Chandler v. United States

Citation171 F.2d 921
Decision Date28 February 1949
Docket NumberNo. 4296.,4296.
PartiesCHANDLER v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

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Edward C. Park, of Boston, Mass. (Claude B. Cross and Philip F. Grogan, both of Boston, Mass., on the brief), for appellant.

Frederick Bernays Wiener, Sp. Asst. to Atty. Gen. (William T. McCarthy, U. S. Atty., of Boston, Mass., T. Vincent Quinn, Asst. Atty. Gen., Tom De Wolfe, Sp. Asst. to Atty. Gen., Gerald J. McCarthy, Asst. U. S. Atty., of Boston, Mass., and Bartholomew B. Coyne, Atty., Department of Justice, of Washington, D. C., on the brief), for appellee.

Before MAGRUDER, Chief Judge, and GOODRICH (by special assignment) and WOODBURY, Circuit Judges.

Writ of Certiorari Denied February 28, 1949. See 69 S.Ct. 640.

MAGRUDER, Chief Judge.

Douglas Chandler is under sentence of life imprisonment and a fine of $10,000, upon conviction by a jury on an indictment charging the crime of treason against the United States. The charge was predicated upon defendant's radio broadcasting activities within the German Reich during World War II as an employee of the German Radio Broadcasting Company, an agency of the German Government under the jurisdiction of the Ministry of Public Enlightenment and Propaganda. The points raised on this appeal cover a wide range. We have been much aided by the industry and thoroughness of Government counsel and of court-appointed counsel for the defendant in their researches on the case, and by the distinguished ability with which they have marshaled their respective arguments. The case was tried with great care and patience by Judge Ford, and the record contains memoranda by him covering his more important rulings. We sustain the conviction.

FACTUAL SUMMARY.

The facts, as the jury were warranted in finding them, may be summarized as follows: Chandler was born in Chicago, Illinois, in 1889, and has always been a citizen of the United States. He married in this country and had two daughters born here. He tried his hand for a time at journalism and various other enterprises. In September, 1931, he and his family moved to Europe, where he remained until brought back to the United States in 1946. Prior to 1941 he lived from time to time in France, Austria, Germany, Yugoslavia, and Italy, and traveled extensively. From 1936 to the outbreak of war he executed various commissions for the preparation of illustrated articles for an American magazine.

Over the years Chandler had developed an anti-Jewish outlook, and his fierce emotions on that theme were accentuated by certain personal setbacks which he attributed to malignant Jewish interference. He came to believe, or to profess to believe, in the existence of a sinister world-wide Jewish conspiracy. Naturally he found the anti-Jewish climate of Nazi Germany congenial. While in Germany before the war his interest was cultivated by one Hoffman, an attache in the German Press Department, serving as contact man for foreign journalists. He was favorably impressed with what he saw in Germany and came to regard the Nazi regime as the bulwark of Western civilization against what he thought to be the Jewish-Bolshevist menace.

In 1940 he left Yugoslavia and came to Florence. There he conceived the idea of broadcasting his views to the United States, by way of warning against involvement in the European war. The American Consul in Florence, who at this time was urging Americans to return to the United States, did not authorize Chandler to travel to Germany on his American passport. However, Chandler was able to get to Berlin in February, 1941, on a German Fremdenpass (alien identity card) through the intervention of the German Consul, and his family followed in another month. He volunteered his services to the Propoganda Ministry, and arrangements were made for him to prepare commentaries and record them for broadcast to the United States, on a salaried basis. His broadcasts commenced in April, 1941. He adopted in his first broadcast, and retained throughout, the nom de plume "Paul Revere"1 (though he revealed his true identity in subsequent broadcasts). The introductory theme song to his broadcasts was "Yankee Doodle" played on a flute accompanied by the sound of galloping horses' hoofs. After six months of this work he took a leave of absence.

Then came the Japanese attack upon Pearl Harbor. Though he recognized that "Germany through its pact with Japan was technically forced to issue its declaration of war", he regarded this change in the situation between Germany and the United States as only a technicality. Other Americans were repatriated from Berlin, but Chandler chose to stay.

In January, or February, of 1942, he made arrangements for the resumption of his activity as a broadcaster. He executed a contract with the "Reichs-Radio-Corp.-German Short Wave Station", which provided in Article I that "Mr. Douglas Chandler will be employed as a commentator in the U. S. A. newsroom. His employment is necessary by the war conditions; that means, on account of the drafting of permanent employees and the additional war tasks of the radio, respectively." Italics added. The stipulated compensation was 1000 Reichsmarks per month. Though the defendant was understood to be responsible only to the German Short Wave Agency, for bookkeeping reasons he at the same time entered into two other contracts, one with the "Foreign-Language-Service-Press-Corp.", at a salary of 750 Reichmarks per month, and another with the "Anti-Komintern" and the "Anti-Semitic Action" under which he was to receive 750 Reichmarks a month, "for the regular collaboration in the foreign-language propaganda of the Anti-Komintern, and the Anti-Semitic Action, respectively." This aggregate compensation of 2500 marks per month made Chandler the highest paid commentator in the U. S. A. Zone of the Short Wave Station of the German Radio Broadcasting Company. His superior, the Chief of the U. S. A. Zone, received less than half this amount.

Defendant broadcast under these contracts two or three times a week uninterruptedly from February, 1942, to the end of July of that year. He then stopped for about two months following the death of his first wife, but he resumed on the same basis in October. After one of the routine conferences of the commentators, some time in February, 1943, he had a conversation with Wagner, the News Editor for the U. S. A. Zone. Wagner expressed his lack of interest in the anti-Semitic theme and his disbelief in the authenticity of the so-called "Protocols of the Elders of Zion". Chandler reported Wagner to the Gestapo as one whose loyalty to the Reich was suspect. Later, upon being taxed with this action by Wagner, Chandler said to Wagner: "You have been one of my best friends", but "the interests of the whole, of the Reich, are higher than my personal feelings." Chandler was suspended from the air in May, 1943, but at the solicitation of the Superintendent of the Short Wave Station he resumed his work in September, 1943. For some time after that he made his recordings in Vienna and the recordings were brought to the German Short Wave transmitter outside Berlin and there re-recorded on magnetic tape for broadcasting. There was a two-month interruption in the spring of 1944, due to Chandler's illness. In October, 1944, he moved to Durach, Bavaria, after which he made his recordings in Munich, and so continued until January or February of 1945, when he stopped for good. Thereafter he expressed a willingness to resume but he refused to come to Berlin to make his recordings as the Superintendent of the Short Wave Station desired him to do.

The objective of the enemy in the operation of its short-wave broadcasts clearly appears in the record, and is indeed a matter of common knowledge. Winkelnkemper, the Director General of the German-Reich-Radio-Corp., testified as follows:

"The German foreign broadcasts were made extensively use of as a means of psychological warfare, as it was done in every country, to support the German war effort by creating disunity in other peoples by undermining the morale, by splitting up the people in different parties, different social and radical parties, political parties, so that the land who is doing this psychological warfare may aim their war objects. And so it was done in Germany, too, and we made an extensive use of these propaganda as a means of psychological warfare."

The head of the Propaganda Ministry, Dr. Goebbels, under the direction of Hitler, laid down the principal themes to be harped upon in the German radio propaganda in furtherance of this psychological warfare. They were Bolshevism as No. 1 enemy to Christianity and private property; anti-Semitism — the support of Bolshevism by "international Jewry", with stress, so far as the United States was concerned, upon the supposed dominance of the Jews in government and finance, and in radio, films, and other agencies for influencing public opinion; the great achievements in the Reich in the field of social legislation as contrasted with the backwardness of the Anglo-Saxon countries; the invincible military and moral power of the Reich; and England's economic and political decline as a world power.

Goebbels held daily conferences with his top subordinates, at which he gave his instructions as to how to handle the news and as to what points he wanted currently stressed along the line of the basic propaganda themes just mentioned. These instructions were passed on down through a series of staff conferences. Chandler with other English-speaking broadcasters regularly attended the daily conferences held by the chief of the U. S. A. Zone, at which the standard propaganda directives as well as the daily directives were relayed and discussed, and instructions were given to the various commentators with reference to particular subjects. The commentators were...

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