Keegan v. United States Kunze v. Same

• Decision Date: 11 June 1945
• Docket Number: Nos. 39,44,s. 39
• Citation: 65 S.Ct. 1203,89 L.Ed. 1745,325 U.S. 478
• Parties: KEEGAN v. UNITED STATES. KUNZE et al. v. SAME
• Court: U.S. Supreme Court

325 U.S. 478

65 S.Ct. 1203

89 L.Ed. 1745

KEEGAN

v UNITED STATES.

KUNZE et al.

v. SAME.

Nos. 39, 44.

Argued and Submitted Nov. 9, 10, 1944.

Decided June 11, 1945.

Messrs. John F. X. Finn and Harold W. Hastings, both of New York City, for petitioners on the consolidate brief in No. 44.

Mr. William H. Timbers, of New York City, for petitioners on the consolidated brief in No. 44, pro hac vice, by special leave of Court.

Mr. Wilbur V. Keegan, of New York City, pro se.

Mr. James M. McInerney, of New York City, for the United States.

Messrs. William C. Kunz, John C. Fitting, Carl Berg, Martin Ernest Christoph, William Ottersbach, Max Rapp, Louis Schatz, pro sese.

Mr. Justice ROBERTS announced the judgment of the Court and delivered the following opinion, in which Mr. Justice FRANKFURTER and Mr. Justice MURPHY, concur.

Two indictments, one returned July 7, 1942, the other returned August 26, 1942, charged a conspiracy beginning January 1, 1940, and ending at the dates the indictments were found. The evident purpose of the second was to include several additional defendants as alleged conspirators. We shall treat them as one.

The conspiracy charged was to counsel divers persons to evade, resist, and refuse service in the land and naval forces of the United States in violation of § 11 of the Selective Training and Service Act of 1940, 50 U.S.C.Appendix, § 311, 50 U.S.C.A.Appendix, § 311.

The Act defines the crime as conspiracy 'knowingly' to counsel 'another to evade registration or service in the land or naval forces * * *.'

The proofs would not sustain, and the indictment does not contain, any charge of conspiracy to counsel evasion of registration.

In certain paragraphs of the indictment it is charged

(1) That it was part of the conspiracy that each was and would remain a member of the German-American Bund; that each was a responsible leader of the Bund.

(2) That some prepared German articles called Bund Commands and others distributed and caused them to be distributed to units of the Bund.

(3) That the commands were read at meetings.

(4) That Command 37 counselled, directed, and urged those to whom its contents were communicated to evade, resist, and refuse service in the land and naval forces.

(5) That articles in the newspaper 'The Free American', published by the Bund, which were distributed, urged German-American citizens and others to resist, refuse and evade such service.

(6) That the defendants otherwise urged German-American citizens and others to resist the provisions of the Act of 1940 and to evade service.

The 25 defendants were tried together. One was acquitted. The Government called 68 witnesses and the trial lasted from September 17th to October 19th, 1942. The printed transcript of testimony furnished this court covers just short of 800 pages, and the exhibits offered in evidence run to over 350, some of them containing over 50 pages. The defendants were represented at the trial by appointed counsel as they were not able to employ counsel.

The Government correctly states that the evidence offered by the prosecutor falls into two classes: (1) That touching the German-American Bund and its purposes, which was offered to indicate the motives and purposes for the defendants' statements and actions; and (2) evidence touching specific actions, conduct, and statements tending to show the existence of a conspiracy and the steps taken pursuant to it. The evidence in the first category is overwhelmingly greater in volume than that in the second. Indeed a question arises whether it was not an abuse of discretion to permit the Government to go, at such inordinate length, into evidence concerning the Bund and its predecessor, the Friends of New Germany, during a period of seven years prior to the inception of the alleged co spiracy; and concerning Bund uniforms and paraphernalia, and pictures and literature in the possession of various defendants.

What we shall characterize as the background evidence may be summarized. The proofs disclose that there existed from some time in the early 1930's a society known as the Friends of New Germany. About 1935 the name was changed to the German-American Bund. After Fritz Kuhn, the leader of the organization, had been arrested and convicted of certain offenses irrelevant to the present case, Kunze, one of the petitioners, became president. At the convention of 1940 a new constitution was adopted; and at some time within the dates specified as covering the conspiracy a synopsis of the structure of the Bund was promulgated. Minutes of the convention of 1940 also were in evidence.

From these documents a conception of the nature and, to some extent, the purposes of the association, may be obtained. It was organized on the fuehrer or leadership principle. The president was the leader and was amenable only to the association in convention assembled. His orders were law unless and until modified or abrogated by a convention. Members were expected to obey his orders. Disobedience involved discipline, or expulsion from the organization. The entire hierarchy of constituent organizations and of officials, national and local, was created by him and all officials high and low held office subject to his pleasure. The constituent organizations consisted of local units, each of which had its leader, and of collateral organizations within a unit, such as an OD division, whose function was to drill in uniform, to police meetings of members, and perform other similar duties; a youth organization, etc.

The professed purpose of the Bund was to keep alive the German spirit among persons of German blood in the United States. Speeches and literature justify the inference that the Bund endorsed the Nazi movement in Germany and, if it did not actually advocate some such form of government in this country, at least essayed to create public opinion favorable to the Hitler regime and to the German National Socialist State. The Bund was also anti-British and opposed our entering the war on the side of the British; its aim was to keep us neutral and friendly to the new Germany. There is much in literature put out or approved by the Bund concerning 'discrimination' against American citizens of German blood and the fight which must be waged against it. There is also much to the effect that the Bund is pursuing lawful aims within the constitutional rights of its members, and that its activities need not be hidden from governmental agencies. There is basis for suspicion of subversive conduct; there is matter offensive to one's sense of loyalty to our Government's policies. There may well be doubt of the organization's hearty support of those policies, but if the Bund and its membership were, prior or subsequent to January 1, 1940, engaged in illegal activities, other than those claimed to prove the charge laid in the indictment, the record is bare of evidence of any such.

The Draft Act was introduced in Congress in June, 1940, was amended September 7 by adding § 8(i) and as so amended became law September 16, 1940. Prior to September 7 there seems to have been no suggestion by the Bund or its officers that, if passed, the law would not be binding on all and ought not to be obeyed. The oral evidence respecting this period is almost entirely that of Luedtke, former secretary of the Bund, who was a defendant and turned state's evidence.

He states that the Bund and its members always favored a compulsory selective service act. But, he said, they were opposed to the principle of using a draft army to fight against Germany. The Bund feared that the President might use a conscript army by sending it abroad to fight with England, against Germany. The Bund desired this country to maintain neutrality by not having our soldiers go to foreign shores. These views w re then shared by many loyal citizens, and some of them were enacted into law by Congress. See § 3(e) of the Selective Training and Service Act.

There is no documentary evidence to contradict this testimony. Nothing appears in the minutes of the national convention held August 31-September 2, 1940 or in the testimony as to its proceedings, with reference to selective service. It is true Luedtke says there was some talk about it, and the stenographer was instructed to omit this from the record; but he does not say that such talk was in any way inconsistent with what he had testified as to the Bund's attitude.

On September 7, while the bill was pending in the House, an amendment was offered, was adopted as offered, and remained in the bill when signed by the President. It is

'8(i) It is the expressed policy of the Congress that whenever a vacancy is caused in the employment rolls of any business or industry by reason of induction into the service of the United States of an employee pursuant to the provisions of this Act such vacancy shall not be filled by any person who is a member of the Communist Party or the German-American Bund' 50 U.S.C.App. § 308(i), 50 U.S.C.A. Appendix, § 308(i).

Admittedly Kunze, probably with the approval of other defendants, protested by letter and telegram to members of Congress against the passage of the bill thus amended and to the President against signing it. The Act became law September 16th. Shortly thereafter Kunze called a meeting of unit leaders, at which many of the defendants were present, including Keegan, the counsel of the Bund. Keegan addressed the meeting and said that there was a constitutional question involved, that members of the Bund had been discriminated against (it is plain this statement applies to § 8(i)); and they had a right to go to court to establish their rights. Kunze recited his efforts to prevent passage of the bill, said an article was to appear in 'Free American' entitled 'No rights, no duties' and that the Bund was going to fight the discrimination. He explained that the article would make clear that if American citizens were deprived of their right to work they...