Appendix — Pelley v. United States

Gnthe Supreme Gourt of the Hnited States

OcToBER TERM, 1942

No. 645

Wit.iAM Duprey PELLEY, PETITIONER

Vv.

Untrep States oF AMERICA

No. 646

LAWRENCE A. BROWN, PETITIONER

v.

Untrep States oF AMERICA

No. 647

FreLLowsnip Press, INC., PETITIONER

Vv.

Unirep STATES or AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE SEVENTH

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the circuit court of appeals

(R. 646-664) has not yet been reported.

(1)

2

JURISDICTION

The judgments of the circuit court of appeals

were entered December 17, 1942 (R. 665-666). The

petition for writ of certiorari was filed January

12, 1943. The jurisdiction of this Court is in-

voked under Section 240 (a) of the Judicial Code,

as amended by the Act of February 13, 1925. See

also Rule XI of the Criminal Appeals Rules

promulgated by this Court May 7, 1934.

QUESTIONS PRESENTED

1. Whether the trial court erred in overruling

petitioners’ plea in abatement on the grounds (a)

that women were illegally excluded from the grand

jury; and (b) that special assistants to the At-

torney General conducted the grand jury proceed-

ings pursuant to the Act of June 30, 1906, which

is alleged to be unconstitutional as empowering

officers of an Exeeutive Department to perform a

judicial function.

2. Whether the indictment sufficiently alleges

offenses prohibited by the Sedition Act.

3. Whether the trial court erred in admitting

in evidence (a) writings and publications issued

by petitioner Pelley prior to the commencement

of the war; (b) analyses by experts tending to

show a relationship between German short-wave

broadeast propaganda and statements made by

petitioners after the outbreak of war; and (c¢)

expert analyses of newspaper editorials for the

ae es. eae

3

purpose of showing the falsity of certain of peti-

tioners’ statements relating to the state of publie

opinion.

STATUTES INVOLVED

| ‘The full text of Sections 3 and 4 of the Sedition

lAct of June 15, 1917, ¢. 30, Title I, 40 Stat. 217,

219, ¢. 136, 41 Stat. 1359, 1360 (50 U.S. C. 33, 34),

and of the Act of June 30, 1906, ¢. 3935, 34 Stat. 816

(5 U.S. C. 310), authorizing the Attorney General

jor attorneys appointed by him to conduct grand

jury proceedings, are set forth in the Appendix,

infra, pp. 24-25. ‘

STATEMENT

Petitioners Pelley and Fellowship Press, Inc.,

were convicted under counts 1 to 5 and 7 to

12, inclusive, and petitioner Brown under count

12 (R. 573), of a twelve-count indictment (R.

2-65). Counts 1 to 5 and 7 to 11 charged viola-

tion of Section 3 of the Sedition Act. The twelfth,

or conspiracy count charged a violation of Section

4, in that petitioners committed and conspired to

commit the acts prohibited by Section 3 (R. 2-8,

9-64). Petitioners Pelley and Brown were sen-

tenced to imprisonment for fifteen years and five

years, respectively (R. 601). Petitioner Fellow:

ship Press, Inc, was fined in the amount ot

* Petitioner Brown, and defendant Agnes Marian Hen}

derson, who was also convicted under count 12 but did no

appeal, were found not guilty as to counts 1 to 5 and 7 te

11, inclusive (R. 573). Count 6 was dismissed on motion of

the Government (R. 547-550, 572).

ASAE ENN BEND A My ate

4

$5,000.00 (R. 602). The court below affirmed the

convictions (R. 665-666).

The indictment may be summarized as follows:? |

Counts 1 to 5 and 7 to 9 (R. 2-8, 9-12) alleged,

in substance, that, on or about certain specified

days between December 22, 1941, and March 2,

1942, while the United States was at war with

Japan, Germany, and Italy, petitioners Pelley and

Fellowship Press, Inc., willfully made and con-

veyed false reports and statements printed in

their publications, the Galilean magazine and a

pamphlet entitled ‘‘We Fight for This Republic

Only!’’, with intent to interfere with the opera-

tion and success of the military and naval forces

of the United States and to promote the success

of its enemies. Specific false statements were

alleged in each count.’

Count 10 (R. 12-58) alleged in substance that

continuously from December 8, 1941, to the date

of the indictment, petitioners Pelley and Fellow-

ship Press, Inc. willfully and intentionally caused

and attempted to cause insubordination in the

armed forces of the United States, and count 11

?Since no error is assigned in respect of the sufficiency

of the evidence, it is not summarized here.

* In respect of the alleged false statements concerning

the extent of the damage to the fleet at Pearl Harbor,

and those that the United States had only “On Order”

armaments, the Government, to avoid disclosure of valu-

able information to the enemy, moved to dismiss count 6;

and in dismissing that count, the court instructed the jury

to disregard the allegations of those matters in the other

counts (R. 547-552).

5

(R. 58-59) charged that they willfully and in-

tentionally obstructed the recruiting and enlist-

ment service of the United States to the injury of

the service and of the United States, by means of

statements and articles in the Galilean magazine

and in the pamphlet ‘We Fight for This Republic

Only!’’, which were set forth in count 10 (R. 12-

58)" and incorporated by reference in count 11

(R. 59).

Count 12 (R. 59-64) alleged a conspiracy to

commit each of the substantive offenses deseribed

in the preceding counts and that in order to effect

the object of the conspiracy, petitioners did cer-

tain acts consisting of printing, publishing, dis-

tributing, and circulating issues of the Galilean

magazine, dated in the period December 22, 1941,

to March 2, 1942, and the pamphlet ‘‘We Fight

for This Republic Only!”’, containing articles and

statements set forth in count 10,

The statements and. articles alleged and_ set

forth in count 10, embraced a variety of topies:

Responsibility for the war was placed on the

United States and its officials (e. g. R. 13-14,

15, 16, 17, 18, 21, 22, 23, 49, 50); the purposes of

the Government in the war (e. g., R. 14, 27) and

‘The statements and articles were alleged to have ap-

peared in the pamphlet, and in Galilean magazine issues

dated December 22, 1941, December 29, 1941, January 5,

1942, January 12, 1942, January 19, 1942, January 26, 1942,

February 2, 1942, February 9, 1942, February 16, 1942, Feb-

ruary 23, 1942, and March 2, 1942 (R. 13-58).

509066—43——2

6

the motives of the nation’s wartime leaders (e. g.,

R. 15, 18, 39) were branded as base; difficulties in-

herent in prosecuting and financing the war ef-

fort were stressed (e. g., R. 27, 28, 29, 30, 31);

it was asserted that the raising of a large army

would have deleterious effects (e. g., R. 15, 18, 19,

26, 29), and claimed that the people of the nation

were lacking in spirit and were not united (e. g.,

R. 21, 22, 25, 27, 28, 29, 39, 49, 53, 54, 55); our

allies were said to be pursuing questionable ac-

tivities and to have unworthy designs (e. g., R.

24); the conduct of our army leaders in directing

the armed forces was castigated (e. g., R. 44, 55) ;

our enemies were praised and said to oceupy a

highly ethical position in the conflict (e. g., R. 17,

22, 23, 27) ; and it was emphasized that our defeat

was probable (e. g., R. 18, 23, 24, 25-26, 39, 45-

46, 55, 56).

ARGUMENT

I

1. Petitioners contend (Pet. 5-8, 22-29) that the

trial court erred in overruling their plea * in abate-

ment because women were improperly excluded

from the grand jury that returned the indictment

(R. 67, 72, 73, 265, 286). <A brief recital of the

facts in this regard will disclose the lack of foun-

dation for this contention. It had been the prac-

~ * The plea was fled by petitioners Pelley and Brown

only, and not on behalf of petitioner Fellowship Press, Inc.

(R. 69; but see R. 65).

per EEG POR ee ee

7

tice of the jury commissioner and the clerk of

the District Court to write to the judge of each

circuit court in each county within the district

asking for a list of names of persons qualified for

jury service. This practice evidently was thought

to afford a convenient method of assuring com-

pliance with Section 275 of the Judicial Code (28

U. S. C. 411) which required that jurors should

have the same qualifications as jurors in the high-

est court of the state. At one time, the form

letter which was thus sent to the state judges re-

quested a list of ‘‘good and capable men’’; but

after the absence of women jurors had been chal-

lenged in certain cases, the form letter was changed

more than two years ago so as to request a list of

‘persons’? who would be qualified for jury serv-

ice * (R. 266, 272-273).

Although it is true that there were no women on

the grand jury which returned the indictment in

this case, there is no proof that the names fur-

nished under the. new practice did not include

names of women, or that such names were ex-

cluded from the jury box from which the grand

jury was drawn.’

*The record is not clear as to whether any of the 1,400

names put in the jury box prior to the change in practice

were still there at the time of insertion of the names ob-

tained by the later practice (R. 265, 266, 273). This am-

biguity should be resolved in favor of the Government.

See Glasser y. United States, 315 U. S. 60, 80, 87.

' 'It was stipulated that the names of the jurors were

placed in and withdrawn from the jury box in accordance

8

Contrary to petitioners’ contention (Pet. 23-24),

the action of the clerk and jury commissioner in

obtaining from County Judges the names of per-

sons qualified as jurors, did not constitute a dele-

gation of their duties, or a discriminatory selec-

tion by any special group or any interested per-

son. Cf. Hill v. Texas, 316 U. S. 400; Glasser v.

United States, 315 U. 8. 60, 83-87. Though the

elerk and jury commissioner did not ‘go into”

the qualifications of the persons whose names they

obtained (R. 266) and made no examination or

special effort to ascertain whether names of

women were included (R. 266, 271, 272), the evi-

dence requires the conclusion that they personally

prepared the list, since they knew the names ob-

tained from each county before placing them in

the box (R. 266), and they excluded the name of

any person who had served during a given period

(R. 272). Cf. Glasser v. United States, supra,

at 85; In re Petition for Special Grand Jury,

50 F. (2d) 973 (M. D. Pa.) ; United States v. Mur-

phy, 224 Fed. 554 (N. D.N. Y.).*

with law, and that there were more than 300 names in the

box at the time the grand jury was drawn (R. 272).

* Even assuming a technical irregularity because of the

omission of women, the court below properly held there

would not have been error because no prejudice to peti-

tioners’ case was shown (R. 661), nor was any inferable,

since neither of them are of the sex alleged to have been

excluded. Wuichet vy. United States, 8 F. (2d) 561, 563

(C. C. A. 6); United States vy. Ballard, 35 F. Supp. 105,

107 (S. D. Cal.) An indictment cannot be quashed nor a

plea in abatement thereto sustained, merely because of an

9

2. Petitioners also challenge the indictment be-

cause the grand jury was assisted by two special

assistants to the Attorney General (R. 267-271,

283-286) ; they apparently contend (Pet, 30-31)

that the United States Attorney has the exclusive

authority to present a case to the grand jury.

In support of their position, petitioners, for the

irregularity in the drawing of a grand jury, where no

prejudice to the accused is shown. Hyde v. United States,

225 U. S. 347, 374; Agnew v. United States, 165 U. S, 36,

44; United States v. Parker. 103 F. (2d) 857, 859 (C.C. A.

3), certiorari denied, 307 U. S. 642; Walker v. United

States, 93 F. (2d) 383, 391 (C. C. A. 8), certiorari denied,

303 U. S. 644; Morrison vy. United States, 71 F. (2d) 358,

399 (C. C. A. 5), certiorari denied, 293 U. S. 589: Moffatt

v. United States, 232 Fed. 522, 528 (C. C. A. 8); Stock-

slager vy. United States, 116 Fed. 590, 596 (C. C. A. 9);

Brookman v. United States, 8 F. (2d) 803, 806 (C.C. A. 8).

Thus, had the defendant in Hill v. Texas, 316 U. S. 400,

been a white person, it would seem abundantly clear that

he could not complain about the exclusion of negroes where

no prejudice is otherwise shown.

Moreover, there is serious doubt whether the ruling of

the District Court on the plea in abatement was reviewable

at all upon appeal. Section 879, Title 28, U. S. Cc. (Sec-

tion 1011, Revised Statutes) unambiguously prevides:

There shall be no reversal in the Supreme Court or in

a circuit court of appeals upon a writ or error, for error

in ruling any plea in abatement, other than a plea to the

jurisdiction of the court, or for any error in fact.

And these provisions have been relied upon in at least

three cases as a bar to appellate review of the trial court’s

rulings on pleas in abatement in criminal cases, Mounday

v. United States, 225 Fed. 965 (C. C. A. 8), certiorari

denied, 239 U. S. 645; Biemer v. United States, 54 F. (2d)

1045 (C. C. A. 7), certiorari denied, 286 U. S. 566; Luxenberg

v. United States, 45 F. (2d) 497 (C. C. A. 4), certiorari

denied, 283 U. S. 820,

10

first time, make the extraordinary argument

(Pet. 8-10, 29-33) that the Act of June 30, 1906,

34 Stat. 816, authorizing the Attorney General

and his assistants to conduct grand jury pro-

ceedings is unconstitutional in that it permits ‘‘an

invasion of the Judiciary by the Executive De-

partment of the Government’’ (Pet. 33). The

contention is frivolous. Since 1789 the Attorney

General has been vested with plenary power over

the legal affairs of the United States to the full ex-

tent that it falls within the executive branch of the

Government (5 U. 8. C. 291). Uuited States v.

San Jacinto Tin Co., 125 U.S. 273, 280. Included

is supervisory and directory power over United

States Attorneys (5 U.S. C. 317); he may employ

other attorneys to assist district attorneys and has

power to supervise their conduct and proceedings

(5 U.S. C. 312). Cf. United States v. Virginia-

Carolina Chemical Co., 163 Fed. 66 (C. C. M. D.

Tenn.). Furthermore, the presentation of evi-

dence to a grand jury is not a judicial function. Cf.

State v. Price, 101 Ohio St. 50, 58-59, 60-61

(1920); Walsh v. Railroad Commission, 16 Cal.

(2d) 691, 694 (1940) ; People v. Bird, 212 Cal. 632,

640-643 (1931).

II

Petitioners’ contentions that the several counts

of the indictment were insufficient and that their

demurrers should have been sustained (Pet. 10-

12, 33-43), together with their related contention

based upon their motions for a biil of particulars

11

(Pet. 12, 43-45), are without merit. The court

below correctly indicated (R. 648) that since the

sentences imposed did not exceed that which law-

fully might have been imposed under any one of

the several counts, insufficiency of all counts is

required to warrant reversal. Pierce y. United

States, 252 U. 8.239, 252-253 ; Doe v. United States

253 Fed. 903, 904 (C. C. A. 8) ; cf. Brooks v. United

States, 267 U.S. 432, 441; Abrams v. United States,

250 U.S. 616, 619; Evans v. United States, 153 U.S.

608, 609; Claassen v. United States, 142 U.S. 140,

146.’

Petitioners challenge particularly count 10,

which the circuit court of appeals considered at

length (R. 648-651), on the ground that it failed

to allege ‘Show and by what means”’ petitioners

caused and attempted to cause insubordination in

the armed forees (Pet. 39). But this count

charges that for those purposes petitioners printed

and distributed statements and articles which oc-

cupy 45 printed pages in the record (R. 13-58),

fully satisfying all requirements of specificity.

Debs v. United States, 249 U. 8. 211, 212, 215;

Stokes v. United States, 264 Fed. 18, 21 (C. C0. A.

8); Pue v. United States, 253 Fed. 903, 904-905

(C. C. A. 8); United States v. Prieth, 251 Fed.

946, 955 (D. N. J.). It was not necessary to al-

lege that the statements were made under cireum-

* Petitioners Pelley and Brown did not demur to or

otherwise challenge the sufficiency of count 12 (see R. 164,

169-239, 239-242, 251). and are not in position to urge

reversal by reason of insufficiency of the indictment.

oie ORAL RR LATS

’ 466, affirming 254 Fed. 135; Debs v. United States, supra,

12

stances showing a clear and present danger of

bringing about the evils that Congress sought to

prevent. Pierce v. United States, supra, at 243,

244."

The sufficiency of the remaining counts is

equally clear. Contrary to petitioners’ argu-

ment (Pet. 37) it was not required to allege in

counts 1 to 5 and 7 to 9 ‘‘the truth in contrast to

the statements alleged to have been false’’, since the

indictment is sufficiently specific under the statute

when it alleges the untruth of petitioners’ state-

ments. The alleged false statements were ‘‘state-

ments’’ in the statutory sense as distinguished

from ‘‘opinions’”’. Pierce v. United States, supra,

at 251, 252, ef. dissenting opinion, pp. 255-256,

264, 266-267. Count 11 plainly alleged that peti-

tioners obstructed the recruiting services (R. 58-

59), and whether the actions alleged tended to

* Petitioners inferentially suggest that count 10 may be

defective for charging that they attempted to cause and

also caused insubordination (Pet. 38), but it is clear that

the count is not duplicitous. Balbas v. United States, 257

Fed. 17, 22 (C.C. A.1). See Debs v. United States. supra;

Crain v. United States, 162 U. S. 625, 634-636; Connors v.

United States, 158 U. S. 408, 410-411; Ackley v. United

States, 200 Fed. 217, 221 (C. C. A. 8). Cf. United States v.

Dembowski, 252 Fed. 894 (E. D. Mich.).

“ Indictments substantially in the same form have been

consistently upheld. See Pierce v. United States, supra;

affirming 245 Fed. 878; Schaefer v. United States, 251 U. S.

Kirchner v. United States, 255 Fed. 301, 303-304 (C. C. A. 4),

certiorari dismissed, 250 U. S. 678; Hickson vy. United States,

258 Fed. 867, 868-869 (C. C. A. 4).

13

have that effect was for the jury. Pierce y.

United States, supra, at 244. It was not neces-

sary to allege where the obstruction “took place

and of what it consisted’’ (Pet. 39). Stokes vy.

United States, supra; Debs v. United States,

supra. Contrary to petitioners’ contention (Pet.

42, 43), it was not necessary that count 12 allege the

names of the agents whose acts implicated peti-

tioner Fellowship Press, Ine. Cf. Zito v. United

States, 64 F, (2d) 772, T73 (C. OC. A.7). The con-

spiracy, which is the gist of the offense (Frohwerk

v. United States, 249 U. §. 204, 210), was clearly

alleged.

III

1. Petitioners contend it was error to admit in

evidence certain of Pel ey’s pre-war writings and

publications (Pet, 12-13, 45-51). They argue

these exhibits * were not relevant to any issue in-

(1) “The Door to Revelation, An autobiography by

William Dudley Pelley” (1939) (Gov. Ex. 13, R. 305-

315); (2) Pelley’s Weekly, issue of March 4. 1936, with

article entitled, “German Americans Should Support the

Commonwealth” (Gov. Ex. 15, R. 499-505; identical ex-

cept for variation in title with Gov. Ex. 20, R. 513) and,

the issue of April 22, 1936, with article entitled “Pelley Ad-

dresses Germans on National Relationships” (Gov. Ex. 16,

R. 505-506) ; (3) A handbook on the Silver Shirts Legion

(R. 305) entitled “One Million Silvershirts by 1939” (1938)

(Gov. Ex. 17A, R. 333, 512-513); (4) an article from the

Liberation Magazine, issue of July 28, 1938, entitled.

“What All Non-Nazis Should Know About the Swastika

and Its Hidden Meaning” (Gov. Ex. 18. R. 507-508) ; (5)

a leaflet or pamphlet entitled, “The Scourge of Cords”

aenasan LESSEE

NSP