Gillars v. United States

• Citation: 182 F.2d 962
• Decision Date: 19 May 1950
• Docket Number: No. 10187.,10187.
• Parties: GILLARS v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

182 F.2d 962 (1950)

GILLARS v. UNITED STATES.

No. 10187.

United States Court of Appeals District of Columbia Circuit.

Argued January 9, 1950.

Decided May 19, 1950.

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Mr. James J. Laughlin, Washington, D. C., for appellant. Mr. William E. Owen, Washington, D. C., also entered an appearance for appellant.

Mr. J. Frank Cunningham, attorney, Department of Justice, Washington, D. C., with whom Messrs. George Morris Fay, United States Attorney, Washington, D. C., and John M. Kelly, Jr., Special Assistant to the Attorney General, were on the brief, for appellee.

Before CLARK, WILBUR K. MILLER and FAHY, Circuit Judges.

FAHY, Circuit Judge.

Appellant was convicted of treason in a jury trial in the United States District Court for the District of Columbia. Treason alone of crimes is defined in the Constitution, as follows:

"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. * * *" U.S. Const. Art. III, § 3.¹

The First Congress, in 1790, provided by statute,

"* * * That if any person or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States or elsewhere, and shall be thereof convicted, on confession in open court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, * * *." 1 Stat. 112 (1790).

The indictment alleges that appellant was born in Maine, was a citizen of and owed allegiance to the United States, that within the German Reich, after December 11, 1941, to and including May 8, 1945, in violation of her duty of allegiance she knowingly and intentionally adhered to the enemies of the United States, to wit, the Government of the German Reich, its agents, instrumentalities, representatives and subjects with which the United States was at war, and gave to said enemies aid and comfort within the United States and elsewhere, by participating in the psychological warfare of the German Government against the United States. This participation is alleged to have consisted of radio broadcasts and the making of phonographic recordings with the intent that they would be used in broadcasts to the United States and to American Expeditionary Forces in French North Africa, Italy, France and England. The indictment charges the commission of ten overt acts, each of which is described, and, finally, that following commission of the offense the District of Columbia was the first Federal Judicial District into which appellant was brought.

Eight of the ten alleged overt acts were submitted to the jury. A verdict of guilty was returned, based on the commission of overt act No. 10, which is set forth in the indictment as follows:

"10. That on a day between January 1, 1944 and June 6, 1944, the exact date being to the Grand Jurors unknown, said defendant, at Berlin, Germany, did speak into a microphone in a recording studio of the German Radio Broadcasting Company, and thereby did participate in a phonographic recording and cause to be phonographically recorded a radio drama entitled "Vision of Invasion," said defendant then and there well knowing that said recorded radio drama was to be subsequently broadcast by the German Radio Broadcasting Company to the United States and to its citizens and soldiers at home and abroad as an element of German propaganda and an instrument of psychological warfare."

We now discuss the several matters raised by appellant as grounds for reversal.

I The Sufficiency and Weight of the Evidence

Appellant contends the verdict was contrary to the evidence and to the weight of the evidence. The argument runs as follows: The indictment charged that at various times appellant spoke into a microphone and her voice was later sent over the radio; that two of the ten overt acts of this character were withdrawn, leaving eight for jury consideration; that of these she was acquitted of seven; that she admitted speaking into the microphone and sending her views over the radio but denied any intention to betray; and that therefore the jury, having in mind this admission, concluded there was no intent to betray in the case of seven overt acts. From this it is argued that the finding of treasonable intention as to one overt act could not have been made consistently with acquittal of these other overt acts.

If, however, there is sufficient evidence to support the verdict of guilty based on the commission of the tenth overt act alone we may not reverse even were we of opinion that the evidence was equally strong to support a conviction based on other alleged overt acts as to which appellant was acquitted. A jury verdict need not be consistent.

"Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. Latham v. The Queen, 5 Best & Smith 635, 642, 643; Selvester v. United States, 170 U.S. 262, 18 S.Ct. 580, 42 L.Ed. 1029. * * *" Dunn v. United States, 1931, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356, 80 A.L.R. 161.

The evidence was sufficient to support the verdict on the tenth overt act There was before the jury evidence from which they could find the following: Appellant was a native born citizen of the United States and therefore owed allegiance to the United States;² in 1940 she was thirty-nine years of age; she had studied dramatics and had been employed in the United States as an actress; she left the United States in 1933, and took up residence in Berlin in 1934; on May 6, 1940, she was employed there by the German Broadcasting Company as announcer on the European Services; within a few months after this employment she was made mistress of ceremonies of the European Services; in 1941 she took part also in an overseas service program broadcast to the United States; the United States declared war on Germany December 11, 1941; the German Radio Broadcasting Company was a tax-supported agency of the German Government; it consisted of two main branches, the Home Branch and the Foreign Branch; the Foreign Branch in turn consisted of the European Service and the Overseas Service; the purpose of the broadcasts by the Foreign Branch was to disseminate to the Armed Forces and civilians of the United States and her allies propaganda along lines laid down by the German Propaganda Ministry and the Foreign Office to aid Germany and to weaken the war effort of the nations at war with her; daily conferences were held among Goebbels, head of the Ministry of Public Enlightenment and Propaganda of the German Government, and representatives of the Foreign Office to formulate propaganda lines; these were followed by conferences of the Director of the Foreign Branch with the officials of the Overseas Service about the propaganda lines to be pursued; the employees of the Overseas Service followed the propaganda instructions then announced; the lines of propaganda for broadcast to the citizens and Armed Forces of the United States were that Germany was superior in various ways; she was fighting against Communistic domination of the world; the United States was improperly influenced to enter and remain in the war by Jewish interests; German fighting forces were superior; Germany had secret military weapons such as the V-1 and V-2 rockets; an attempted invasion of Germany would be disastrous; the United States should not oppose Germany in its fight to save Christianity and world salvation from the Communists; the President would sell his country to the Russians and was improperly influenced by Jewish advisers; the people of the United States should not follow the policy of the war effort of their Government; the war was a British war.

The jury on the evidence could further find that the broadcasts consisted often of the transmission of programs previously recorded on phonographic discs; that the appellant participated in the making of such recordings; that she was paid by the German Radio Broadcasting Company a stipulated amount for each performance in which she participated; that she became the highest paid performer on the Overseas Service with a record of a large number of live broadcasts and recorded programs with a salary more than double that of her superior.

Further, the evidence enumerates the large number of programs which appellant recorded, evidencing active participation in the propaganda activities; that this included, in 1943, participation in the recordings of messages of prisoners in camps and prison hospitals transmitted to the United States beginning in December 1943; that in making these recordings appellant was accompanied to the camps and hospitals by radio and sound technicians from the German Radio Broadcasting Company; that a high official of the company and of the Foreign Office made arrangements for interviews at camps and hospitals but the actual interviews were conducted by appellant herself; that she passed out cigarettes to the soldiers and told them she was recording their messages to be sent home as part of the service of the International Red Cross; that the recordings were edited and as edited were re-recorded, and the final recordings were examined and approved for transmission to the United States; that particular information was recorded to attract large audiences in the United States; that appellant was in Paris in August 1944 making recordings of messages of American prisoners of war; that she fled the fifteenth of the month as American troops closed in on the city, which was captured in the following days, and when the fall of Berlin was imminent she went into hiding under an assumed name to escape capture by United States forces.

As to the overt act No. 10, on the basis of which she was convicted, three...