to assist his return to university and was thus unable to continue in post­graduate research. A stern letter from the Master and Fellows at Balliol announced that he must leave immediately. Twenty years later, when he met a former junior dean from those days, who told him that the Foreign Secretary, Lord Curzon had personally intervened in his case. Rothstein recalled: “He told me a letter was read out from Curzon , which said that I was a very dangerous Communist and must not be allowed to stay.”

On completing his university education in 1921, he became the London correspondent of ROSTA (later TASS ), the Soviet news agency. He regularly wrote articles for the Party, the labour movement, and a s a correspondent for the Soviet news agency as “C M Roebuck”. At the 8 th Congress of the Party, he was elected to the EC and politburo but removed from the latter after six years membership when the 11th Congress in December 1929 took the Party on a left turn.

Rothstein was “utterly against” the new line but found himself appointed as deputy head of the Anglo-American department of the Red International of Labour Unions and served in the post for 18 months, based in Moscow.

From 1920 to 1945, he was press officer to the first Soviet mission in Britain, and then correspondent for the Soviet press agency TASS , in London, Geneva and elsewhere. He became an authority on Soviet history, economy, institutions and foreign relations and began to publish widely: e.g. ` The Soviet Constitution’ (1923), ` Problems of Peace’ (essays on Soviet foreign policy, 1936-8), ` Workers in the Soviet Union’ (1942), ` Man and Plan in the Soviet Economy’ (1948).

Andrew Rothstein was President of the Foreign Press Association, from 1943-50 and, after the war, was the London correspondent of Czechoslovakian trade union paper, ` Prace’ , a post he held until 1970. From 1946, he lectured at London University`s School of Slavonic and East European Studies but was dismissed on spurious grounds in 1950 in an affair that had the feel of a McCarthyite purge about it. In this period, published ` A history of the USSR’ (1950) and ` Peaceful Coexistence’ (1955). He translated many Marxist texts from the Russian into English for example, Plekhanov’s ` In defence of materialism’ and s egments of Lenin’s Collected Works, such as, for the 4th English edition (1963), a report on the meeting of the editorial board of the journal ` Proletary’ in 1909.

Rothstein was awarded a Soviet pension in 1970 and, after formal retirement, was chair of the Marx Memorial Library and vice-chair of the British-Soviet Friendship Society. He also wrote and published widely there was an account of the origins and background of the building that houses the Marx Memorial Library, `A house on Clerkenwell Green’ (1972), and material that he had first hand knowledge of: ` When Britain Invaded Soviet Russia: the Consul Who Rebelled’ (1979) and `The Soldier’s Strikes of 1919’ (1980). Andrew Rothstein also wrote under the political pseudonyms of R F Andrews, Quaestor , and, most of all, C M Roebuck.

A member of the Communist Party all his days, he was a critic of the drive to revisionism in the CPGB of the 1980s and wrote, with Robin Page Arnot (see entry), another veteran Communist, a piece entitled “The British Communist Party and Euro-Communism” for the CPUSA’s `Political Affairs’, published in October 1985, which described the manufactured crisis in British Communism. He was proud to be the recipient of card number one of the re-established Communist Party of Britain in 1988. His last published article was for the CPB’s `Communist Review’, on `British Communists and the Comintern 1919-1929’, printed in the summer of 1991 and he died on September 22 nd in 1994, aged 95.

Sources include: Morning Star September 29 th 1988 and GS personal knowledge.

The first Soviet Ambassador in Persia: Theodore Rothstein and his life & times in Russia, Britain & Persia

Theodore Aronovich Rothstein (1871-1953) was a leading Russian revolutionary, journalist, diplomat, politician and academician.
After leaving Russia in 1890 for political reasons, Rothstein settled in Britain. He worked as a journalist for several British, Russian, and German publications. In 1895, he joined the Social Democratic Federation (SDF) and became one of the main figures of the left wing of the party. Rothstein later became a leading figure in the formation of the Communist Party of Great Britain. He also joined the Russian Social Democratic and Labour Party as a British member in 1901 and became a close comrade of Lenin.
After the 1917 Revolution in Russia, Rothstein was invited to Moscow in 1920. A year later he was appointed as the first Soviet official diplomatic representative in Persia. He returned to Moscow eighteen month later. The British government stopped Rothstein from returning to his family in the UK and warned members of his family not to join him abroad. Rothstein remained in Russia for the rest of his life, and held several governmental and academic positions.
Rothstein played an important role in early years of Reza Khan&rsquos power after the 1921 coup. He was involved in negotiating with the Janagli Movement. In a book based on the memoirs of &lsquoReza Basir-al-Dawlah Heravi&rsquo, (Do sal ravabet-e mahramaneh Ahmad Shah va sefarat-e Showravi dar Tehran), I revealed for the first time the secret alliance between Ahmad Shah and Rothstein against Reza Khan & the British Embassy coalition in Tehran. Over the last two years I also uncovered more documents, pertaining to several decades of secret investigations and monitoring of Rothstein and his family by the British Foreign Office, MI5 and MI6, both in Britain and in Persia. In addition to that, different unpublished public and private papers on Rothstein in Iran and the UK have provided additional information about this important personality, whose activities in Persia I intend to examine.

-- Module:Hatnote -- -- -- -- This module produces hatnote links and links to related articles. It -- -- implements the and meta-templates and includes -- -- helper functions for other Lua hatnote modules. --

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= false then link = removeInitialColon(link) end local namespace = link:match('^(.-):') if namespace then local nsTable =[namespace] if nsTable then return end end return 0 end

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function p.formatPageTables(. ) -- Takes a list of page/display tables and returns it as a list of -- formatted links. Nil values are not allowed. local pages = <. >local links = <> for i, t in ipairs(pages) do checkType('formatPageTables', i, t, 'table') local link = t[1] local display = t[2] links[i] = p._formatLink(link, display) end return links end

function p.makeWikitextError(msg, helpLink, addTrackingCategory) -- Formats an error message to be returned to wikitext. If -- addTrackingCategory is not false after being returned from -- Module:Yesno, and if we are not on a talk page, a tracking category -- is added. checkType('makeWikitextError', 1, msg, 'string') checkType('makeWikitextError', 2, helpLink, 'string', true) yesno = require('Module:Yesno') local title = mw.title.getCurrentTitle() -- Make the help link text. local helpText if helpLink then helpText = ' (help)' else helpText = end -- Make the category text. local category if not title.isTalkPage and yesno(addTrackingCategory)

= false then category = 'Hatnote templates with errors' category = string.format( '%s:%s',[14].name, category ) else category = end return string.format( '%s', msg, helpText, category ) end

-- Format link -- -- Makes a wikilink from the given link and display values. Links are escaped -- with colons if necessary, and links to sections are detected and displayed -- with " § " as a separator rather than the standard MediaWiki "#". Used in -- the template.

function p.formatLink(frame) local args = getArgs(frame) local link = args[1] local display = args[2] if not link then return p.makeWikitextError( 'no link specified', 'Template:Format hatnote link#Errors', args.category ) end return p._formatLink(link, display) end

function p._formatLink(link, display) -- Find whether we need to use the colon trick or not. We need to use the -- colon trick for categories and files, as otherwise category links -- categorise the page and file links display the file. checkType('_formatLink', 1, link, 'string') checkType('_formatLink', 2, display, 'string', true) link = removeInitialColon(link) local namespace = p.findNamespaceId(link, false) local colon if namespace == 6 or namespace == 14 then colon = ':' else colon = end -- Find whether a faux display value has been added with the | magic -- word. if not display then local prePipe, postPipe = link:match('^(.-)|(.*)

-- Module:Hatnote -- -- -- -- This module produces hatnote links and links to related articles. It -- -- implements the and meta-templates and includes -- -- helper functions for other Lua hatnote modules. --

local libraryUtil = require('libraryUtil') local checkType = libraryUtil.checkType local mArguments -- lazily initialise Module:Arguments local yesno -- lazily initialise Module:Yesno

local function getArgs(frame) -- Fetches the arguments from the parent frame. Whitespace is trimmed and -- blanks are removed. mArguments = require('Module:Arguments') return mArguments.getArgs(frame, ) end

local function removeInitialColon(s) -- Removes the initial colon from a string, if present. return s:match('^:?(.*)') end

function p.findNamespaceId(link, removeColon) -- Finds the namespace id (namespace number) of a link or a pagename. This -- function will not work if the link is enclosed in double brackets. Colons -- are trimmed from the start of the link by default. To skip colon -- trimming, set the removeColon parameter to true. checkType('findNamespaceId', 1, link, 'string') checkType('findNamespaceId', 2, removeColon, 'boolean', true) if removeColon

= false then link = removeInitialColon(link) end local namespace = link:match('^(.-):') if namespace then local nsTable =[namespace] if nsTable then return end end return 0 end

function p.formatPages(. ) -- Formats a list of pages using formatLink and returns it as an array. Nil -- values are not allowed. local pages = <. >local ret = <> for i, page in ipairs(pages) do ret[i] = p._formatLink(page) end return ret end

function p.formatPageTables(. ) -- Takes a list of page/display tables and returns it as a list of -- formatted links. Nil values are not allowed. local pages = <. >local links = <> for i, t in ipairs(pages) do checkType('formatPageTables', i, t, 'table') local link = t[1] local display = t[2] links[i] = p._formatLink(link, display) end return links end

function p.makeWikitextError(msg, helpLink, addTrackingCategory) -- Formats an error message to be returned to wikitext. If -- addTrackingCategory is not false after being returned from -- Module:Yesno, and if we are not on a talk page, a tracking category -- is added. checkType('makeWikitextError', 1, msg, 'string') checkType('makeWikitextError', 2, helpLink, 'string', true) yesno = require('Module:Yesno') local title = mw.title.getCurrentTitle() -- Make the help link text. local helpText if helpLink then helpText = ' (help)' else helpText = end -- Make the category text. local category if not title.isTalkPage and yesno(addTrackingCategory)

= false then category = 'Hatnote templates with errors' category = string.format( '%s:%s',[14].name, category ) else category = end return string.format( '%s', msg, helpText, category ) end

-- Format link -- -- Makes a wikilink from the given link and display values. Links are escaped -- with colons if necessary, and links to sections are detected and displayed -- with " § " as a separator rather than the standard MediaWiki "#". Used in -- the template.

function p.formatLink(frame) local args = getArgs(frame) local link = args[1] local display = args[2] if not link then return p.makeWikitextError( 'no link specified', 'Template:Format hatnote link#Errors', args.category ) end return p._formatLink(link, display) end

function p._formatLink(link, display) -- Find whether we need to use the colon trick or not. We need to use the -- colon trick for categories and files, as otherwise category links -- categorise the page and file links display the file. checkType('_formatLink', 1, link, 'string') checkType('_formatLink', 2, display, 'string', true) link = removeInitialColon(link) local namespace = p.findNamespaceId(link, false) local colon if namespace == 6 or namespace == 14 then colon = ':' else colon = end -- Find whether a faux display value has been added with the | magic -- word. if not display then local prePipe, postPipe = link:match('^(.-)|(.*)


Theodore Rothstein was born in 1871 in the Imperial Russian city of Kovno, Kovno Governorate (present-day Kaunas, Lithuania), into a Jewish family.

Rothstein left Russia in 1890 for political reasons and settled in the United Kingdom. He worked as a journalist in the area of foreign policy for The Tribune, the Daily News, The Manchester Guardian, and became a member of the National Union of Journalists. Ώ] Furthermore, he was active in London as a correspondent for several radical Russian newspapers. Rothstein also wrote articles for Die Neue Zeit, the organ of the Social Democratic Party of Germany (SPD), which represented the direct way of a consistent Marxism and in which took place debates regarding Marxism and socialism.

In 1895, he joined the Social Democratic Federation (SDF) which was founded by H.M. Hyndman in 1884. ΐ] Rothstein occupied the left-wing of the party as a prominent theorist and forward thinker, and in 1900 he was elected to its executive. He also joined the Russian Social Democratic and Labour Party as a British member in 1901, siding with the Bolshevik faction against the Mensheviks and becoming a close comrade of Lenin, who often stayed at Rothstein's house on Clapton Square in the Hackney area of London.

Rothstein published "Egypt's Ruin" (1910), an analysis of Egypt's systematic exploitation by the British after the occupation, evidenced by British government documents and correspondent reports from London newspapers regarding Egypt. Although Rothstein was a convinced opponent of World War I, he worked for the Foreign and Commonwealth Office and the British War Office as a Russian translator and interpreter.

Within the SDF's successor, the British Socialist Party (BSP), he was a leader of the opposition to Hyndman's support for the war. After Hyndman and his supporters left the BSP, Rothstein made numerous contributions to their paper, The Call. Α] He played a leading role in ensuring that the BSP played a significant role in the formation of the Communist Party of Great Britain. However, following an invitation to Moscow in 1920, he was refused permission to return to Britain. Β] He remained in Russia, became a member of the Bolshevik Party, took on the chairmanship of the "University reform commission" (1920–1921).

United States of America, Plaintiff-appellant, v. Robert Dibernardo and Theodore Rothstein, Defendants-appellees, 880 F.2d 1216 (11th Cir. 1989)

Sara Criscitelli, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Ralph J. Schwarz, Jr., Herald P. Fahringer, New York City, for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before JOHNSON and CLARK, Circuit Judges, and VINSON * , District judge.

This is the fourth occasion that this Court has considered an appeal involving this case. Since Robert DiBernardo and Theodore Rothstein were tried, convicted, and sentenced in 1981, the case has expanded and grown like kudzu to encompass numerous collateral issues. The issue now before us is simply whether the trial court properly granted these two defendants a new trial. The government contends that the district court abused its discretion in considering the motion for new trial, and that, even if the court could consider the motion, it did not have jurisdiction to grant appellee DiBernardo a new trial because he has been missing since June 1985. We affirm the granting of a new trial for Rothstein, but reverse and remand as to DiBernardo.

In 1977, the FBI began an undercover investigation of all major publishers and distributors of adult films and magazines throughout the United States. Special Agents Patrick Livingston and Bruce Ellavsky posed as pornographers in Miami, Florida, under false identities. These two agents contacted national distributors of pornography and ordered material which was shipped to them in Miami. This undercover operation and the resulting proceedings generally became known as "Miporn," for Miami Pornography.

Eventually, a grand jury in the Southern District of Florida returned 16 separate superseding indictments, charging individual distributors of adult materials with conspiracies involving their associates. One of the superseding indictments charged Robert DiBernardo, Theodore Rothstein, and Andrew D'Apice, the defendants in this case, with one count of conspiracy to violate the federal obscenity laws [18 U.S.C. § 371], three counts of transporting obscene material in interstate commerce by means of a common carrier [18 U.S.C. § 1462], and three counts of transporting obscene material in interstate commerce for sale or distribution [18 U.S.C. § 1465].

The trial of DiBernardo, Rothstein, and D'Apice was scheduled to commence on May 18, 1981. On that day, the district court considered various pre-trial motions, including a motion to sever filed by DiBernardo and Rothstein on the ground that they would suffer prejudice from a joint trial because their co-defendant D'Apice was willing to provide exculpatory testimony on their behalf. D'Apice filed an affidavit stating that he would provide such testimony at a separate trial of his co-defendants, but that otherwise, he would invoke his fifth amendment privilege against self-incrimination. In their motion, the defendants proposed that D'Apice be tried as scheduled on May 18, with the trial of DiBernardo and Rothstein to follow.

The district court examined D'Apice under oath with regard to his proposed testimony. D'Apice confirmed that he would supply exculpatory testimony in a trial of Rothstein and DiBernardo alone, but that if tried with the other two defendants, he would invoke his fifth amendment privilege.

The government opposed the motion for severance, claiming that D'Apice's proposed testimony would be perjurious. Accordingly, it refused at the hearing to provide D'Apice with use immunity for his testimony at a separate trial of DiBernardo and Rothstein. However, counsel for the United States indicated that D'Apice's testimony would not be used against him in a subsequent trial. D'Apice stated that he was willing to go forward with his testimony under these conditions.

The district court then granted the motion to sever, relying on two Fifth Circuit decisions in Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970) and Tifford v. Wainwright, 588 F.2d 954 (5th Cir. 1979). (R.710) The court went on to conclude, however, that the defendants had no right to determine the order of trials, and that the trial of DiBernardo and Rothstein would proceed as scheduled. In order to protect the constitutional right of the two defendants to compel D'Apice's testimony, the district court assumed that it could grant the witness "judicial use immunity" to protect his constitutional right against self-incrimination. In so doing, the judge recognized there was doubt whether the then Fifth Circuit recognized judicial use immunity, but followed a Third Circuit decision which approved judicial use immunity. See Government of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980).

Thereafter, the trial of DiBernardo and Rothstein began. At the close of the government's case-in-chief, the defendants began presenting their case. D'Apice was called as a witness out of the presence of the jury, and both defendants indicated that they wanted to elicit from him answers to questions only within the scope of his affidavit. The court indicated that it intended to provide the defendants their sixth amendment right to elicit such testimony from the witness.

Counsel for D'Apice then informed the judge that his client would invoke the privilege against self-incrimination as to all matters upon which he would be questioned during this trial. Counsel explained that, in his opinion, the court had no authority to grant judicial use immunity, and, therefore, his client was not adequately protected from future use of his testimony against him. The Court questioned D'Apice, and D'Apice confirmed that he would invoke his privilege against self-incrimination as to all matters at the trial. Finding that the witness' fifth amendment concerns "are not even possibilities," given the court's prior rulings, the trial judge held D'Apice in contempt and sentenced him to 180 days imprisonment, unless he purged himself during trial. The defendants continued presentation of their case without D'Apice, but expressly noted that the continuation did not represent a waiver of "any right of our need for Mr. D'Apice's testimony." (R. 2448) D'Apice filed a notice of appeal of his contempt citation, and the trial was completed without his testimony.

At the close of all the evidence, the defendants renewed their Rule 29 motions, and all previous motions and objections. (R. 2922) These motions were denied, and the case was submitted to the jury. After three days of deliberations, the jury returned guilty verdicts on all seven counts against both defendants on June 12, 1981. (R. 3457-58) The court proceeded to adjudicate both defendants guilty, and granted the defendants thirty days in which to file post-trial motions. (R. 3460) Two further extensions were granted, giving the defendants until August 21, 1981, to file their motions.

On August 14, 1981, the defendants filed motions requesting, inter alia, a new trial pursuant to Rule 33. The motion for new trial was made "for reasons heretofore advanced at the trial." (Doc. 1137) The record does not reveal the grounds more specifically.

The defendants were sentenced by the trial court on December 7, 1981, and both defendants filed notices of appeal the same day. On December 11, their Rule 33 motion was denied. This order is not in the record.

Three days later, on December 14, this Court reversed the adjudication of contempt against D'Apice, holding that his refusal to testify was a valid exercise of his fifth amendment privilege. United States v. D'Apice, 664 F.2d 75 (5th Cir. Unit B 1981). In that opinion, we expressly rejected the concept of "judicial use immunity," declined to follow the Third Circuit's decision in Government of Virgin Islands v. Smith, supra, and noted that the granting of immunity was strictly an executive branch function. United States v. D'Apice, supra, 664 F.2d at 77.

Another major development in this case followed soon thereafter. On January 21, 1982, the government informed the district court of a problem which had developed with respect to Special Agent Livingston. Livingston had been arrested for shoplifting in November 1981, and had given his "Miporn" alias to the police. The government indicated that Livingston had psychiatric problems involving an inability to distinguish between his real and undercover identities. Upon further investigation, it was revealed that concerns for the mental health of Livingston had been voiced by his superiors as early as March 1980. Livingston had been a principal witness before the Miporn grand jury and at several Miporn trials, including that of DiBernardo and Rothstein.

On February 12, 1982, a letter was sent to counsel of all defendants involved in the Miporn indictments, detailing the Livingston problem. In an order entered March 8, the district court directed all defendants to file appropriate motions with respect to this matter within 20 days. In June 1982, DiBernardo and Rothstein filed a motion denominated a "motion for new trial." (Doc. 1463) In it, they raised numerous grounds including: Livingston's testimony required re-examination of the admission of co-conspirator hearsay statements failure to disclose Livingston's psychological problems constituted a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) the indictment should be dismissed for use of Livingston's testimony before the grand jury and the indictment should be dismissed for prosecutorial misconduct.

In June and September of 1982, the district judge conducted thirteen days of evidentiary hearings on the Livingston matter. On December 20, 1982, the district court entered an order dismissing the pending Miporn indictments based on tainted grand jury testimony and prosecutorial misconduct. United States v. DiBernardo, 552 F. Supp. 1315 (S.D. Fla. 1982) see also United States v. DiBernardo, 561 F. Supp. 783 (S.D. Fla. 1983) (denying motion to reconsider). The court entered an order to show cause on December 28, 1982, why the indictments of DiBernardo and Rothstein should not be dismissed and their convictions vacated. (Doc. 1436)

Meanwhile, the defendants' appeal had been stayed by this court, pending resolution of the Livingston matter. On May 23, 1983, the case was remanded on the district judge's request. On June 27, 1983, the district court entered an order vacating the convictions of DiBernardo and Rothstein and dismissing the indictment without prejudice, pursuant to its order of December 20, 1982. (Doc. 1524) The district court concluded the order with the following observation regarding a new trial for these defendants:

The court also notes that at the trial of these defendants there was a significant inability on the part of the government to collaborate [sic] certain key statements which Livingston claimed these defendants made. Therefore, if for some reason this Court's decision with regard to dismissing the indictment of these defendants is reversed, there is no question in this Court's mind that the defendants DI BERNARDO and ROTHSTEIN would be entitled to a new trial.

(Doc. 1524) (footnote omitted)

The government thereafter appealed the order dismissing the indictments.

On December 5, 1985, this court reversed the order dismissing the indictment. United States v. DiBernardo, 775 F.2d 1470 (11th Cir. 1985), cert. denied, 476 U.S. 1105, 106 S. Ct. 1948, 90 L. Ed. 2d 357 (1986). We found that neither ground of the district court's order was an appropriate basis for the exercise of its supervisory power over the administration of justice within the district. We also noted that the trial judge had not yet ruled on the alternative motion for a new trial. Id. at 1474 n. 7. The case was remanded for further proceedings not inconsistent with our opinion. Id. at 1478.

On December 9, 1985, the district court directed the parties to file memoranda indicating what action the court should take. Further proceedings, however, were postponed pending action by the Supreme Court of the United States on the defendants' petition for certiorari. The Supreme Court denied certiorari on May 5, 1986, and a status conference was then scheduled on July 1 in the district court.

Another significant development occurred before the status conference. On or about June 5, 1986, defendant DiBernardo disappeared and has been missing ever since. The government moved on July 24, 1986, for an order requiring the two defendants to commence serving their sentences. Rothstein renewed his motion for a new trial on August 29, 1986. In this motion, the defendant set forth three grounds for the granting of a new trial: (1) Livingston's trial testimony was perjurious (2) Livingston's psychological history was undisclosed Brady material and (3) D'Apice, having pled guilty and been sentenced in 1984, was now available to testify at a new trial. (Doc. 1694)

The district judge, who had presided over these proceedings throughout this case, heard oral argument on the motion on September 19, 1986. At that time, he indicated that he was tentatively inclined to deny the motion on the Livingston grounds, but was inclined to grant the motion to allow D'Apice to testify. 1 (Vol. 9, Supp.R. 60-61) The court did not rule at the hearing, but required the defendant to file a "comprehensive statement by way of affidavit what Mr. D'Apice will in fact testify to on behalf of Mr. Rothstein." (Id. 61) The affidavit was duly filed on October 15. (Doc. 1702) The parties briefed the issue following the filing of the affidavit, with the government still opposed to a new trial based on the testimony of D'Apice. (Docs. 1703-1704)

On April 9, 1987, 657 F. Supp. 500, the district judge entered an order granting a new trial to both DiBernardo and Rothstein, based on the D'Apice matter. In essence, the court recognized that it had erred when it granted the motion to sever D'Apice, while compelling DiBernardo and Rothstein to stand trial first:

The granting of the motion to sever D'Apice gave them a partial victory to then deprive them of D'Apice's testimony by forcing them to trial before D'Apice was relieved of his Fifth Amendment privilege was clearly error.

The court disavowed that it was ruling on a newly discovered evidence motion. See Rule 33, Fed. R. Crim. P. Rather, it stated: "We are dealing with a remand from the Court of Appeals directing this Court to consider whether or not a new trial should be granted." (Id.) The court stated that its course of action which precluded the use of D'Apice's testimony was "clearly erroneous." It further found that D'Apice's testimony would have been "material and could very well have resulted in a different verdict on behalf of both Defendants." (Id. at 4) Accordingly, it granted the motion for a new trial for both appellees.

The government has taken an appeal from the order of the district court granting the new trial. It argues, first, that the district court abused its discretion in granting the motion for a new trial based on the D'Apice matter, and second, that the court was without jurisdiction to grant DiBernardo a new trial. This Court has jurisdiction pursuant to Title 18, United States Code, Section 3731.

One of the complications affecting our review of the new trial order is determining which motion for a new trial may have been available for consideration, and ruled on, by the trial court. Disregarding the trial motions, which were timely denied by the trial court, there are clearly three post-trial motions for a new trial made by one or both of these defendants. The first was filed by both defendants on August 14, 1981, and denied by the trial court on December 11, 1981, four days after the defendants filed their first appeal. The second motion was filed by both defendants in June 1982, based on the Livingston matter. It was not ruled on, since the trial court dismissed the indictment instead, but of which the trial court indicated there was "no question in this Court's mind" that DiBernardo and Rothstein were entitled to a new trial. This was the alternative motion acknowledged as still pending in footnote 7 of our order reversing and remanding the dismissal of the indictment. Finally, there is the renewal of the motion for a new trial filed only by Rothstein on August 29, 1986. It asserts two "Livingston" grounds and one "D'Apice" ground. The order on appeal granted a new trial on the D'Apice ground.

We begin our analysis by noting that the trial court's prior dismissal of the indictment and the alternative motion for a new trial recognized by us as still pending on remand were based on the Livingston matter, and not on the D'Apice matter. On the other hand, the trial court made it very clear that the new trial order involved in this appeal is based only on the D'Apice matter. The United States argues that it was an abuse of discretion for the trial court to grant a new trial under Rule 33 based on the proposed testimony of D'Apice. Rule 33 authorizes the granting of a new trial on motion of a defendant under two circumstances. 2 First, a new trial may be granted "in the interest of justice" on any ground if the motion is filed within seven days of the verdict or finding of guilty. Second, newly-discovered evidence may form the basis for a new trial motion if the motion is filed within two years of the entry of judgment. The government argues in this case that the district court was without jurisdiction to grant a new trial "in the interest of justice" and that D'Apice's newly-available testimony does not constitute newly-discovered evidence. With both these contentions, we must agree.

The time limits of Rule 33 are jurisdictional. See, e.g., United States v. Hall, 854 F.2d 1269, 1271 (11th Cir. 1988) United States v. Brown, 587 F.2d 187, 189 (5th Cir. 1979). Thus, a district court is without jurisdiction to grant a new trial using the "in the interest of justice" standard unless the motion is filed within seven days after return of the guilty verdict or within any extension of that time period granted by the trial judge within the seven-day period. See, e.g., United States v. Beasley, 582 F.2d 337, 339 (5th Cir. 1978) United States v. Coleman, 811 F.2d 804, 806-07 (3d Cir. 1987) United States v. Dukes, 727 F.2d 34, 38 (2d Cir. 1984) United States v. Hazeem, 679 F.2d 770, 774 (9th Cir.), cert. denied, 459 U.S. 848, 103 S. Ct. 106, 74 L. Ed. 2d 95 (1982) United States v. Fontanez, 628 F.2d 687, 691 (1st Cir. 1980), cert. denied, 450 U.S. 935, 101 S. Ct. 1401, 67 L. Ed. 2d 371 (1981).

The motion for a new trial filed in June 1983, and its "renewal" with the D'Apice matter filed in August 1986, were both filed outside the seven-day period for application of the "in the interest of justice" standard under Rule 33. Therefore, it would have been an abuse of the trial court's discretion to grant the motion sub judice "in the interest of justice," unless these two motions can be brought within the time limitations of Rule 33.

Only one Rule 33 motion was filed within the rule's time limitations of seven days to which the "interest of justice" standard would have applied. After the jury verdicts were returned against the defendants on June 12, 1981, the trial judge granted their request for extensions of time within which to file their post-trial motions. See Rule 33, Fed. R. Crim. P. These motions were eventually filed on August 14, 1981, and denied on December 14, 1981. Because the defendants had already filed their appeals, there is an initial question of whether the denial was jurisdictionally proper. See Rule 4, Fed. R. App. P. Although the district court denied their Rule 33 motion four days after the appellees filed their notices of appeal, it had jurisdiction to consider them and to issue a denial. 3 See United States v. Cronic, 466 U.S. 648, 667 n. 42, 104 S. Ct. 2039, 2051 n. 42, 80 L. Ed. 2d 657 (1984) United States v. Sjeklocha, 843 F.2d 485, 487 (11th Cir. 1988). Therefore, the first motion for a new trial was properly acted upon and denied.

The finality of the denial of this motion is also placed in issue by the fact that we have not yet considered and ruled on the defendants' original appeal. Instead, we remanded the case back to the district court so that it would have jurisdiction to consider and rule on the Livingston matter. Thus, the underlying appeal is still viable and could be pursued by the defendants if the new trial motions are denied. Rule 33 does not appear to contemplate a procedural situation such as this. Nevertheless, we must conclude that first motion had been finally denied and was not viable when the district court considered a new trial in 1987. Nor were the other motions within the time allowed for "an interest of justice" new trial motion. Therefore, it was improper for the district court to grant a new trial on that basis.

Assuming that any one of the three motions for a new trial was a timely-filed "newly discovered evidence" motion under Rule 33, it would also have been an abuse of the trial court's discretion to grant the motion based on the D'Apice matter. It is well-settled that in order to be entitled to a new trial under Rule 33 based on newly-discovered evidence, the defendant must demonstrate that the evidence satisfies the following five-part test:

(1) the evidence must be discovered following trial (2) the movant must show due diligence to discover the evidence (3) the evidence must not be merely cumulative or impeaching (4) the evidence must be material to issues before the court and (5) the evidence must be of such a nature that a new trial would probably produce a new result. United States v. Hall, supra, 854 F.2d at 1271.

See also United States v. Hobson, 825 F.2d 364, 366 (11th Cir. 1987). Newly-available, exculpatory testimony of a co-defendant is not considered newly discovered evidence sufficient to grant a Rule 33 motion unless it satisfies this same five-part test. See, e.g., United States v. Metz, 652 F.2d 478 (5th Cir. 1981) United States v. Martino, 648 F.2d 367, 406-07 (5th Cir. 1981), cert. denied, 456 U.S. 943 & 949, 102 S. Ct. 2006-07 & 2020, 72 L. Ed. 2d 465 & 474 (1982) United States v. Alejandro, 527 F.2d 423 (5th Cir.), cert. denied, 426 U.S. 923, 96 S. Ct. 2632, 49 L. Ed. 2d 377 (1976) and 429 U.S. 844, 97 S. Ct. 124, 50 L. Ed. 2d 115 (1976) United States v. Simmons, 714 F.2d 29 (5th Cir. 1983) United States v. Diggs, 649 F.2d 731, 739-40 (9th Cir.), cert. denied, 454 U.S. 970, 102 S. Ct. 516, 70 L. Ed. 2d 387 (1981) United States v. Rocco, 587 F.2d 144 (3d Cir. 1978), cert. denied, 440 U.S. 972, 99 S. Ct. 1537, 59 L. Ed. 2d 789 (1979) United States v. Barlow, 693 F.2d 954, 965-66 (6th Cir. 1982), cert. denied, 461 U.S. 945, 103 S. Ct. 2124, 77 L. Ed. 2d 1304 (1983).

Here, both Rothstein and DiBernardo were well aware of D'Apice's proposed testimony prior to trial. Therefore, the testimony cannot be deemed "newly discovered evidence" within the meaning of Rule 33. See United States v. Metz, supra, 652 F.2d at 480.

Both appellees rely on Ledet v. United States, 297 F.2d 737 (5th Cir. 1962), and Newsom v. United States, 311 F.2d 74 (5th Cir. 1962), for the proposition that newly available testimony can satisfy the newly discovered evidence test. In both Ledet and Newsom, motions for new trials were granted which raised a co-defendant's exculpatory testimony as newly discovered evidence. Although this Court affirmed both orders, our opinions make clear that the newly available testimony was not the sole ground for the decisions. Furthermore, in United States v. Metz, supra, we limited Ledet and Newsom to their facts and rejected the idea that newly available evidence is synonymous with newly discovered evidence on a Rule 33 motion. United States v. Metz, supra, 652 F.2d at 480-81. Thus, the "D'Apice matter" must be characterized as newly available testimony and is not "newly discovered" evidence for purposes of Rule 33.

Of course, if Rule 33 authorized the trial judge to order a new trial based on the D'Apice matter, we would be compelled to affirm the order without further comment. However, as pointed out above, neither standard of Rule 33 permitted the district court to exercise its discretion by granting a new trial based on the D'Apice testimony. The district judge recognized this as well. The "Livingston matter" was the only subject of the order dismissing the indictment on June 27, 1983. The pending, unruled on, motion for new trial that was identified by this Court for further consideration upon remand was related to only the "Livingston matter." As we've discussed above, the district court expressly disavowed the newly discovered evidence standard in the order granting a new trial which is before us. The judge apparently granted the new trial to correct what he perceived to be his own error in ruling on the motion for severance in May 1981. Thus, the underlying question in this case is whether the district court had the authority beyond Rule 33 to grant the new trial motion based on the D'Apice matter.

An order of remand by an appellate court cannot enlarge the authority of a district court beyond the rules of criminal procedure. See United States v. Smith, 331 U.S. 469, 471, 67 S. Ct. 1330, 1331, 91 L. Ed. 1610 (1947) United States v. Cannon, 807 F.2d 1528 (11th Cir. 1986). In the order granting a new trial, the district judge disavowed reliance upon the only available Rule 33 standard and stated that he was reviewing the motion under a mandate from this Court. Our opinion reversing the district court's previous order dismissing the indictments cannot be read to authorize the grant of a new trial sua sponte. We simply noted that an alternative motion for new trial was pending before the district court, and we remanded for action not inconsistent with our opinion. Nevertheless, the court's authority to order a new trial must arise from the grant of powers to the district court and not from our mandate. 4

It is clear to us that the trial judge was firmly convinced that a new trial was necessary, and we cannot disagree with that conclusion. It has been recognized in similar situations that the district court had the authority to consider Rothstein's motion for new trial based on the D'Apice matter under Title 28, United States Code, Section 2255. See United States v. McIntosh, 566 F.2d 949, 951 (5th Cir. 1978) United States v. Schmidt, 760 F.2d 828, 834 n. 9 (7th Cir.), cert. denied, 474 U.S. 827, 106 S. Ct. 86, 88 L. Ed. 2d 71 (1985) United States v. Holy Bear, 624 F.2d 853, 856 (8th Cir. 1980) United States v. Brown, 413 F.2d 878, 879 (9th Cir. 1969), cert. denied, 397 U.S. 947, 90 S. Ct. 965, 25 L. Ed. 2d 127 (1970). 5 The fact that the motion was denominated a motion for new trial under Rule 33 does not preclude consideration of the motion as a petition for relief under the federal habeas corpus statute. See 8A Moore's Federal Practice p 33.02 [a] (1988). We must, however, determine whether the motion is properly before us under Section 2255.

Section 2255 allows a person "in custody" under sentence of a United States district court to file a petition to vacate or set aside the sentence, if the underlying basis for the sentence was obtained, inter alia, in violation of the Constitution or laws of the United States. 28 U.S.C. § 2255 see Hill v. United States, 368 U.S. 424, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962) 3 C. Wright, Federal Practice & Procedure Sec. 593 (2d ed. 1982). In this case, the appellees had been convicted and sentenced to terms of imprisonment prior to the procedural complexities which commenced in 1982. As of that time, they were clearly "in custody" within the meaning of Section 2255. See Hensley v. Municipal Court, 411 U.S. 345, 93 S. Ct. 1571, 36 L. Ed. 2d 294 (1973) Simmons v. United States, 437 F.2d 156, 158 (5th Cir. 1971) United States v. Correa-de Jesus, 708 F.2d 1283, 1285 (7th Cir. 1983). The convictions were vacated in an order subsequently reversed by this Court. It appears from the record that these convictions have never been reinstated by the district court. However, by the time Rothstein filed his renewed "Rule 33 motion" raising the D'Apice matter, the government had filed a motion to require the defendants to surrender for execution of sentence. While there may be some question about whether the convictions are of record, we find that the imminence of imprisonment for the sentences received is sufficient to satisfy the custody requirement of Section 2255.

Furthermore, a motion to sever based on the need for the exculpatory testimony of a co-defendant implicates the constitutional rights of the movant. See United States v. Pepe, 747 F.2d 632, 650-51 (11th Cir. 1984) Tifford v. Wainwright, 588 F.2d 954 (5th Cir. 1979). In the seminal case on this issue, our predecessor Court affirmed the grant of a petition for habeas relief from a state court judgment because the trial court's denial of the petitioner's motion to sever constituted a denial of due process. Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970). Thus, the ground for the new trial order below would properly be raised in a Section 2255 petition.

As in United States v. Schmidt and United States v. Holy Bear, supra, the appellee Rothstein raised a constitutional claim of error in an untimely Rule 33 motion for a new trial. This ground for vacating his conviction could have been raised in a petition under Section 2255. Such a petition may be filed "at any time." 28 U.S.C. § 2255. Of course, a petitioner for relief may not ignore the procedural requirements of Section 2255. However, where there is no bar to the petition, the district court has jurisdiction to consider the claim and grant relief, if appropriate, under Section 2255.

The government has also advanced the argument that the appellees did not object to the trial court's ruling on the order of trials, although it concedes that the appellees could raise on direct appeal the thwarted presentation of D'Apice's testimony. Of course, the D'Apice matter has not been considered on direct appeal because the appellees' initial appeal was remanded on request of the district court, and since that time, the convictions have been vacated, the indictment dismissed, and the new trial motion held pending under an indication that it would be granted.

Failure to make timely objections to trial errors, failure to raise errors on direct appeal, and failure to take an appeal may be raised as bars to collateral relief. See, e.g., United States v. Frady, 456 U.S. 152, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982) Boschen v. United States, 845 F.2d 921, 922 (11th Cir. 1988) Edwards v. United States, 795 F.2d 958 (11th Cir. 1986) cert. denied, 481 U.S. 1019, 107 S. Ct. 1899, 95 L. Ed. 2d 506 (1987). But see United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984) (constitutional claims may be raised on collateral review even if not raised on appeal), cert. denied, 470 U.S. 1058, 105 S. Ct. 1772, 84 L. Ed. 2d 832 (1985).

As to the failure to object, we note that the appellees requested that D'Apice be tried first in their motion for severance, and that this is the general practice under these circumstances. If they did not then object to the judge's ruling, that is understandable--the judge had granted D'Apice immunity, and D'Apice had indicated his willingness to testify. Furthermore, when D'Apice asserted his privilege at trial, the appellees continued their defenses and expressly stated that they did so without waiving their contention that they needed the testimony of their co-defendant. We find that these actions sufficiently preserved the objection to the order of trials. 6

Having determined that the district court had jurisdiction to consider Rothstein's request for a new trial based on the D'Apice matter, we now consider whether the court abused its discretion in granting a new trial on that ground.

In considering the new trial motion in 1987, the district court was presented with an unusual situation. It had granted the pre-trial motion to sever in 1981, finding that the defendants had satisfied their burden under Byrd v. Wainwright. However, its decision to try Rothstein and DiBernardo prior to D'Apice constituted a de facto denial of the motion to sever that is, severance had been granted so that D'Apice could testify at the trial of Rothstein and DiBernardo, but the court's ruling on the order of trials negated that possibility. After the court had fashioned its "judicial use immunity" for D'Apice, neither the defendants nor the witness had reason to believe that their sixth and fifth amendment rights, respectively, had not been protected. The error of the trial court was not made manifest until after the defendants had been convicted and sentenced, at a time when D'Apice was still unavailable as a witness. The proceedings involving the dismissal of the indictment made irrelevant the need for D'Apice's testimony. Thus, the district court in 1987 was presented with a motion based on a denial of the motion to sever when the court itself had determined that severance was constitutionally mandated.

The procedural complexities of the case have presented this Court with an equally unusual situation. The government has appealed what appeared to be the grant of a motion for new trial which we have sua sponte denominated a petition for habeas corpus relief, and the basis for the defendant's underlying request for a new trial was the district court's order granting the defendant's motion for severance. Despite the complexities, the government has maintained throughout these proceedings that severance was not proper under Byrd v. Wainwright, and that, if severed, the appellees had no right to be tried after D'Apice. Noting that both severance and the order of trials for co-defendants are committed to the discretion of the trial court, we examine both contentions of the government. See Byrd v. Wainwright, supra.

In regard to the motion to sever, we find that the district court did not abuse its discretion in granting the motion in 1981 based upon D'Apice's proposed testimony. In order to succeed on such a motion, the movant must demonstrate: (1) a bona fide need for the co-defendant's testimony (2) the substance of the testimony (3) its exculpatory nature and effect and (4) the likelihood that the co-defendant will in fact testify if the cases are severed. United States v. DeSimone, 660 F.2d 532, 539 (5th Cir. Unit B 1981) see Byrd v. Wainwright, supra, 428 F.2d at 1019-18. The affidavits submitted with the 1981 motion and D'Apice's sworn statements at the pre-trial hearing demonstrated the substance of his testimony, its exculpatory nature and effect, and his willingness to testify. The substance of the testimony was that DiBernardo and Rothstein were not involved in a conspiracy with him and that they had no knowledge of the arrangements for shipments of allegedly obscene materials by common carrier in interstate commerce as charged in Counts II, IV, and VI of the superseding indictment. 7 Obviously, such evidence was peculiarly within the knowledge of the three co-defendants, and, therefore, if it was to be presented at all, it would have to be provided by one of this group.

The government argues that D'Apice's testimony was not needed because DiBernardo and Rothstein could have testified to these matters themselves. We, however, cannot ignore the fifth amendment privilege against self-incrimination. Furthermore, the proposed testimony strongly indicated that D'Apice was the only person involved in certain aspects of the activities charged as criminal. Testimony concerning his knowledge of the events would provide more convincing evidence than protestations of ignorance by DiBernardo and Rothstein.

Once the movant has demonstrated the substantive aspects of the proposed testimony, the court must evaluate whether severance is proper, assessing (1) the significance of the testimony in relation to the defenses, (2) the extent of the prejudice caused by the absence of the testimony, (3) the effect of severance on judicial economy and the administration of justice, and (4) the timeliness of the motion. United States v. DeSimone, supra, 660 F.2d at 540. An evaluation of these factors in this case indicates that granting the motion to sever was within the trial court's discretion. The motion was timely, and the evidence was significant to the defense. The prejudice arising from the denial of the motion was clear: " [T]he issue of [the defendant's] knowledge of [D'Apice's] criminal activities was central to the crimes charged by the indictment, and [D'Apice's] testimony was essential to rebut the prosecution's proof on this crucial issue." Tifford v. Wainwright, 588 F.2d 954, 957 (5th Cir. 1979).

While granting the motion to sever necessitated two trials, the teaching of Byrd v. Wainwright and its progeny is that judicial economy must yield to a defendant's right to a fair trial. In 1981, the district court determined that due process required severance of DiBernardo and Rothstein. We agree with that assessment the motion to sever was properly granted.

As to the order of trials, we agree with the district court's 1981 statement that among severed co-defendants, there is no absolute right to be tried in a certain order each case must be evaluated on its own facts. See Byrd v. Wainwright, supra, 428 F.2d at 1022. We also agree with the district court's finding in 1987 that the decision to first try DiBernardo and Rothstein effectively denied the motion for severance. As we found in our opinion reversing his conviction for contempt, D'Apice was not adequately protected either by the court's "judicial use immunity" or the government's informal immunity. United States v. D'Apice, 664 F.2d 75, 76-78 (5th Cir. Unit B 1981). Thus, he properly asserted his privilege against self-incrimination at the trial of his co-defendants.

In their 1981 motion, the appellees requested that their co-defendant be tried first, as did the petitioner in Byrd v. Wainwright. The record is not clear why the district court decided to try DiBernardo and Rothstein prior to D'Apice. However, that decision was based in part on the erroneous conclusion that "judicial use immunity" was available to protect the witness. Under the facts of this case, we agree with the district court that it erred in trying DiBernardo and Rothstein first in 1981. That error was an abuse of the trial court's discretion, which denied the appellees a fair trial.

The government has opposed the motion to sever throughout the course of this case based on the contention that D'Apice will commit perjury. As we have noted previously, " [c]redibility is for the jury, but the judge is not required to sever on patent fabrications." Byrd v. Wainwright, supra, 428 F.2d at 1021 see United States v. Alejandro, 527 F.2d 423, 428 (5th Cir. 1976), cert. denied, 429 U.S. 844, 97 S. Ct. 124, 50 L. Ed. 2d 115 (1977). The district court here was fully aware of the allegations of perjury and the dictates of Byrd v. Wainwright. Yet, the court granted the motion to sever so that D'Apice could testify. We also note that the district court has had the opportunity to evaluate D'Apice's proposed testimony not only in 1981, but also in 1986, and in both instances, it has decided that he should be allowed to testify on behalf of his co-defendants. The district judge is clearly familiar with the relevant facts on this issue, and we find no reason to disturb his evaluation.

We find that the district court had the authority to consider Rothstein's motion for a new trial on the D'Apice rationale. Under the circumstances of this case, we find that the motion to sever was properly granted in 1981, but that it was an abuse of the trial court's discretion to require DiBernardo and Rothstein to be tried prior to D'Apice without proper protection for the latter's fifth amendment privilege. As this decision denied the appellees a fair trial in 1981, Rothstein was entitled to relief on a Section 2255 petition. Accordingly, the district court's order granting the new trial as to appellee Rothstein is hereby AFFIRMED.

The district court ordered a new trial for DiBernardo on the "assumption" that he is not dead. At oral argument on the new trial motion, and again at argument before this Court, DiBernardo's counsel indicated that he believed his client to be dead. Furthermore, if he is not dead, there is substantial evidence that this appellee has voluntarily absented himself from the jurisdiction of the district court as a fugitive.

In either case, granting this defendant a new trial may not be proper. If DiBernardo is dead, then the motion is moot. See United States v. Romano, 755 F.2d 1401 (11th Cir. 1985) United States v. Pauline, 625 F.2d 684 (5th Cir. 1980). If DiBernardo is a fugitive, then the district court does not have jurisdiction to grant his motion for a new trial. See Molinaro v. New Jersey, 396 U.S. 365, 90 S. Ct. 498, 24 L. Ed. 2d 586 (1970) United States v. Holmes, 680 F.2d 1372 (11th Cir. 1982) Broadway v. City of Montgomery, 530 F.2d 657 (5th Cir. 1976).

Accordingly, the order granting a new trial as to DiBernardo is hereby VACATED. This case is REMANDED to the district court for a determination of the status of this defendant, and then, if appropriate, to consider his motion for a new trial consistent with the discussion herein.

Honorable Roger Vinson, U.S. District Judge for the Northern District of Florida, sitting by designation

At the September 19, 1986, hearing on the new trial motions, the trial judge indicated that the statements in the order dismissing the indictments about the uncorroborated evidence at trial were meant to apply only to DiBernardo, and not to Rothstein. (Vol. 9, Supp.R. 9-10) However, the judge also found that the D'Apice testimony would be material to the cases against both defendants. We agree

The court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice. If trial was by the court without a jury the court on motion of a defendant for a new trial may vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within 7 days after verdict or finding of guilty or within such further time as the court may fix during the 7-day period.

By restricting the court's actions to "on motion of a defendant," Rule 33 precludes " [p]roblems of double jeopardy aris [ing] when the court acts on its own motion." Rule 33 advisory committee notes, Fed. R. Crim. P. see United States v. Smith, 331 U.S. 469, 67 S. Ct. 1330, 91 L. Ed. 1610 (1947).

The initial new trial motion was filed after the 30-day extension granted to the appellees on return of the verdicts, but within the time limits of subsequent extensions granted by the trial court. Under similar circumstances, the Seventh Circuit has held that the Rule 33 motion was untimely after the initial extension, and the district court was without jurisdiction to consider it. See United States v. Hocking, 841 F.2d 735, 737 (7th Cir. 1988). It would appear that the trial court is in the best position to consider the need for the extension, and to perhaps continue an extension if done before it expires. The rule seems to contemplate unlimited discretion in the trial judge, since no outside time limitation is fixed for the extension. We need not decide the point, however, since it would not affect the result we reach

The rules of criminal procedure, of course, do not demarcate the outer limits of a trial court's authority to vacate a judgment of conviction. Under its inherent supervisory power, a district court may consider an untimely post-trial motion for judgment of acquittal or may grant such a motion sua sponte to correct manifest error when it retains jurisdiction over the case. See United States v. Coleman, 811 F.2d 804, 806-07 (3d Cir. 1987) Arizona v. Manypenny, 672 F.2d 761, 764-65 (9th Cir.), cert. denied, 459 U.S. 850, 103 S. Ct. 111, 74 L. Ed. 2d 98 (1982) United States v. Doherty, 675 F. Supp. 726, 729 (D. Mass. 1987) United States v. Broadus, 664 F. Supp. 592, 595-98 (D.D.C. 1987). The rules must be applied flexibly "to provide for the just determination" of every case and must be construed "to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay." Rule 2, Fed. R. Crim. P. see Fallen v. United States, 378 U.S. 139, 142, 84 S. Ct. 1689, 1691, 12 L. Ed. 2d 760 (1964) United States v. Mendoza, 565 F.2d 1285, 1288-90 (5th Cir. 1978). Thus, if a district court has jurisdiction over a case, then the interests of justice demand that it review the sufficiency of the evidence for conviction without regard to the technicalities of pleading. See Ansley v. United States, 135 F.2d 207, 208 (5th Cir. 1943)

Nevertheless, in United States v. Smith, supra, the Supreme Court expressed disapproval of a district court acting on Rule 33 motions beyond the time limits stated in the rule. 331 U.S. at 474-76, 67 S. Ct. at 1333-34. The Court pointed out that the rule provides for sufficient extensions of time within which the motion can be made and considered and that the time limit on the "in the interest of justice" standard has a purpose within the administration of justice. 331 U.S. at 475-76, 67 S. Ct. at 1333-34. "It is in the interest of justice that a decision on the propriety of a trial be reached as soon after it has ended as possible, and that decision be not deferred until the trial's story has taken on the uncertainty and dimness of things long past." 331 U.S. at 476, 67 S. Ct. at 1334.

In each of the four cases cited above, the district courts were presented with post-trial motions which were inappropriate under the rule identified by the defendant. In Schmidt, the defendant filed an untimely motion under Rule 33, claiming that he involuntarily waived several constitutional rights when he submitted the case to trial on stipulations. In Holy Bear, the defendant alleged ineffective assistance of counsel in an untimely Rule 33 motion. In both cases, the appellate courts found that the trial court had jurisdiction to consider the merits of the claims under Section 2255. Similarly, in Brown, the defendant filed a Rule 35 motion raising issues not cognizable under that rule, and in McIntosh, the defendant filed an untimely motion under Rule 35 raising a claim that his guilty plea was involuntary. In these cases, the appellate courts also found that the requested relief could be considered under Section 2255

With respect to the propriety of a Section 2255 petition, we note that this case does not present a situation where the appellees have waived their right to appeal their convictions prior to filing the motion at issue nor where they have defaulted on taking an appeal under the prescribed procedure. The district court initially invited renewed trial motions and kept such motions active after remand of the government's prior appeal

These assertions would also affect the evidence on Counts III, V, and VII, dealing with the interstate transportation of obscene matters for distribution or sale

Theodore Rothstein -->

Theodore Rothstein was born in 1871 in the Imperial Russian city of Kovno, Kovno Governorate (present-day Kaunas, Lithuania), into a Jewish family.

Rothstein left Russia in 1890 for political reasons and settled in the United Kingdom. He worked as a journalist in the area of foreign policy for The Tribune, the Daily News, The Manchester Guardian, and became a member of the National Union of Journalists. [1] Furthermore, he was active in London as a correspondent for several radical Russian newspapers. Rothstein also wrote articles for Die Neue Zeit, the organ of the Social Democratic Party of Germany (SPD), which represented the direct way of a consistent Marxism and in which took place debates regarding Marxism and socialism.

In 1895, he joined the Social Democratic Federation (SDF) which was founded by H.M. Hyndman in 1884. [2] Rothstein occupied the left-wing of the party as a prominent theorist and forward thinker, and in 1900 he was elected to its executive. He also joined the Russian Social Democratic and Labour Party as a British member in 1901, siding with the Bolshevik faction against the Mensheviks and becoming a close comrade of Lenin, who often stayed at Rothstein&aposs house on Clapton Square in the Hackney area of London.

Rothstein published "Egypt&aposs Ruin" (1910), an analysis of Egypt&aposs systematic exploitation by the British after the occupation, evidenced by British government documents and correspondent reports from London newspapers regarding Egypt. Although Rothstein was a convinced opponent of World War I, he worked for the Foreign and Commonwealth Office and the British War Office as a Russian translator and interpreter.

Within the SDF&aposs successor, the British Socialist Party (BSP), he was a leader of the opposition to Hyndman&aposs support for the war. After Hyndman and his supporters left the BSP, Rothstein made numerous contributions to their paper, The Call. [3] He played a leading role in ensuring that the BSP played a significant role in the formation of the Communist Party of Great Britain. However, following an invitation to Moscow in 1920, he was refused permission to return to Britain. [4] He remained in Russia, became a member of the Bolshevik Party, took on the chairmanship of the "University reform commission" (1920�).

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Court of Appeals for the Second Circuit

Precedential Status: Precedential

Theodore ROTHSTEIN, Plaintiff-Appellee,
Mark CARRIERE, Defendant-Appellant, and
Multi-Media Distributing Co. Inc., Leisure Time Entertainment, Inc., and Leisure Time Products, Inc., Defendants.

United States Court of Appeals, Second Circuit.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Randy M. Friedberg, Olshan, Grundman, Frome, Rosenzweig & Wolosky LLP, New York, N.Y. (Thomas J. Fleming, on the brief, Arthur M. Schwartz, Cindy Schwartz, Schwartz & Goldberg P.C., Denver, CO, on the brief) for Defendant-Appellant Mark Carriere.

Elkan Abramowitz, and Noah D. Genel, Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C., New York, N.Y. (Robert F. Katzberg, Kaplan & Katzberg, New York, NY, on the brief), for Plaintiff-Appellee Theodore Rothstein.

Before: WALKER, Chief Judge, POOLER, Circuit Judge, and GLEESON, District Judge.1

GLEESON, United States District Judge.

In the early 1990s, Mark Carriere and Theodore Rothstein were both engaged in the pornography business. Both were also under investigation by the federal government. In 1994, after Carriere was indicted on obscenity charges, he agreed to cooperate with the government's ongoing investigation of Rothstein. On March 18, 1994, as part of that cooperation, Carriere told the government that Rothstein controlled a company in Brooklyn, New York that produced and distributed obscene videos.

In February 1996, Rothstein was indicted on obscenity charges in the Northern District of Florida. The government dismissed the charges in 1997. Rothstein then brought this action against Carriere in the United States District Court for the Eastern District of New York, alleging that Carriere lied about him to the government. A jury found that Carriere was liable for malicious prosecution. It awarded Rothstein $1,000,000 in punitive damages and compensatory damages in an amount that was subsequently adjusted by the district court to $128,078.19.

We reverse and remand with instructions to enter judgment for Carriere.

A. The Investigation of Bizarre Video

Sometime prior to October 1990, Jimmy Whitaker, a Special Agent with the Federal Bureau of Investigation ("FBI"), entered a video store in Tallahassee, Florida. Whitaker was conducting an investigation into possible violations of the federal obscenity laws. During the search, Whitaker discovered a collection of obscene videos that had been shipped to the store by Multi-Media Distributing Co., Inc. ("Multi-Media"), Carriere's Indiana company. As a result of the seizure of those videos, and after some further investigation, a search warrant was executed in October 1990 at Multi-Media's Indiana offices. Among other things, $548,000 in cash was seized from a safe.

After that search, Special Agent Matthew Pellegrino, who had taken over responsibility for the investigation from Agent Whitaker, received (in an undercover capacity) a catalogue from a Multi-Media-related company that offered obscene videos for sale. The catalogue stated that the videos were distributed by Bizarre Video. These events led to a second search of Multi-Media's offices, in July 1991. This search revealed, among other things, that Carriere was doing business with a New York company named Bizarre Video/Bean Blossom ("Bizarre"). Specifically, labels and invoices seized during the searches revealed that Bizarre had supplied obscene videos to Carriere and Multi-Media. On some of the invoices, the preprinted name "Star" had been crossed out, and the name "Bizarre" was written by hand. The investigators then turned their attention to identifying the owners and principals of Bizarre.

Rothstein was the owner of Star Distributors ("Star"), a pornography business located at 20-40 Jay Street, Brooklyn, New York. Star's offices were on the same floor of the same building as the offices of Bizarre, and both companies used the same space to store videos and shipping labels. On July 23, 1992, the investigators obtained a warrant to search the offices of both Star and Bizarre. During the search of the adjacent offices, Morton Gordon told the agents that he was the president and sole owner of Bizarre, and Nathan Grama identified himself as the president of Star.

B. The Prosecutions of Carriere

The investigation commenced by Agent Whitaker in the Tallahassee video store resulted in multiple federal prosecutions of Carriere. The cash seized from the 1990 search of Multi-Media's offices produced a tax prosecution in the Northern District of Indiana. In August 1991, Carriere pled guilty to evading personal income taxes. He was sentenced principally to a three-year term of probation and a $250,000 fine. In April 1992, Carriere was charged with obscenity in the Northern District of Florida. Pursuant to Rule 20 of the Federal Rules of Criminal Procedure, the case was transferred to the Central District of California, where Carriere pled guilty to an obscenity charge arising out of the obscene videos Multi-Media had shipped to Tallahassee. His sentence in that case included another three-year probationary term, with a special condition of four months in home detention, and a $3,000 fine.

In January 1994, Carriere was indicted yet again on obscenity charges, this time in the Western District of Kentucky. Facing the prospect of a prison sentence in what was his third federal prosecution in as many years, Carriere decided to offer his cooperation to the government.

C. The Investigation and Prosecution of Rothstein

At that time, Gene Malpas was the Department of Justice prosecutor in charge of the ongoing investigation into Rothstein — specifically, into Rothstein's connection with Bizarre. Malpas and Pellegrino believed that there was an obvious connection between Rothstein and Gordon, and between Bizarre and Star. They based that view on (1) the physical proximity of the two companies' offices, i.e., they shared a floor in the same Brooklyn building (2) Bizarre's use of Star's shipping invoices and (3) bank records showing unexplained money transfers between the two companies.2 In short, Malpas believed that "Mr. Rothstein had much more connection to . Bizarre than would appear on any paperwork."

On March 18, 1994, Carriere was debriefed by Pellegrino and Malpas. Pellegrino's memorandum summarizing the interview reveals that Carriere gave the investigators the following information:

— Carriere had agreed with Bizarre to send Bizarre's promotional material to a group selected from Carriere's mailing list.

— The agreement originated with Carriere's former sales manager, Donald "Sandy" Sarnblad, who was a good friend of Rothstein's.

— According to Sarnblad, Rothstein had come to Sarnblad seeking to have Multi-Media sell Bizarre videos.

— Carriere finally agreed (after several importunings by Sarnblad) to include a page of Bizarre video titles in one of his mail order catalogues.

— The Bizarre titles sold well but were too expensive, so Carriere suggested that Sarnblad make a "cash deal" with Rothstein. Sarnblad did so, resulting in a substantial price break.

— To generate the cash for the Bizarre purchases, Multi-Media wrote checks to cash, cashed them, and delivered the cash to Rothstein in New York.

— Rothstein controlled Bizarre. All price discussions were with Rothstein. Although Gordon handled the "nuts and bolts" of the video sales, any matter of importance had to be decided by Rothstein. When Rothstein visited California (where Carriere had an office), he would discuss Bizarre business with Carriere. They would do the same when Carriere visited Rothstein's office in Brooklyn.

On February 7, 1996, 23 months after Carriere was debriefed by Pellegrino and Malpas, a grand jury in the Northern District of Florida returned a seven-count indictment charging Rothstein, Gordon, Sarnblad and Bizarre with various obscenity charges. All defendants were charged with conspiring to distribute obscene Bizarre videotapes.

As part of his cooperation, Carriere supplied Multi-Media documents to Malpas. In particular, Malpas asked Carriere for any records reflecting the delivery of cash to Rothstein for the Bizarre videotapes. Carriere produced records showing that Eric Gutterman, a longtime sales employee at Multi-Media, had delivered cash to New York. Carriere also facilitated an interview of Gutterman by Malpas and Pellegrino. When interviewed, Gutterman confirmed that he had delivered cash to Bizarre. Specifically, Gutterman stated that he had brought significant amounts of cash to New York and delivered it to Gordon at Bizarre's offices.

On January 13, 1997, Malpas made a motion to dismiss all charges against Rothstein and Sarnblad. The motion stated no reason for the relief it sought. On January 17, 1997, the district court granted the motion on a form order that provided no reason for the dismissal.

Although neither the prosecutor nor the court stated a reason for the dismissal, the record reveals that it was pursuant to an agreement between the parties. On November 18, 1996, Robert Katzberg, who is Rothstein's counsel in this case, and who was paid by Rothstein to represent Sarnblad in the criminal case, sent Malpas a letter referencing "our agreement that the government will dismiss the . indictment against defendants Donald Sarnblad and Theodore Rothstein" in exchange for an affidavit from Sarnblad. The letter enclosed a draft of Sarnblad's affidavit for Malpas's approval.

Three days later, Katzberg wrote another letter to Malpas, stating: "Enclosed, pursuant to our agreement to dismiss with prejudice the above-captioned indictment against defendants Sarnblad and Rothstein, is a photocopy of a fully executed affidavit of Donald Sarnblad. As I understand it, the United States will now move to dismiss against Sarnblad and Rothstein (with, of course, the consent of defendants)."

Sarnblad's affidavit admitted that as a Multi-Media employee, he was involved in the purchase of Bizarre videos. Sarnblad further admitted that he provided cash to another Multi-Media employee "to deliver as partial payment for the videos to Morton Gordon, the principal of Bizarre Video."

After the case was dismissed against Rothstein and Sarnblad, Gordon pled guilty.

D. The Complaint in this Case and the Proceedings Below

On December 15, 1997, Rothstein filed the complaint in this case. It charged Carriere and two corporations controlled by him (Multi-Media and Mark III Entertainment) with malicious prosecution, intentional infliction of emotional distress, and with committing a prima facie tort. All of the claims were grounded on Rothstein's assertion that in 1994 Carriere falsely and maliciously told Pellegrino and Malpas that Rothstein was the true principal of Bizarre, resulting in the indictment of Rothstein. The claims arose under New York law, and the district court's jurisdiction was based on the diversity of citizenship of the parties.

The jury found for Rothstein on his claim of malicious prosecution. It found for Carriere on the claim of intentional infliction of emotional distress.3 The jury awarded Rothstein $250,000 in compensatory damages for attorneys' fees and expenses incurred in the criminal case, and $1,000,000 in punitive damages. The district court reduced the compensatory damages to $128,078.19 because the evidence did not support the amount awarded. On May 24, 2002, judgment was entered for Rothstein, awarding him the latter amount in compensatory damages and $1,000,000 in punitive damages. This appeal followed.

Because "accusers must be allowed room for benign misjudgments," the New York Court of Appeals has held that the law "places a heavy burden on malicious prosecution plaintiffs. ". Smith-Hunter v. Harvey, 95 N.Y.2d 191 , 195, 712 N.Y.S.2d 438 , 734 N.E.2d 750 (2000). In order to prevail, they must establish four elements. First, the plaintiff must prove that the defendant initiated a criminal proceeding. Second, the proceeding must have been terminated favorably to the plaintiff. Third, the plaintiff must prove that there was no probable cause for the criminal charge. Finally, the defendant must have acted maliciously. Savino v. City of New York, 331 F.3d 63 , 72 (2d Cir.2003) (quoting Colon v. City of New York, 60 N.Y.2d 78 , 82, 468 N.Y.S.2d 453 , 455 N.E.2d 1248 (1983)).

The proceedings below were infected by four errors, two of which were preserved for appellate review. One of these relates to the probable cause element the district court disregarded the rule that a grand jury's indictment creates a presumption that the criminal proceeding was supported by probable cause. The second is that the district court erred by rejecting the argument that Rothstein failed, as a matter of law, to receive a "favorable termination" of the criminal proceeding as that phrase is defined by New York law.

As for the two unpreserved errors, one relates to the probable cause element (although in a different way than the presumption issue referred to above), and the other relates to the initiation element. Specifically, erroneous jury instructions were given on both elements. Moreover, a properly instructed jury could have reached but one conclusion on each: the prosecution of Rothstein was supported by probable cause and Carriere did not initiate the prosecution. Though our resolution of these unpreserved issues is not necessary to our disposition of the case, we address them because the erroneous jury instructions implicate important limitations to the malicious prosecution cause of action.

A. Probable Cause — The Effect of the Indictment

"Once a suspect has been indicted . the law holds that the Grand Jury action creates a presumption of probable cause." Colon, 60 N.Y.2d at 82, 468 N.Y.S.2d 453 , 455 N.E.2d 1248 . "The presumption may be overcome only by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith." Id. at 82-83, 468 N.Y.S.2d 453 , 455 N.E.2d 1248 . Thus, in order for a plaintiff to succeed in a malicious prosecution claim after having been indicted, "he must establish that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith." Id. at 83, 468 N.Y.S.2d 453 , 455 N.E.2d 1248 .

In this case, the government interviewed Carriere on March 18, 1994. In February 1996, nearly two years after the interview, Rothstein was indicted by a grand jury sitting in the Northern District of Florida. When Carriere moved for summary judgment below, his counsel asserted that Rothstein's indictment gave rise to a presumption of probable cause, and that summary judgment was warranted because "[w]e don't know what was presented before the grand jury." Counsel for Rothstein responded that he also did not know what evidence was presented to the grand jury, but that it did not matter. The district court agreed, stating as follows: "If in fact a person tells the police so and so is guilty of a felony and he maliciously lies about that, it doesn't matter what goes on before the grand jury."

In a motion for reconsideration, Carriere again argued that the district court "seemingly overlook[ed] established case law that the return of an indictment by the grand jury is prima facie evidence of probable cause. Colon, 60 N.Y.2d at 79, 468 N.Y.S.2d 453 , 455 N.E.2d 1248 ." (Mar. 12, 2001 Mem. Supp. Def.'s Mot. Recons. at 5.) In response, Rothstein argued that Colon "is irrelevant to this litigation" because Rothstein's claims "are not premised on [Carriere's] grand jury testimony (whatever it may have been), but are based on what Carriere told Agent Pellegrino in March 1994. ". (Mar. 15, 2001 Pl.'s Mem. Opp. Def.'s Mot. Recons. Den. Summ. J. ("Pl.'s Opp. Recons.") at 7-8.) In an order denying reconsideration, the district court again agreed with Rothstein, stating that "plaintiff's cause of action is based on statements defendant made to law enforcement agents, not to the grand jury."

This was error. Rothstein's cause of action is for malicious prosecution, not for maliciously making false statements to law enforcement authorities. A central issue in this case was whether the prosecution in question was initiated in the absence of probable cause to believe the crimes charged were committed by Rothstein. The grand jury's February 1996 indictment presumptively established that probable cause. Rothstein was required to rebut that presumption by proving fraud, perjury, suppression of evidence or other misconduct in the grand jury. His failure even to attempt to make that showing requires the dismissal of his claim.

On appeal, Rothstein makes three arguments on this issue. First, he asserts that Carriere defaulted on this issue below and thus may not now raise it on appeal. Specifically, Rothstein contends that "[t]he record is devoid of even a passing reference to a presumption regarding probable cause below." (Appellee's Br. at 26.) This argument is flatly refuted by the record. As set forth above, the presumption was explicitly raised in support of Carriere's motion for summary judgment, and Carriere's position was explicitly rejected by the district court. Carriere raised the presumption again in his motion for reconsideration, and again it was rejected. We therefore have difficulty understanding how counsel could assert in good faith that there was no reference to the issue below.

It is true that Carriere did not raise the issue for a third time at trial, but he was not obligated to do so. A motion pursuant to Rule 50 of the Federal Rules of Civil Procedure challenging the sufficiency of Rothstein's evidence to rebut the presumption might have been required to preserve the error if the district court had allowed the issue to be tried. But the court's ruling that the grand jury proceedings were irrelevant took the presumption out of the case entirely. In essence, the ruling granted partial summary judgment to Rothstein on the effect of the indictment.

As the Seventh Circuit has explained, a Rule 50 motion is required to preserve a challenge to the sufficiency of the evidence because once a trial has occurred, the focus is on the evidence that was actually admitted at trial, not on the earlier summary judgment record. Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714 , 718-19 (7th Cir.2003). However, where the trial court's denial of a summary judgment motion is not based on the sufficiency of the evidence, but on a question of law, the rationale behind Rule 50 does not apply, and the need for such an objection is absent. Id. at 719-20 see also Wilson v. Union Pacific R.R. Co., 56 F.3d 1226 , 1229 (10th Cir.1995) ("Not every denial of a motion for summary judgment requires a subsequent Rule 50 motion in order to be appealable. A critical distinction exists between summary judgment motions raising the sufficiency of the evidence to create a fact question for the jury and those raising a question of law that the court must decide. Where a motion for summary judgment based on an issue of law is denied, appellate review of the motion is proper even if the case proceeds to trial and the moving party fails to make a subsequent Rule 50 motion.") (quotation marks and citation omitted).

The district court did not deny Carriere's motion for summary judgment on the ground that a trial was necessary to determine whether Rothstein could rebut the presumption established by New York law. Rather, it ruled that the presumption had no role in the case at all. The disposition of the issue in that manner, over Carriere's repeated objection, preserved it for our review.

Rothstein's second argument is that the presumption of probable cause raised by his indictment is "easily rebutted." (Appellee's Br. at 37.) The sole basis of his argument is the contention that Carriere testified in the grand jury, and therefore the indictment must have been procured by perjury. This argument is baseless. The burden of rebutting the presumption of probable cause requires the plaintiff to establish what occurred in the grand jury, and to further establish that those circumstances warrant a finding of misconduct sufficient to erode the "premise that the Grand Jury acts judicially[.]" Colon, 60 N.Y.2d at 82, 468 N.Y.S.2d 453 , 455 N.E.2d 1248 . Here, the content of Carriere's grand jury testimony is unknown, as is the content of the rest of the government's presentation. Indeed, in arguing below that the grand jury proceedings were irrelevant, Rothstein's counsel conceded that he had no idea what happened before the grand jury. His belated argument that Carriere must have testified falsely to the grand jury amounts to rank speculation.

Third, Rothstein relies on Russo v. New York, 672 F.2d 1014 (2d Cir.1982), in contending that we have rejected a challenge similar to Carriere's. Russo, however, did not involve a grand jury's indictment. Rather, the defendant there sought to ascribe presumptive effect to the issuance of an arrest warrant. We held, based on New York law, that the presumption is inapplicable where the warrant was issued based on the statements of the defendant in the malicious prosecution action. Id. at 1018. In this case, it cannot be said that the indictment was based on Carriere's testimony in the grand jury, let alone solely on that testimony. Rothstein has never claimed that it was, contending instead that his cause of action was "not premised on [Carriere's] grand jury testimony (whatever it may have been)," but on his 1994 interview. (Pl.'s Opp. Recons. at 8.) Indeed, Rothstein assiduously avoided any inquiry into the basis of the indictment. Thus, Russo provides no reason to find the presumption inapplicable in this case.

In sum, the district court's erroneous disregard of the presumption that probable cause supported the prosecution of Rothstein requires a reversal of the judgment in his favor. In other circumstances, the appropriate relief might be to remand for a new trial, at which a properly instructed jury could determine whether Rothstein has rebutted the presumption by showing that the grand jury proceedings were tainted by fraud or perjury. However, that is neither necessary nor appropriate here. Throughout the proceedings in the district court, Rothstein insisted that the grand jury presentation was irrelevant, and that he had no idea what had transpired there. For that reason, Carriere's motion for summary judgment should have been granted, and a remand for a trial on the issue would be futile.

B. Favorable Termination

The district court held that, as a matter of law, the criminal prosecution had terminated in Rothstein's favor. Carriere contends on appeal that this was error. We agree. Indeed, the facts regarding the termination of the case require the opposite conclusion. As a matter of law, Rothstein failed to satisfy this element of the claim.

1. The Procedural History in the District Court

On July 28, 2000, the district court heard oral argument on Carriere's motion for summary judgment. The court rejected Carriere's argument that the dismissal of the indictment as against Rothstein did not constitute a "favorable termination" within the meaning of New York law. In doing so, the district court expressed its view that Rothstein, who had not cross-moved for summary judgment on the issue, might be entitled to it. Specifically, the district court observed that any dismissal of a prosecution that did not involve an admission of guilt by the defendant was a favorable termination:

That element is about is there or isn't there a favorable termination. It doesn't really matter for that element what the reason was unless the reason related to him pleading guilty or something, the plaintiff pleading guilty or something like that. That would not be considered favorable. It doesn't matter what the reason is, it is an element that requires that the proceeding be terminated favorably, and clearly it was.

When Carriere's counsel argued that it indeed mattered why the case was dismissed, the district court continued:

What I'm saying is, the reason doesn't matter. Both sides spent a lot of time on the reason. What I'm saying is, unless the reason had something to do with the plaintiff, himself, Mr. Rothstein, himself, accepting some kind of liability or responsibility, the reason why it is dismissed against him doesn't matter.

The reason we have that element is just to make sure that somebody doesn't get [to] charge[] malicious prosecution who ultimately is found guilty of something.

At a pretrial conference on March 18, 2002, the court reiterated its view: "I would have thought a dismissal, an outright dismissal of a pending prosecution is a favorable termination whatever the reason is." However, since Rothstein had not moved for summary judgment on the favorable termination element, the district court's remarks left some uncertainty about whether it would be tried. In a letter dated April 3, 2002, just five days before the trial began, counsel for Carriere sought clarification of whether evidence could be offered on the issue at trial. On the morning of jury selection, the district court answered that question, resolving the issue in Rothstein's favor: "It's undisputed that the indictment against Mr. Rothstein was dismissed, and I don't see any indication, in the evidence that's being proffered by the defendant, that the dismissal was anything but a favorable termination." Thus, evidence on the issue was precluded, and the district court instructed the jury that the dismissal was a favorable termination.

2. New York Law Regarding the Favorable Termination Element

New York law does not require a malicious prosecution plaintiff to prove her innocence, or even that the termination of the criminal proceeding was indicative of innocence. Rather, the plaintiff's burden is to demonstrate a final termination that is not inconsistent with innocence. Smith-Hunter, 95 N.Y.2d at 198-99, 712 N.Y.S.2d 438 , 734 N.E.2d 750 see also Cantalino v. Danner, 96 N.Y.2d 391 , 396, 729 N.Y.S.2d 405 , 754 N.E.2d 164 (2001) ("[T]he question is whether, under the circumstances of each case, the disposition was inconsistent with the innocence of the accused.").

As a general rule, a final termination of a criminal proceeding in favor of the accused is a favorable termination for the purposes of a subsequent malicious prosecution claim. Smith-Hunter, 95 N.Y.2d at 195, 712 N.Y.S.2d 438 , 734 N.E.2d 750 . However, this general rule is subject to certain exceptions. Misconduct of the accused that prevents a proper trial, for example, is one such exception, as is dismissal "out of mercy requested or accepted by the accused[.]" Smith-Hunter, 95 N.Y.2d at 196-97, 712 N.Y.S.2d 438 , 734 N.E.2d 750 . Another is particularly relevant to this appeal: "A termination is not favorable to the accused . if the charge is withdrawn or the prosecution abandoned pursuant to a compromise with the accused." Id. at 196, 712 N.Y.S.2d 438 , 734 N.E.2d 750 . This exception has its origin in Halberstadt v. New York Life Ins. Co., 194 N.Y. 1 , 86 N.E. 801 (1909), where the New York Court of Appeals stated as follows:

The first [rule] is that where a criminal proceeding has been terminated in favor of the accused by judicial action of the proper court or official in any way involving the merits or propriety of the proceeding or by a dismissal or discontinuance based on some act chargeable to the complainant as his consent or his withdrawal or abandonment of his prosecution, a foundation in this respect has been laid for an action of malicious prosecution. The other and reverse rule is that where the proceeding has been terminated without regard to its merits or propriety by agreement or settlement of the parties or solely by the procurement of the accused as a matter of favor or as the result of some act, trick or device preventing action and consideration by the court, there is no such [favorable] termination..

Id. at 10-11, 86 N.E. 801 (emphasis added) see also Martinez v. City of Schenectady, 97 N.Y.2d 78 , 84, 735 N.Y.S.2d 868 , 761 N.E.2d 560 (2001) ("A termination is not favorable. where a prosecution ends because of a compromise with the accused"). The rule mirrors the Restatement (Second) of Torts § 660 (1977) ("Restatement"), which provides that a "termination of criminal proceedings in favor of the accused other than by acquittal is not a sufficient termination to meet the requirements of a cause of action for malicious prosecution if . the prosecution [is] abandoned pursuant to an agreement of compromise with the accused."4

In order for the compromise of a criminal case to defeat a subsequent malicious prosecution claim, it is not required that the defendant in the criminal case admit his guilt. The commentary to the Restatement § 660 makes this clear: "Although the accused by his acceptance of a compromise does not admit his guilt, the fact of compromise indicates that the question of his guilt or innocence is left open. Having bought peace the accused may not thereafter assert that the proceedings have terminated in his favor." Restatement § 660, cmt. c (emphasis added). Perhaps the best illustration of this principle is a disposition pursuant to section 170.55 of New York's Criminal Procedure Law, which authorizes adjournments in contemplation of dismissal. In this type of compromise, the criminal case is adjourned before the entry of a plea, based on the prosecutor's belief that there will ultimately be a dismissal of the accusatory instrument in the interest of justice. N.Y.Crim. Proc. Law § 170.55[1]-[2]. When the charge is later dismissed, the person charged is "entitled to the full benefit of the record sealing and expunging provisions" that attend an acquittal, with the effect that charge is treated "as though it never had been brought." Hollender v. Trump Vill. Coop., Inc., 58 N.Y.2d 420 , 425, 461 N.Y.S.2d 765 , 448 N.E.2d 432 (1983). Nevertheless, such a termination extinguishes a malicious prosecution claim, see Smith-Hunter, 95 N.Y.2d at 197, 712 N.Y.S.2d 438 , 734 N.E.2d 750 (reaffirming Hollender's holding that an adjournment in contemplation of dismissal does not produce a "favorable termination") — not because the defendant has admitted guilt, but because it is a bargained-for dismissal of the criminal case.

3. The Dismissal in this Case

The undisputed facts of this case preclude Rothstein from carrying his burden of proof that he obtained a favorable termination of his criminal case. As set forth below, Rothstein fought hard and successfully to suppress the testimony of Malpas (the prosecutor) and Pellegrino (the FBI Agent) about why the government moved to dismiss the charges against him. Notwithstanding those efforts, the record shows that Rothstein and Sarnblad compromised the criminal case in a way that precludes Rothstein's malicious prosecution claim against Carriere.

The individual defendants in Rothstein's indictment were Rothstein, Sarnblad and Gordon. The indictment charged, among other things, that Gordon shipped obscene videos from Bizarre's offices in New York to Multi-Media in Indiana, which then shipped the videos to the Northern District of Florida. In November 1996, Rothstein and Sarnblad reached an agreement with the government to dismiss the claims against them in exchange for an affidavit by Sarnblad that implicated Gordon in the charged crimes. In the affidavit, Sarnblad admitted his involvement in Multi-Media's purchases of videos from Bizarre, and further stated that he supplied cash to a Multi-Media employee for delivery to Gordon as partial payment for the videos. In exchange for what Rothstein concedes was "a useful piece of evidence to the government" (Appellee's Br. at 45), Malpas agreed to dismiss the charges against Rothstein and Sarnblad. Having bought his peace with the government, Rothstein may not assert that the criminal case terminated in his favor.

Rothstein's arguments on this issue are easily dismissed. First, he contends that only Sarnblad bargained with the government for a dismissal. This is false. Sarnblad's affidavit implicating himself and Gordon was sent to Malpas by Katzberg, Rothstein's attorney in this case, who was paid by Rothstein to represent Sarnblad in the criminal case. Katzberg's letter stated as follows: "Enclosed, pursuant to our agreement to dismiss with prejudice the above-captioned indictment against defendants Sarnblad and Rothstein, is a photocopy . of [Sarnblad's] affidavit. As I understand it, the United States will now move to dismiss against Sarnblad and Rothstein (with, of course, the consent of the defendants). ". (Emphasis added). Three days earlier, when forwarding the draft affidavit for Malpas's approval, Katzberg also referred to "our agreement that the government will dismiss the . indictment against defendants Donald Sarnblad and Theodore Rothstein.. ". (Emphasis added). In light of those statements, the argument on this appeal that Rothstein did not bargain for the dismissal of the charges against him rings especially hollow.5

Second, Rothstein claims that Sarnblad's affidavit exonerated Rothstein. That claim is also false. Sarnblad's one-paragraph affidavit makes no mention of Rothstein, and is entirely consistent with the government's theory that Rothstein had a hidden interest in Bizarre. In any event, the argument misses the point. The dismissal of Rothstein's case precludes his malicious prosecution claim not because it is inconsistent with his innocence, but because it was the result of a consensual agreement to end the case against him.

Third, Rothstein contends that he made no concession of guilt in return for the dismissal of the indictment. The district court erroneously concluded that such a concession was necessary before a compromise of a criminal case can extinguish a malicious prosecution claim. As discussed above, New York law provides otherwise. By agreeing to provide useful evidence against Gordon in exchange for the dismissal of the charges against themselves, Rothstein and Sarnblad consented to a termination of the case that left open the question of their own guilt or innocence. The fact that the evidence was provided in an affidavit signed by Sarnblad, rather than by Rothstein, is of no moment. The indisputable fact is that the prosecutor dismissed the cases against both Rothstein and Sarnblad pursuant to a compromise with both. As a matter of law, that is all that was needed to defeat Rothstein's malicious prosecution claim, as "[a] termination is not favorable to the accused . if the charge is withdrawn or the prosecution abandoned pursuant to a compromise with the accused." Smith-Hunter, 95 N.Y.2d at 196-97, 712 N.Y.S.2d 438 , 734 N.E.2d 750 .

Finally, ignoring the documentary evidence that the case was dismissed based on the agreement described above, Rothstein argues that the indictment was dismissed as against him because "Malpas and Pellegrino learned that Carriere had lied to them." (Appellee's Br. at 12 see also id. at 13 (Malpas "[o]bviously determin[ed] that Carriere's claims were bogus").) There is no support for that claim anywhere in the record. Indeed, the record reveals that Rothstein vigorously and successfully sought to suppress any testimony on the subject by Malpas, the prosecutor who dismissed the case. As for Pellegrino, he testified that he believed Carriere at all times, and never had reason to believe he had lied. The jury never heard that testimony, however, because Rothstein moved in limine to preclude it and the district court granted the motion.

Malpas testified at trial by deposition. The portions of his deposition that were not read to the jury demonstrate that Katzberg's strategy on Rothstein's behalf was to preclude any testimony by Malpas about whether Malpas believed Carriere and why the government dismissed the charges:

Q: Have you had anything come to your attention through Mr. Carriere or otherwise that indicated that Mr. Carriere was lying when he told you that [Rothstein had an interest in Bizarre]?

Watch the video: Theo Rothstein talks about SCSU MBBs 6-0 Season Start (January 2022).