William J. Brennan, Jr.

“ Concededly, direct evidence of knowledge by the petitioners of the order of July 2 is wholly lacking and the case for conviction rests entirely upon circumstantial evidence.
The proof upon which reliance is placed consists of evidence (1) that the petitioners knew on June 29, 1951, that the order was to be entered on July 2, and (2) that the petitioners made certain statements to the press at the time of their surrender almost five years later.
First. Manifestly, foreknowledge that an order might come into existence does not prove knowledge that it did come into existence. ”

“ The purpose of that order, as its caption 'Order on Mandate' shows, was to enter an order in the District Court to give effect to the Mandate of this Court affirming the convictions of the Dennis defendants. But for the necessity of entering an order for that purpose there may well have been no surrender order. No statute or rule of court, even a local rule of the District Court, can be pointed to as requiring inclusion of the surrender provision. The bondsman who stands to lose the posted bail, not a surrender order, is usually counted on to produce the defendant. ”

“ The Government's lack of confidence in the proofs to show actual knowledge is implicit in its effort to sustain the convictions on a theory of constructive knowledge derived from the events of June 28 and from the evidence that on June 29 the petitioners and the other Dennis defendants were told by the attorneys that they must be in court on July 2. ”