# Appendix — Pelley v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34086415_1404%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1943 - **Citation:** 318 U.S. 764 ## Text 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).