(dissenting).
The court’s opinion violates the long established and essentially required practice of considering separately the different appeals of the four appellants, presenting in all eighteen contentions of error. The opinion’s pages of high rhetoric of the obvious, denouncing those who would seek to overthrow the government *179by force, creates no excuse for such a violation. Rather it enforces our obligation to proceed in the non-Bolshevik method of such separate consideration of each of the several contentions of each defendant presented here. It is pertinent that the trial judge found no such condign wickedness in the demeanor of the defendants before him or in the reports of the probation officer. Of the 18 U.S.C. § 3 cases he imposed less than the maximum sentences and by making some of the sentences concurrent, none received the maximum sentence.
I. The Convictions of Kremen, Ross and Coleman of Violating 18 U.S.C. § 1071.
A. What Must Be Proved.
To convict one of violating Section 1071 the Government must prove that he harbored or concealed, so as to prevent discovery or arrest, any person for whose arrest a warrant had been issued under any law of the United States. Moreover the defendant must be shown to have harbored or concealed for the purpose of preventing discovery or arrest “after notice or knowledge of the fact that a warrant or process had been issued for the apprehension of such person”.
Thus the Government must prove four things: the issuance of a federal warrant, the act or acts of harboring or concealing, a purpose to prevent discovery or arrest, and the knowledge of the defendant of the existence of the federal warrant. Mere occupancy of a house with a fugitive is not sufficient, and “General malevolence is not enough if the specific knowledge required by the statute is lacking.” Fulbright v. United States, 8 Cir., 1937, 91 F.2d 210, 212.
There is no question that a federal warrant had been issued for the arrest of Steinberg on June 20, 1951 after his indictment on a charge of violating the Smith Act. 18 U.S.C. § 2385. The issue here is whether, as to each defendant considered individually, the Government proved acts of harboring or concealing Steinberg in order to prevent his discovery or arrest and the knowledge of each that a federal warrant had been issued for his arrest.
B. What Was Proved As To Each Defendant Accused of Violating 18 U.S. C. § 1071.
(i) Shirley Kremen. There was ample evidence introduced to show that this defendant harbored or concealed Steinberg in order to prevent his discovery or arrest. She procured the secluded cabin “for her sick brother,” did the shopping and housework, and helped establish a false identity for herself and Steinberg. These are acts of harboring and concealing done at least to prevent Steinberg’s discovery.
However, the Government failed to prove that she did these acts to prevent discovery with knowledge that a federal warrant had been issued for Steinberg’s arrest. The evidence showed only that she knew she was hiding him. It did not go further. There was no showing that she knew Steinberg’s actual identity, his position in the Communist Party or even that he was a member of that Party. There is no evidence in the record that indicates that Mrs. Kremen was a Communist or even sympathetic to the aims and purposes of that Party.
There are many reasons why Mrs. Kremen might have hidden Steinberg. Among others, she might have known of the existence of the federal warrant. But equally as possible she might have thought that state police were seeking the man she knew as “Newberg”, and she might have had a reason to protect him. She might have been a Communist or sympathetic to the Communist Party and told that Steinberg was to go “underground” in order to assume a new identity so that he could act in the future without being identified as a Communist.
The Government had the burden of negativing these alternative inferences. It, but not the majority opinion, recognizes this. The Government argues that an analogy to a stolen property situation should be applicable. One found with *180such property has the burden of explaining how he received it. The Government asks this court to place a similar burden on one found in the presence of a fugitive when such a person has done acts of concealing to prevent discovery. However, unlike personal property Steinberg could transport himself from place to place and could give Mrs., Kremen any number of reasons why she should hide him. There is no reason to infer that he told her of the warrant rather than some other reason. The Government’s position would place upon defendants in this type of case the burden of proving their innocence.
Mrs. Kremen’s conviction on this count should be reversed.
(ii) Samuel Coleman. The evidence indicates that Coleman arrived at the Twain Harte cabin only a week before the arrest on August 27, 1953 although Kremen, Steinberg and perhaps Ross had been there since June or July of that year. The evidence produced by the Government showed only that Coleman had lived at the cabin and knew who Stein-berg was. There was no evidence of any acts of harboring or concealing. He was not shown to have even helped with the housework or shopping. His mere presence in Twain Harte for a week does not constitute harboring or concealing Steinberg to prevent his discovery or arrest. It- is more likely .that Steinberg was concealing Coleman as far as the evidence in the record is concerned. There is no evidence at all that Coleman knew that a warrant for Steinberg’s arrest had been issued.
Coleman’s conviction on this count should be reversed.
(iii) Carl Ross. To show Ross’ acts of harboring or concealing Steinberg the United States introduced two documents found on his person at the time of his arrest. One was the “contact” letter mentioned in the majority opinion which indicated that Ross was to secretly meet someone. The other was a grocery list calling for large quantities of food. The-jury could have inferred that Ross was: relaying messages to and from the people at the cabin and was providing Steinberg with food. These are acts of harboring or concealing to prevent discovery or arrest.
The evidence to show why Ross did these acts is as follows: Ross knew that Steinberg was a Communist Party member, that he had altered his appearance, and that he was living at a remote cabin. Ross was relaying messages to and from the cabin. Ross was a member of the Communist Party himself. The Government apparently urges that the jury could draw the following inferences. Communist Party members were interested in Smith Act indictments, especially of members who were leaders and whom they knew personally. Such indictments were publicized in the Communist Party press as well as in newspapers of general circulation. It was likely that Ross, being a Communist, would have read of the indictment of Steinberg, and that Ross would have realized that a war-rent for arrest often follows an indictment. When he discovered Steinberg using an assumed name, having an altered appearance, and living in a remote cabin, he would have inferred that Steinberg was hiring from such a warrant.
However, there is no showing that Steinberg’s indictment or warrant for arrest was ever publicized in the Communist Party press, or that, if they were so publicized, that Ross had read about it. Ross, like Mrs. Kremen, could have hidden Steinberg for any number of reasons.
The court in the Fulbright case, supra, concerning a prosecution under Section 1071, made the following observations which are relevant here:
“Knowledge that the fugitives were evading officers in general or that a state government had issued warrants for their arrest is immaterial. Such acts are beyond the purview of the statute. * * *
“Every circumstance pointed out is consistent with knowledge that *181Langan and Sparger [the criminals harbored in the Fulbright case] were criminals, but it is equally consistent with appellant’s ignorance of outstanding [federal] warrants for their arrest.”
Fulbright v. United States, 8 Cir., 1937, 91 F.2d 210, 213, 214.
II. Conspiracy of Kremen, Ross and Coleman to Violate 18 U.S.C. § 1071.
Since the Government has failed to prove a case of harboring, as that crime is defined in Section 1071, against any of these three defendants it follows that the count charging a conspiracy to harbor Steinberg must fall as well for the same reasons.
III. The Convictions of Kremen, Ross, Coleman and Steinberg of Violating 18 U.S.C. § 3.
A. What Must Be Proved.
All of the appellants were convicted of being accessories after the fact to Robert Thompson’s Smith Act conviction. Section 3 of Title 18 provides:
“Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.”
Therefore to convict appellants the Government must prove that (1) they knew Thompson had committed an offense against the United States, (2) they received, relieved, comforted or assisted Thompson, and (3) they did so in order to hinder or prevent his punishment. Again the evidence as to each appellant must be considered separately.
B. What Was Proved As to Each Defendant Accused of Violating 18 U.S.C. § 3.
(i) Shirley Kremen. Mrs. Kremen received, relieved, comforted and assisted Thompson by providing food and housing for him. However, there is no evidence to support an inference that she did so to prevent his punishment or that she had knowledge that Thompson had committed an offense against the United States. Thompson arrived at the cabin only a week before the arrest although Mrs. Kremen had been there some three months. There is no evidence she knew who Thompson was, that he was a Communist or that he was hiding from anyone. The evidence is just as consistent with the inference that she was hiding Steinberg and regarded Thompson as a trusted friend of Steinberg’s who had come to visit or discuss business as it is with the inference of her knowledge as to who Thompson really was. No evidence was admitted which would show that she had any reason to follow in the newspapers the first Smith Act trial where Thompson was convicted, the appeal or Thompson’s “bail jumping”.
The conviction as to this count should be reversed.
(ii) Carl Ross. Ross’ grocery shopping activities and contacts with others to bring information to the cabin constituted acts of receiving, relieving, comforting and assisting Thompson. The question is whether he knew that Thompson had committed an offense against the United States and whether Ross’ assistance was designed to prevent Thompson’s punishment. Ross knew Thompson as a Communist leader before Thompson’s Smith Act conviction. Ross disappeared from his Minneapolis, Minnesota home shortly after that conviction and established a false identity for himself. He aided Thompson after seeing him with dyed red hair, noticing a large weight increase and learning that Thompson was using the name of Brennan. The jury could reasonably infer that Ross was aware of Thompson’s Smith Act conviction and acted to prevent his punishment.
There was sufficient evidence to support the judgment as to this count.
(iii) Samuel Coleman. Coleman procured a car for Thompson and traveled with him to isolated resorts in Missouri and Montana. He helped establish a *182false identity for Thompson as “Brennan.” These are acts of receiving, relieving, comforting or assisting Thompson. The jury could reasonably infer that Coleman knew that Thompson had been convicted of violating the Smith Act and assisted him in order to prevent his punishment. Coleman was an officer of the Communist Party and well acquainted with Thompson. He disappeared from his New York home, leaving his wife and children, shortly after Thompson’s conviction. He knew Thompson was dyeing his hair red and using a false name. Coleman established a false identity of his own. The jury could infer that such an official would know of the Smith Act conviction of one of the top leaders of the Communist Party.
There was sufficient evidence to support the conviction as to this count.
(iv) Sidney Steinberg. Steinberg, who was apparently in charge of the group at the cabin, provided lodging for Thompson. This was an act of receiving, relieving, comforting or assisting him. The jury could reasonably infer that Steinberg knew that Thompson had been convicted of violating the Smith Act and had assisted him in order to prevent his punishment. Steinberg and Thompson were both high leaders of the New York Communist Party. Steinberg knew Thompson, having worked with him a number of years including the year Thompson’s trial began.
There was sufficient evidence to support the conviction as to this count.
IV. Conspiracy of Kremen, Ross, Coleman and Steinberg to Violate 18 U. S.C. § 3.
Since the Government has failed to prove a case of assisting Thompson to prevent his punishment with knowledge that he had committed a crime against the United States as to appellant Kremen, it follows that the count charging her with a conspiracy to so assist Thompson must fall as well for the same reasons. The counts charging Coleman, Ross and Steinberg with a conspiracy to so assist Thompson should be affirmed.
V. Search and Seizure.
Is the taking to San Francisco of all of the personal property of the four appellants from the four-room house and the two nearby automobiles, and the failure to make any search thereof until in San Francisco some two hundred miles from the house, a violation of the Fourth Amendment provision that appellants shall be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” ?
Certainly the seizure and transportation to San Francisco, the home of none of the appellants, of all their personal property other than that found to constitute evidence was beyond the authority of the federal officers. No question was asked of appellants whether they desired a caretaker to watch the house to see that such other property as the television set, etc., was not stolen. While this wrong done is not cognizable in this case it makes clear that the intent was to search their “papers, and effects,” in San Francisco and not in the place of arrest which may have been authorized by Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 and other cases.
In my opinion such a search of the “papers, and effects” in San Francisco violates the Fourth Amendment. The situation is analogous to that in United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, recognized as still the law in United States v. Rabinowitz, 339 U.S. 56, at page 62, 70 S.Ct. 430, 94 L.Ed. 653.
Rehearing denied: DENMAN, Chief Judge, dissenting.