Thomas v. United States, 9773.

• Decision Date: 17 September 1945
• Docket Number: No. 9773.,9773.
• Citation: 151 F.2d 183
• Parties: THOMAS v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

151 F.2d 183 (1945)

THOMAS v. UNITED STATES.

No. 9773.

Circuit Court of Appeals, Sixth Circuit.

September 17, 1945.

Walter M. Nelson, of Detroit, Mich., for appellant.

Louis M. Hopping, of Detroit, Mich. (John C. Lehr and Louis M. Hopping, both of Detroit, Mich., and Victor C. Woerheide, Donald B. Anderson, and Edward S. Lazowska, all of Washington, D. C., on the brief), for appellee.

Before HICKS, ALLEN, and HAMILTON, Circuit Judges.

HICKS, Circuit Judge.

Appellant, and Theresa Behrens, Grace Buchanan-Dineen, Bertrand Stuart Hoffman, Carl John Wilhelm Leonhardt, Emma Elise Leonhardt, Walter Joseph Abt and Grafin Marianna Von Moltke, were indicted for a conspiracy to engage in the violation of § 32, Title 50, U. S. C. A.¹

The indictment was based upon § 34 of Title 50,² and contained but one count. Upon arraignment appellant stood mute and a plea of "not guilty" was entered by the court. Six of the other defendants plead guilty and one, Hoffman, was discharged in the course of the trial.

After an extended trial the jury found appellant "guilty of the charges in the indictment" and the court imposed judgment.

In brief outline, there was testimony that in 1941, 1942 and 1943, appellant was a physician with offices in the Eaton Tower in Detroit. He was born in Fresno, Ohio, in 1898 and married there in 1926. He attended a university in Indiana and received his A. B. degree from Baldwin-Wallace School in 1921. He took post-graduate work at the University of Michigan and entered the Michigan Medical School from which he graduated in 1926. He did interne work at Grace Hospital, Detroit, Paterson General Hospital, Paterson, N. J., and Lenox Hill Hospital in New York City. He was exchange surgeon at St. George Hospital in Hamburg, Germany in 1928-9 and thereafter attended classes and visited other hospitals in Germany. Following completion of work in Berlin, he and his wife traveled through European countries; and returning to the United States he began medical practice in 1929.

In a statement made on August 27, 1943, to agents of the FBI, appellant said that he had known Theresa Behrens, a co-defendant, for eight or ten years. She was a secretary of the YWCA at the International Center in Detroit, and worked with, and rendered assistance to, persons of foreign extraction. Appellant met her when she referred a patient to an institution with which he was associated; and after that she herself became his patient.

Theresa Behrens was born in Hungary and came to the United States in 1913 but lived in Hungary in 1939, where she had known one Sari DeHajek and her husband, Gyula Rozinek. She met Grace Buchanan-Dineen, another co-defendant, through DeHajek and Rozinek.

Grace Dineen testified: that she was born in Canada, had traveled in Europe and had spent some time in Hungary, where she became acquainted with DeHajek and Rozinek and was asked by them in May of 1941 to become an espionage agent in America for the German government; that she made a trip to Berlin, where she received instructions in secret writing and other instructions as to traveling arrangements for her entry into the United States. On October 26, 1941, she took the Atlantic Clipper from Lisbon and arrived in New York on October 27th. Four days later she arrived in Detroit and telephoned Theresa Behrens, whom she had never met but whose name had been given her by DeHajek, that she had news from DeHajek. They got together later the same day at the YWCA in Detroit.

Dineen testified that she told Behrens that she was a German espionage agent and that the latter agreed to help her. That afternoon Behrens took Dineen to appellant's office ostensibly for treatment of an infection. Although denied by both Behrens and appellant, Dineen testified that she was introduced to appellant as a secret agent of the German government and that he said he would be glad to help and inquired how he might help; to which she answered, that the German government wanted information about troop movements, defense plants, new drugs, figures on defense work, etc.

This meeting with Behrens and Dineen was the first of seven overt acts charged against appellant as furthering the conspiracy. The other six charged appellant with meetings with Dineen alone, at two of which it was averred that he supplied her with chemicals for making secret ink. It was also established, both by his testimony and that of Dineen, that there occurred a long series of meetings and conferences, thirty or more in number, between the two, which were not specifically charged in the indictment. At least three of these took place in Dineen's apartment. Many of these meetings, including five which were named as overt acts, occurred after March 5, 1942. On that date Dineen was arrested by the FBI and thereafter engaged in counter-espionage work for that agency.

Appellant's defense was that his relationship with Dineen was professional only; and he denied her testimony that he had given her information about American factories and production, about bomber transport, troop movements, etc. He testified that the tablets and alcohol (useful for secret writing) were prescribed for specific ailments of Dineen.

Note books and records taken from appellant's office by agents of the FBI after his arrest disclosed an interest in things German and in German-American societies prior to the entry of this country into the war. He admitted that he knew Theodore Donay, an importer in Detroit who was named as a co-conspirator in the indictment but was not indicted therein. He testified that he had, for several years, purchased various European specialties from Donay, that he knew in a professional capacity the Leonhardts who were co-defendants, and that he had seen and met Grafin Marianna Moltke, a co-defendant, prior to his arrest, but he denied that he ever conversed with her. He denied that he knew either Joseph Abt or Bertrand Hoffman, the other alleged co-conspirators, until after his arrest.

We have not set out the evidence exhaustively. In the aggregate we regard it as sufficient to take the case to the jury over appellant's motion for peremptory instructions. For present purposes this brief outline is sufficient to supply a background for understanding the challenged portions of the court's charge. There was no count in the indictment charging a violation of § 32, Title 50, U.S.C.A. Nevertheless, the court began the second paragraph of the charge in these words:

"This Defendant, one of the Defendants named in this indictment, is upon trial for a violation of the so-called Espionage Act, Act 32, Title 50 and the word `espionage' means `to espionage is to spy, the practice of spying on others, or the employment of spies, systematic, accurate observation of the words and conduct of others.' This statute is aimed to be punishment for espionage. * * *" (Italics ours.)

Then followed this paragraph:

"This indictment charges, based upon that section of the Criminal Code, that this Defendant, Thomas, together, of course, as you have heard in the progress of the trial, Theresa Behrens, Grace Buchanan-Dineen, Bertrand Stuart Hoffman, Karl John Wilhelm Leonhardt, Emma Elise Leonhardt, Walter Joseph Abt, Frederick William Thomas and Grafin Marianna von Moltke, are the defendants charged, and they are charged with a violation of this Act of Congress." (Italics ours.)

Then after a review of the evidence and after instructions as to the burden of proof and upon the subject of reasonable doubt, the court reiterated that appellant was charged with a violation of the Espionage Act and specifically excluded the charge of conspiracy, the only offense for which appellant was indicted, in the following words:

"Now the claim is, the defendant isn't charged with a conspiracy * * * he is charged with a violation of this so-called Espionage Act which I read to you, § 32. * * *" (Italics ours.)

The charge then discussed the Government's theory and epitomized it as follows: "The Government charges they prepared this plan to violate this Espionage Law."

It thus appears that up to this point the court had stated categorically, and had emphasized through repeated asseveration, that appellant was charged with a violation of a section of the Espionage Act. This was clear error. The sole crime ascribed to appellant in the indictment was that of conspiracy. These errors in the charge compel a reversal if it affirmatively appears that they affected some substantial right of the appellant. Title 28, § 391, U.S. C.A.; Simpson v. United States, 9 Cir., 289 F. 188, 191; Haywood v. United States, 7 Cir., 268 F. 795. It is well settled that appellant had a right to a correct statement of the law from the court. It is of course the duty of the court to explain the law of the case to the jury. Bird v. United States, 180 U.S. 356, 361, 21 S.Ct. 403, 45 L.Ed. 570.

At the point in the charge above indicated, counsel for the Government asked, "May counsel approach the bench, please?", to which the court responded "Yes." After an unreported colloquy...