(concurring).
*609Agreeing that these convictions must be set aside for the reasons stated in Judge MILLER’S opinion, agreeing too that the way should be left open for a new trial of all the appellants, I append this separate statement only because of my belief that some of the factors relied upon by the majority in reaching the latter conclusion are impermissible in view of what was said in the Yates case. 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356. My concurrence in that part of today’s decision which holds that the appellants are not at this stage of the proceedings entitled to directed judgments of acquittal is, therefore, based upon reasons somewhat different from those stated by my colleagues.
In our former review we upheld the conviction of these appellants on both the organizing and advocating phases of the conspiracy charge. In that decision considerable reliance was placed upon evidence of the tenets and teachings of the Communist Party to connect the defendants with illegal rather than abstract advocacy. The present majority opinion again relies upon this evidence, or so much of it as relates to the advocacy charge, to show the character of the utterances alleged to have been made. I do not agree with the statement that, “Those [prior] conclusions with respect to the objectives of the Communist Party, are not affected by Yates.” (supra, 253 F.2d 607). In Yates it was held that the illegal conspiracy could not be proved by showing the defendants’ identification with the Party and inferentially with its tenets. As stated in that opinion, “We must, then, look elsewhere than to the evidence concerning the Communist Party as such for the existence of the conspiracy to advocate charged in the indictment.” 354 U.S. at page 330, 77 S.Ct. at page 1083.
Moreover, the effort to discern the germ of illegal advocacy in a handful of equivocal statements culled from the present record seems to me an unrewarding one. Standing alone, these statements, with the possible exception of those attributed to appellant Allan, hardly amount to the incitement to action of the kind defined in Yates. At this stage of the proceedings, however, it is unnecessary to find direct evidence of actual illegal speech to warrant the disposition which we have determined. It is enough that the circumstances do not dispel the possibility “that advocacy of action was also engaged in when the group involved was thought particularly trustworthy, dedicated, and suited for violent tasks.” Yates, 354 U.S. at page 332, 77 S.Ct. at page 1084.
A comparison of the circumstances weighing against the present appellants with those circumstance stressed in denying acquittal to nine of the defendants in Yates reveals a striking similarity. Like the Yates defendants, the present appellants were associated, although more closely, with the founding and operation of a school where Marxist theory and technique comprised the entire curriculum. The school was closed to the public. To be sure, the statements in the present record attributed to the defendants in their teaching were equivocal and, taken singly, susceptible of a Constitutionally protected interpretation. However, viewed as a consistent pattern and considered along with the appellants’ alleged preparation to go “underground,” and their efforts to concentrate membership in the basic industries, the evidence is sufficient to justify this court in affording the government an opportunity to retry the appellants with the knowledge that all of its evidence must be channeled into the “advocacy” rather than the “organizing” charge. For that reason I agree with the majority in concluding that the record now before us is not too tenuous to justify the retrial of the appellants under proper legal standards. 354 U.S. at page 332, 77 S. Ct. at page 1084.