Opposition Brief — Macke v. United States

Bkeubont :

CITATIONS

Brady v. United States, 24 F. 2d 399

Brown v. United States, 150 U. 8. 93

7, 9, ” 13,14

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16

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15

12

10

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15

Les A AR OE BT ae

i

\

Cases—Continued

United States v. Kaiser, 188 F, 2d 219, certiorari denied, 320

Page

Wy, BBR, ona onc ciee cn arena pete cach ence nenneg 10

13

‘United States v. Novick, 271 U. 8. 201..............-----

United Staies v. Scharton, 285 U. 8. 518... ......-..----- 12,18

United States v. Zeulé, 187 F. 24845_..........-..---.-- 11

Statutes:

Act of August 24, 1942, c. 555, 56 Stat. 747:

Section 1 (as amended July 1, 1944, 58 Stat. 649, 667,

18 U. 8. C., Supp. V, 800a).......-....-...-.-25 4,11

Alien Registration Act, 1940 (Act of June 28, 1940, c. 439,

ee. OS GO). ov cdc iia 20d ccc ae

| ay Pee eee Herma er ee S| 2,12

Section 1044 of the Revised Statutes, as amended by the

Act of December 27, 1927, 45 Stat. 51, 18 U.S.C. 582. 4, 10, 11

Miscellaneous: ‘

H, Rep. 2051, 77th Cong., 2d sess_..........-. -.------ 13

Regulations governing the registration of aliens under the

Alien Registration Act, 1940 (5 F. R. 2836-2841):

5 | ener ene ens ee Tere. 5

© 9O.6 @ (0G... 22... nn sadn n end ee oe 5

OE Se Raper ee eee een nenn oe “ 6

S. Rep. 1544, 77th Cong., 2d sess... .....-.-..----.---- 13

No. 1113

Orro HERMANN WILHELM Macks, sien Jo-

HANNA MULLER AND Inm@aRp STuRN, PETI-

TIONERS

ei v.

Unttep States or AMERICA Fe es

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS POR THE SECOND

CIRCUIT :

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the circuit court of appeals

(R. 553-555) has not yet been reported. -

JURISDICTION

S

The judgment of the cireuit court of appeals

was entered February 7, 1947 (R. 555). The peti-

tion for a writ of certiorari was filed March 10,

1947. The jurisdiction of this Court is invoked

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

amended by the Act of February 13, 1925. See~-

2

also Rules 37 (b) (2) and 45 (a) of the Federal _

Rules of Criminal Procedure.

1. Whether the defense that prosecution of the

petitioners was barred by the statute of limita-

tions is open to them in this Court, no plea or

defense to that effect having been interposed

below; and, in any event, whether the general

three-year statute of limitations is applicable to

the offense charged in the indictment.

2. Whether the trial court’s instructions to the

jury were deficient in failing to distinguish be-

tween the Government’s direct proof of a con-

spiracy and the proof adduced through pr--trial

admissions and cross-examination of petitioners.

STATUTES AND REGULATIONS INVOLVED

The conspiracy statute (Section 37 of the Crim-

inal Code; 18 U. S. C. 88) provides:

If two or more persons conspire either to

commit any offense against the United

States, or to defraud the United States in

any manner or for any purpose, and one or

more of such parties do any act to effect the

object of the conspiracy, each of the parties

to such conspiracy shall be fined not more

than $10,000, or imprisoned not more than

two years, or both.

The pertinent provisions of the Alien Regis-

tration Act, 1940 (Act of June 28, 1940, e. 439,

Title III, 54 Stat. 670, 679-670; 8.0. 8. C.

3

"gnc. BL wacaiea

SC eebee vials tale

States], and (3) remains in the United

States for thirty days or longer, to apply

for registration and to be fingerprinted be-

fore ” ne of denen eens at ’

aan 33. (a) All pa Srersaig 7 -

tration and fingerprinting under section 31

shall be made at post offices or such other

places as may be designated by the Com-

missioner [of Immigration and Naturaliza-

tion].

- am > * -

Sec. 34. (a) The Commissioner is au-

thorized and directed to prepare forms for

the registration and fingerprinting of aliens

under this title. Such forms shall contain

inquiries with respect to (1) the date and

place of entry of the alien into the United

States; (2) activities in which he has been

and intends to be engaged; (3) the length

of time he expects to remain in the United

States; (4) the criminal record, ifvany, of

such alien; and (5) such additional mat-

ters as may be prescribed by the Commis-

sioner, with the approval of the Attorney

General.

SAR RS OE ae RRR OR Sn

4

Src: 36. * * * > . j

(c) Any alien * * * who files an

application. for - _registration containing

statements. known by him to be false, or

who procures or attempts to procure regis-

tration of himself or another person

through fraud, shall upon conviction

thereof, be fined not to exceed $1,000, or

be imprisoned not more than six months, '

cme: - *

Section 1044 of the Revised Statutes as amended

by the Act of December 27, 1927, c. 6, 45 Stat. 51

(18 U. S. C. 582), provides:

Sec. 1044. No person shall be prose-

cuted, tried, or punished for any offense,

not capital, except as provided in section

1046 [18 U. S. C 584], unless the indictment

is found, or the information is instituted,

within three years next after such offense

shall have been committed: * * *

Section 1 of the Act of August 24, 1942, 56

Stat. 747, as amended by section 19 (b) of the

Act of July 1, 1944, 58 Stat. 649, 667 (18 U.S. C.,

Supp. V, 590a), provides:

The running of any existing statute of lim-

itations applicable to any offense against the

laws of the United States (1) involving de-

frauding or attempts to defraud the United

States or any agency thereof whether by con-

spiracy or not, and in any manner, or (2)

committed in connection with the negotia-

tion, procurement, award, performance, pay-

‘ ment for, interim financing, cancelation or

‘) is. comniatals with peas sr Gems”

_ tion of the present war, or-with any disposi-

tion of termination inventory by any war

contractor or Government agency, shall be

suspended until three years after the termi-

nation of hostilities in the present war as

. proclaimed by the President or by a con-

current resolution of the two Houses of

Congress. This section shall apply to acts,

offenses, or transactions where the existing

statute of limitations has not yet fully run,

but it shall not. apply to acts, offenses, or

transactions which are already barred by

provisions of existing law. .

The pertinent portions of the regulations govern-

ing the registration of aliens, issued by the Com-

missioner of Immigration and Naturalization on

August 8, 1940, with the approval of the Attorney

General (5 F. R. 2836-2841) read as follows:

§ 29.3 (a) Registration shall commence

on August 27, 1940. Any person in the

United States on that date who is required

to register and be fingerprinted, or to

register, may do so at any time on or before

December 26, 1940.

* * * OF); a

§ 29.4 (1) (10) The alien, if fourteen

years of age or older, shall’ state any activi-

ties in addition to his occupation im‘ which

he is, has been within the past five years,

or intends to be engaged. The alien shall

6

list the names ofall clubs, lodges, groups,

organizations, or societies to which he be-

longs or in’ which he participates. If the

alien holds any office or official position in

any of these clubs, lodges, groups, organi-

zations, or societies, he shall so state.

.

* * + * *

§ 29.4 (1) (15) The alien, if fourteen

years of age or older, shall state whether,

during the past five years, he has been

affiliated with or active in (a member of,

official of, a worker for) organizations, de-

voted in whole or in part to influencing or

furthering the political ‘activities, public

relations, or public policy of a foreign gov-

ernment. If the alien has been affiliated

with or active in any such groups or organ-

izations, he shall list them. If he holds an

office or official position in any such group

or organization, he shall so state. The

registration officer shall not undertake to

enumerate or define any such group or

organization, he shall so state. The regis-

tration officer shall not undertake to enu-

merate or define any such groups or

organizations.

STATEMENT

An indictment in one count was returned

against petitioners and 105 others in the United

States District Court for the Eastern District of

New York on August 2, 1944, charging them with

conspiracy to defraud the United States, in viola-

tion of Section 37 of the Criminal Code, supra, p. 2

-(R. 4-18).

ee

States, No. 51, O. T. 1946, decided December 9,

1946. See pp. 6-14 of the brief for the United

States in that case.’ The indictment charged

that the defendants had conspired with certain

German consular officials to conceal the defend-

ants’ affiliation with and activities in the Nazi

party in the United States, and to defraud the

United States of its lawful governmental func-

tion of securing such information when the de-

fendants registered in 1940 under the Alien

Registration Act (R. 11-15).

Government witnesses testified as to the activi-

ties of the Nazi party in the United States spon-

sored and directed by German consular officials

here (R. 38-89, 134-154), the recruitment of

members and the collection of dues (R. 41-58),

and the festivities and meetings held under the

auspices of the German consulate (R. 70, 80, 139-

149, 194-197, 207-209). The Government’s evi-

dence further showed that petitioners’ names were

1 This was petitioners’ second trial on the same indictment.

In United States v. Ausmeier et al., 152 F. 2d 349, the con-

victions of petitioners and 14 others named in the indictment

were reversed because of errors in the instructions to the jury,

which were not repeated here (see R. 525-526). Thereafter,

when the case was called for retrial, the other defendants

pleaded guilty (R. 35-36) and only petitioners went to trial.

ete ENN NOY

asc antmnees

See oe NN BH

_ ‘

on the Consulate’s list of. party members,. that

they paid: dues. regularly and that. they hat been

sent invitations to Party festivities in this. coun~

try (RB. 67, 70+-72,. 75; 280, 358,. 357-358). It was

also shown that after the enactment of the Alien.

Registration Act of 1940 consular offieials sent

letters:to all persons on the list of party members;

including’ petitioners; requesting. them:to come to

the consulate (R..70-72,.74+75). These: members:

came to: the consulate in: groups (Ri 82-88, 152,

153), and were there given specific instructions.

as: to the form: of: the: answers: to be given in ré-+

sponse to certam questions in the alien: registra-

tion form (R. 88-87,.152). Asim the Fiswick

case, petitioners’ responses in their respective

registration forms followed: the instructions that

had: been giver by the consular officials: (R}.358-

359). In: response to Item: 15. of the form). ree

quiring: information as-to-any affiliation of the

registrant, within the: preceding: five years; with

organizations devoted: in: whole or im part to in-

fixencing or farthering the political activities, pub-

lic relations, or public: policy of a: foreign. govern

ment, each of: the: petitioners- wrote: (Macke, Ri.

378, 428; Muller, R. 474, 478; Sturn, R. 501-562) :

I:am a non-resident member of the Na-

tional Socialist German Workers: Party in

Germany [giving the date 1936 or 1937].

“ * * No activities in the United States:

The: Government: also: introduced as: against

petitioners individually (R. 362; see-infrayp; 14)

saiiie ad in Fiswictk. Hlowever, oni’ the crous-ex

amination of petitioners, who took the staid: in.

their own defense, certain’ additional evidence was

adduced whieh was not present in the Fiswiek case.

For example;: petitioners testified that they had

joined the Nazi‘ party in: the United States and

were members during. the period covered by theit

answers in‘ their registration forms: (Macke, RB.

407, 411-412, 426; Muller, R: 472-473; Sturn,’ R.

502) ; that they paid dues(Macke, -R. 426; Muller,

R. 473, 474; Sturn, RB. 501) and attended party

functions (Macke, R. 416-417, 419-421, 424-425;

Muller, R..473,-474;. Sturn, R. 497-499); and, in

effect, that their responses to Item 15-of the regis-

tration form’were false (Macke, ‘R. 414-415, 424,

429; Muller, R: 478; Sturn, R. 502). Moreover;

Macke testified that, acting under instructions the

Garnian' cétisublr’ offitialy hind ‘givéii ‘him in’ 1941,

he destroyed his party book and pins. (R. 418);

and ' Muller testified that ' she receiveda* slip’ of

paper frorti’ the’ constilar’ officials instietirig” her

how to-answer Item 165 of the registration’ form

which she used and’ then destroyed ‘after’ filling

out thé form’ (RY 476-477: cf. Stirh‘at B.°502).

arent - T= 8 na <TR CR OIE SRS ROOT

Governinast’s! due’ th elie wid tlieenadadaly

oot A RII Am =:

10

Petitioners were found guilty by the jury (R. 3,

530), and were sentenced as follows: Macke, to

imprisonment for three months; Muller, to im-

prisonment for six months; and Sturn, to im-

prisonment for 30 days (R. 3, 589-544). On ap-

peal to the Circuit Court of Appeals for the

Second Circuit, the convictions were affirmed

(R. 555).

ARGUMENT

1. Petitioners’ first contention (Pet. 10-11) is

that the prosecution was barred by the three-year

statute of limitations (18 U. 8S. C. 582, supra, p.

4). As petitioners concede, no such plea for

defense was raised in the trial court (Pet. 8), and

it does not appear that the contention was raised

in the court below (see R. 546, 548, 550, 553-555).

Consequently, the asserted bar of limitations can-

not be advanced here. It is settled that if any

matter of defense or other matter which might

operate to bar or abate prosecution is not raised

in the trial court, it may not thereafter be raised

for the first time on appeal or otherwise.? And

* See, e. g., Miller v. United States, 41 App. D. C. 52,

certiorari denied, 231 U. S. 755 (former jeopardy) ; Brady v.

United States, 24 F. 2d 399, 405 (C. C. A. 8) (same);

United States v. Ginsburg, 96 F.2d 882, 885-886 (C. C. A.7),

certiorari denied, 805 U. S. 620 (entrapment); United

States v. Kaiser, 188 F.2d 219 (C. C. A. 7), certiorari denied, °

320 U. S. 801 (same) ; Powers v. United States, 223 U. S. 308,

312 (objections to method of summoning or empaneling

grand jury); Burchett v. United States, 194 Fed. 821, 825

(C. C. A. 4) (same) ; Hagner v. United States, 54 F. 2d 446,

ll .

plieability of the statute of limitations. \Forth-

offer v. Swope, 103 F. 2d 707, 709 (O..0. A. 9);

Capone v. Aderhold, 65 F. 2d 120, 131 (©. 0. A.

5); Pruett v. United States, 3°F. 2d 353, 354

(C. 0. A. 9). | | |

In any event, the prosecution was not barred

the statute of limitations. It is conceded that,

as petitioners assert (Pet. 10), the conspiracy

charged in the indictment must be deemed to have

terminated upon the filing of the alien registra-

tion forms in 1940 (see Fiswick v. United States,

supra, slip opinion, pp. 4-5). However, we

disagree with petitioners’ conelusion that the

three-year statute of limitations (18 U. 8. C. 582,

supra, p. 4) applies rather than the broader

period of limitation provided by special wartime

legislation (18 U. 8. C., Supp. V, 590a, supra,

pp. 4-5). Petitioners’ conclusion is predicated on

the assertions that since the Alien Registration

Act of 1940 provided no penalty for defrauding

the United States by filing a false registration

447-449 (App. D. C.), affirmed on other grounds, 285 U, S.

427 (venue) ; Gowling v. United States, 64 F, 2d 796, 798

(C. C. A. 6) (same) ; United States v. Zeuli, 187 F. 2d 845,

847 (C. C. A. 2) (same); Jackson v. United States, 72 F. 2d

764, 765 (C. C. A. 8) (defense that defendant charged with

embezzlement as custodian of bankrupt estate was not the

custodian).

* The signing of such forms was the only overt act alleged

as to petitioners (R. 16, 17). Other overt acts alleged to

have been committed by other defendants in 1942 (R. 17-18)

were not relied upon or established at the trial.

eee

ei th a ee

Be A Ig

statement, it would have been sufficient to plead =

and prove a’ conspitacy wilfully to file a pre

registration’ statenient, and that, therefore, the

allegations as to'defratiding the United States,

upon which the applicability of the special ex-

tension act depends, were mere surplusage. The

fallacy of this reasoning is that it misconceives the

gist of the offense charged in the indictment.

Petitioners were not. dharged with substantive

violations of or a conspiracy to violate the Alien

Registration Act. Had they been so charged, we

concede that the averments as to defrauding the

Government would not have been required or

warranted and could not, therefore, have brought

the case within the broader statute of limitations

which is applicable only to offenses involving

defrauding or attempt to defraud the United

States.’’ See United States v. Scharton, 285

U. 8. 518, cited by petitioners, which held to that

"effect with respect to an indictment under the

Revenue Act of 1926 for wilfully attempting to

evade taxes. Here, petitioners were indicted

under the second part of the conspiracy statute

(18 U. S. C. 88, supra, p. 2), which proscribes

any conspiracy ‘‘to defraud the United States in

any manner or for any purpose.’’ The defraud-

ing of the Government in the exercise of its lawful

functions (cf. Haas v. Henkel, 216 U. 8. 462, 479-

480) was the gist of the offense charged. Con-

sequently, the case falls squarely within the class

of limitations: Ot: Miller. v. United States, 24,Fs 2a

358, 360-361. (C. ©.'A. 2), certiorari: denied, 276

U. 8. 638, in which the Second, Circuit, distin-

guished this Court’s decision in United States v.

Noveck, 271 U. 8. 201, the forerunner of. United

States v. Scharton, supra, on parallel reasoning.

See also H. Rep. 2051 and'S8. Rep. 1544, 77th

Cong., 2d sess. ; Fiswick v. United. States, ree

slip opinion, p. 4 and note 5. .

2. Petitioners’ second contention (Pet. 11-18) is

that the triel:court.arradt imide ipRenetians SOP

jury in that it—

made no distinction whateoerét bien

the evidence that had been produced by the

government in an effort to prove the exist-

ence of a conspiracy and the various ex-

hibits on which the names of the petitioners

appeared [the pre-trial statements] as well

as their testimony on the stand. It only

charged (R. p. 526) ‘‘if, on the other hand

you believe that the evidence adduced by

the government convinces you of the exist-

ence of a conspiracy in the filing of a false

registration known to. contain false and

material matter by these defendan then

your verdict must be guilty.” [Pet.12.] _

While the petition is not entirely clear, we believe

it in effect asserts that the quoted instruction was

erroneous in two respects: first,. it inferentially

permitted the jury to consider the pre-trial state-

of offenses with respect tow, the 9 ; olsen

OP BR! LY OT. PONTO

14

ments of each petitioner against the others; and,

second, it failed to point out that there was a

difference in the probative significance of the

Government’s evidence in chief directed to the

proof of the petitioners’ conspiratorial relations

and evidence having the same effect adduced on

cross-examination of the petitioners. Neither

contention appears to have been made in the court

below (see R. 546, 548, 550, 553-555).

In respect of the first proposition, petitioners

urge that this case is not substantially different

from Fiswick. However, in that case, as this

Court noted (slip opinion, pp. 6-8), the defend-

ants’ pre-trial admissions constituted the only

direct evidence establishing their conspiratorial

relations with the consular officials and among

themselves. In that particular setting, it was

deemed prejudicial for the trial judge to have

given the jury the concededly erroneous instruc-

tion that the pre-trial admissions of each defend-

ant were admissible against all. The instant case

is far different. As petitioners concede (Pet.

11), when the pre-trial statements were finally

admitted in evidence at the close of the Govern-

ment’s case, the trial judge properly admonished

the jury that they were to be considered only

against the particular petitioner to which they

reiated (R. 362). This affirmative cautionary in-

struction was never retracted or altered. And we

submit that petitioners’ assertion that the general

charge on conspiracy inferentially permitted the

15

jury to conclude otherwise is without foundation, —

particularly since the record does not show. that

the court was requested to re-instruct the jury on

this point in the course of his final charge at the

close of all the evidence (see R. 526-529). More-

over, there was direct evidence apart from the —

pre-trial statements that petitioners had gone to

the consulate and there received instructions as to

the answers to be given in their registrations.

Petitioner Muller made such an admission on

eross-examination. See p. 9, supra. That’ testi-

mony was, of course, admissible against all of the

petitioners. See Radin v. United States, 189

Fed. 568, 576 (C. C. A. 2), certiorari denied, 220

U. 8S. 623.

For similar reasons, petitioners’ second propo-

sition—that the trial judge should have instructed

the jury to treat evidence as -to the conspiracy

obtained by cross-examination of petitioners

differently from that offered by the Government

in its ease in chief—is without merit. No such

~ «The rule that pre-trial statements made by one defendant

after the offense has been committed, or after the termination

of the conspiracy, are not admissible against codefendants

applies only where such statements are made out of the pres-

ence of the codefendants who thus have no opportunity to

protest or question the statements. See Brown v. United

States, 150 U. S. 98, 98-99; Seeman v. United States, 90 F.

2d 88, 90 (C. C. A. 5), certiorari denied, 305 U. S. 620; Roma

v. United States, 53 F. 2d 1007, 1009 (C. C. A. 7) ; Dowdy v.

United States, 46 F. 2d 417, 425 (C. C. A. 4); Graham v.

United States, 15 F. 2d 740, 742-743 (C. C. A. 8), certiorari

denied, 274 U. S. 743; Johnson v. United States, 5 F. 2d.471,

475 (C. C. A. 4), certiorari denied, 269 U. S. 574.

16.

instruction was requested, nor would it have been

proper. The testimony elicited from petitioner

Muller on cross-examination was, as we have

noted, admissible against all of the petitioners.

That testimony, as well as other testimony elicited —

from petitioners which tended to reinforce the

Government’s case, had at least the same proba-

tive value as though it had come from other

witnesses. Cf. Freeman v. United States, 96 F.

2d 13, 15 (C. C. A. 5), certiorari denied, 305 U.S.

596; Radin v. United States, 189 Fed. 568, 576

(C. C. A. 2), certiorari denied, 220 U. S. 623. If

anything, Muller’s testimony, being that of a

defense witness, was binding upon the defense

and of greater probative significance than

similar testimony by a disinterested witness. Cf.

Cartello v. United States, 93 F. 2d 412, 415

(C. C. A. 8).

CONCLUSION

For the foregoing reasons, we respectfully sub-

mit that the petition for a writ of certiorari

should be me

GrorGe T. WASHINGTON,

Acting Solicitor General.

THERON L. CaUDLE,

Assistant Attorney General.

Rosert S. Erpau1,

/ SHELDON E, BernstErn,

Attorneys.

Aprit 1947.

U.S. GOVERNMENT PRINTING OFFICE: 1947