United States v. Fiswick, 8864.

• Decision Date: 10 December 1945
• Docket Number: No. 8864.,8864.
• Citation: 153 F.2d 176
• Parties: UNITED STATES v. FISWICK et al.
• Court: U.S. Court of Appeals — Third Circuit

153 F.2d 176 (1945)

UNITED STATES v. FISWICK et al.

No. 8864.

Circuit Court of Appeals, Third Circuit.

Argued July 26, 1945.

Decided December 10, 1945.

Rehearing Denied January 26, 1946.

Writ of Certiorari Granted April 22, 1946.

Frederic M. P. Pearse, of Newark, N. J., (Frank W. Jackson, of New York City, and William V. Azzoli, Fritz Gustav Rudolph, of Newark, N. J., on the brief), for appellants.

Charles A. Stanziale, of Newark, N. J., and Leo Roth, of Washington, D. C., (Thorn Lord, U. S. Atty., of Newark, N. J., on the brief), for appellee.

Before BIGGS, WALLER, and McLAUGHLIN, Circuit Judges.

Writ of Certiorari Granted April 22, 1946. See 66 S.Ct. 962.

McLAUGHLIN, Circuit Judge.

Thirty-one persons of German nativity were indicted in the District Court of the United States for the District of New Jersey on September 13, 1944. Six entered pleas of guilty. There was a dismissal as to one, a severance as to fourteen, a trial as to ten, an acquittal as to three, a mistrial as to four and a conviction as to the three who have appealed.

The indictment alleged that during the summer of 1941, and for five years immediately preceding, Friedhelm Draeger was the German Consul in the City of New York and Kreisleiter, or leader, of the overseas portion of the National Sozialistische Deutsche Arbeiterpartei, hereinafter referred to as the Nazi Party, in the United States; that during the same period Hans Vogel was secretary to Draeger; and that the said Consul and secretary were engaged in matters concerning the operation of the Nazi Party and its members and activities in the United States; that each defendant was a German National and a member of and affiliated with the Nazi Party; that the Alien Registration Act of 1940, Title 8, U.S.C.A. § 452 et seq., and the regulations issued thereunder, required each of the defendants to register and to furnish information, among other things, as to the existence, kind and extent of his membership in the Nazi Party to the end that the United States, in the exercise of its governmental functions, might have accurate and complete information during the national emergency; that the defendants conspired illegally with Draeger and Vogel and with each other and with others to the grand jurors unknown, to defraud the Government of the United States by denying, falsifying, concealing, misrepresenting, etc., membership in such Nazi Party so as to defraud, hamper, impede, impair, frustrate and obstruct the United States in obtaining accurate information as to their membership and activities in, their affiliations with, and the activities of the Nazi Party, its clubs, organizations, functions and activities in the United States; that Friedhelm Draeger, Hans Vogel, the German Ambassador, members of his staff, and others to the grand jurors unknown, would advise, counsel, instruct, command and direct the defendants and others similarly situated to deny, deceive and misguide the United States in reference to their membership or affiliation in said Nazi Party in filling out the form required of each of them under the regulations pursuant to the Alien Registration Act of 1940; that it was part of the conspiracy that these defendants and other members and affiliates of the said Nazi Party within the United States, would continue after the Fall and early Winter of 1940, and from day to day thereafter to the date of the bringing in of the indictment, to deny, falsify, deceive and misrepresent to the United States their agencies, departments and bureaus, the material facts relating to the existing kind and extent of their membership and activities in, affiliation with, and the existence and activities and functions of the said Nazi Party within the United States, to the end that the denials, concealments, falsifications, misrepresentations, suppressions and equivocations made in connection with the above referred to Alien Registration Act of 1940 would continue thereafter to the detriment and failure of the United States and their agencies, departments and bureaus, to ascertain fully, fairly and accurately during a National emergency, information relating to the membership, policy and activities of these defendants and others in the Nazi Party in the United States, and for the furtherance of the political activities, public relations, public policy of the Government of the Third German Reich, all of which information in said form under said Act of Congress was vital to the internal security of the United States; that the defendants would appear before proper alien registration officers and authorities for the purpose of registration, and in such registration would falsely and fraudulently omit to disclose and truly state their membership in, and connection and affiliation with, the clubs, societies, organizations and activities of, the Nazi Party within the United States; and numerous overt acts were set forth and alleged to have been committed in pursuance of, and in order to effect the objects of, said conspiracy. Defendants were not indicated for the substantive offense of false registration as was done in the case of United States v. Heine, 2 Cir., 149 F.2d 485.

There was testimony for the Government by Miss Lilly Illian, an employee of the German Consulate from March, 1939, until May, 1941, that Dr. Draeger, the Consul, was Kreisleiter, or leader, of the Nazi Party in New York; that Hans Vogel was secretary to the Consul; and that a part of her duties was taking dues of the members of the Nazi Party and taking care of correspondence pertaining to it; that Vogel dictated to her generally and that occasionally so did Dr. Draeger; that applications for membership in the Party were taken at the German Consulate and thereafter transmitted to Germany with a report by the Consul; that records were kept at the Consulate pertaining to members of the Party and application for membership therein; that the total amount of initiation fees, etc., was $15.50; that there were also dues of $1.00 per month; that the final acceptance of an application for membership had to come from Germany, but applicants for membership received a card and members received a book in which stamps could be placed showing payment of dues; that meetings and activities were held either in the Consulate or under its auspices; that a list had been made up from the file cards which were once kept in the Consulate but later destroyed; that Vogel advised her the file cards had been burned in the early part of 1940; that witness could not identify either one of the three convicted appellants but three names identical with those of the three defendants were on the list of Party members; that after the registration of aliens in the United States was required, the Consulate, either through Dr. Draeger or Hans Vogel or herself, gave instructions to the members as to the wording that should be used in filling out the registration statement; that the members were first instructed by Dr. Draeger to deny membership and not to put the fact that they were members of the National Socialist Party in the registration questionnaire; that they were later advised to send an amendment of their answers to the State Department wherein they should state that they were non-resident members of the Nazi Party; that some of the defendants were instructed to state in their questionnaires that they were members of the Reichsdeutsche Vereinigung. All three of the appealing defendants, acting on such advice, in answering their questionnaires denied that they ever had, within five years, belonged to or been affiliated with, or an active member of, any organization devoted to political activities, public relations, or public policies of a foreign government, with the exception of defendant Jacob L. Mayer, who, on such advice, stated that he was a member of the Reichsdeutsche Vereinigung. (He later admitted that he had never heard of that organization before and that he had been advised by the Consul to say that it was a welfare organization.)

There was testimony by Gustave Gauerke, an employee of the Consulate, which corroborated a part of the testimony of Miss Illian. Emil Wilhelm Borchers, a defendant, also testified that he was a member of the Nazi Party and that Vogel advised him, and three others who were with him at the Consulate, that when a member of the Nazi Party registered he should not state that the Party was organized, nor that he was a member thereof, and that he should turn in his Nazi membership book or card to the Consulate; that he did this; that he had attended functions at which Dr. Draeger and Hans Vogel were present, at which Dr. Draeger began the exercises with the "Heil Hitler" greeting and the Hitler salute. Witness Albert J. Komecki testified as to certain activities of the German-American Festival Committee, which were under the supervision of the Consulate.

The Government next introduced as a witness Mr. Bell of the F. B. I., who testified, over objections, as to conversations he had had with the defendant Mayer on the 22nd and 23rd of November, 1943, wherein certain admissions were made by that defendant. In the first interview Mayer denied, according to the witness, that he was a member of the Nazi Party, but on the succeeding day Mayer admitted that he was a member and that he had been advised by the Consul to deny membership when filling out the registration statement and to state that he was a member of the Reichsdeutsche Vereinigung. A statement by Mayer to the same effect as his oral testimony was received into evidence.

Other F. B. I. agents later testified as to conversations with and written statements by the defendants, Fiswick and Rudolph, which latter also went into evidence. Fiswick on April 29, 1944, in talking with the particular F. B. I. representative, stated to that person that he had told an Enemy Alien Hearing Board at Newark, New Jersey on January 7, 1944, that he was not a member of, or a...