# Opposition Brief — Macke v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1055%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1947 - **Citation:** 331 U.S. 810 ## Text Bkeubont : CITATIONS Brady v. United States, 24 F. 2d 399 Brown v. United States, 150 U. 8. 93 7, 9, ” 13,14 ll 16 ll 15 12 10 ll 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