United States v. Ausmeier, 59.

• Decision Date: 21 November 1945
• Docket Number: No. 59.,59.
• Citation: 152 F.2d 349
• Parties: UNITED STATES v. AUSMEIER et al.
• Court: U.S. Court of Appeals — Second Circuit

152 F.2d 349 (1945)

UNITED STATES v. AUSMEIER et al.

No. 59.

Circuit Court of Appeals, Second Circuit.

November 21, 1945.

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David S. Kumble, of New York City, for appellants.

T. Vincent Quinn, of Brooklyn, N. Y. (Robert M. Hitchcock and Leo A. Roth, both of Washington, D. C., of counsel), for appellee.

Before L. HAND, CHASE, and FRANK, Circuit Judges.

FRANK, Circuit Judge.

1. There was ample evidence to justify the jury in finding that each of the defendants made false statements in his application in answer to items Nos. 10 and 15. No. 10 required the applicant to tell what his "activities" had been or in what "activities" he intended to be engaged; in this connection he was called on to state his "membership or activities in clubs, organizations or societies." No. 15 required him to state what "organizations," engaged in whole or part in propaganda in the United States, he had "been affiliated with or active in." We think it clear that "activities", in both 10 and 15, meant the applicant's personal activities. In addition, in No. 10, "activities" explicitly included "membership"; in No. 15, "activities" explicitly included being "a member of" or a "worker for" such an organization. Each question thus required disclosure of membership in such an organization.

Of the defendants who were full members of the Party, some answered that they were aiding "no activities in the United States." The jury could reasonably find that such answers were untrue. Other full members said they were "non-resident" members. We think that the jury could reasonably have found such answers also false. For the phrase "non-resident" members might mean that such a person, although a Nazi, was a "non-resident" of Germany residing in this country and not a member of a party active here; and No. 15 was designed to call for disclosure of activities in the United States. The answers, to say the least, were misleading, for they created the impression that the defendant's connection with the Party was such that he had no "activity" here.

Other defendants were "anwaerters" who, in their answers, revealed nothing whatever as to their connection with the Party. The jury could have found their answers false. No. 10 called for an answer as to "activities"; No. 15 called for "affiliation." The jury could reasonably have found that these defendants were "affiliated" with and "active" in the Party.

2. But the making of such false statements was not enough to justify a verdict of guilt. Pursuant to 18 U.S.C.A. § 88, each of the defendants was charged with and convicted of conspiring to defraud the United States by the filing of statements in violation of the Alien Registration Act, 8 U.S.C.A. § 452 et seq. Section 457(c) of that Act imposes a penalty on an alien who "files an application for registration containing statements known by him to be false * * *."⁶ As the substantive crime thus involved both (a) falsity and (b) knowledge of the falsity, the defendants were obviously entitled to have the judge charge, in the most unmistakable language, that no defendant here could be found guilty unless he was a party to an agreement, plan, or combination, to file an application containing statements known to him to be false.⁷ The existence of a common undertaking, in which a defendant joined, merely to file statements which were false, but not known to him to be false, could not support his conviction.

Yet nowhere did the judge plainly so advise the jurors. He carefully read to the jurors 8 U.S.C.A. § 452(a) but he neither read nor mentioned to them § 457 (c) which, as above noted, defined the substantive crime as involving the filing by an alien of statements "known by him to be false." It is clear, we think, that the judge did not consider it necessary that each defendant should have "had in contemplation all the elements of the crime" he was "charged with conspiracy to commit."⁸ Why he did not do so is, we think, made manifest by the following: Defendants requested a charge No. 34 reading, "If the evidence leaves you with a reasonable doubt whether any defendant believed the answers to questions * * * which he or she was advised to make by the German Consul, fairly complied with the instructions contained in Government's Exhibit 235, you must resolve that doubt in favor of such defendant and find him or her not guilty." In response to this request, the trial judge said: "No 34 is denied since no defendant is charged with the substantive crime. The question is whether there was a conspiracy." This was the equivalent of saying that, where a substantive crime involves knowledge, a conspiracy to commit that crime need not. His comment, we think, shows that the trial judge entertained this notion: Knowledge by a defendant of the falsity of his statements was not necessary if that defendant confederated with another person, Draeger, who, unknown to that defendant, intended to, and did, bring about the filing by that defendant of an application containing statements known by Draeger to be false.

Such a notion is not uncommon. But we consider it erroneous. It might often result in the conviction of men not guilty of wrongdoing who innocently associated themselves with others intent on wrongdoing. The conspiracy doctrine is, at best, a dangerous instrumentality the use of which is fraught with dangers to the innocent.⁹ If extended in accordance with the notion we have described, it would indeed be a menace to honest men. Cf. United States v. Peoni, 2 Cir., 100 F.2d 401, 403. As Judge Thomas said in Fulbright v. United States, 8 Cir., 91 F.2d 210, 211, where "knowledge * * * is made an essential element of the substantive crime * * * it must adhere in a charge of conspiracy to commit that crime." Escape from that doctrine cannot be had through the suggestion that the conspiracy here was "to defraud the United States," for here the conspiracy to defraud, if it existed, consisted of a conspiracy to have each defendant file statements known by him to be false.

Here, then, it was not enough that a defendant gave an answer which in fact was false, or one which was known to Draeger to be false; it was necessary for a conviction of any defendant to prove that he gave an answer which that defendant knew to be untruthful.¹⁰ On the evidence, the jury, correctly instructed, could properly have concluded that each defendant had the requisite knowledge. But the judge's instructions were such that we fear the jurors may not have comprehended that they were called upon to decide that issue of fact. Had the instructions clearly apprised them that they must pass upon that issue, we think that, having in mind the authority-loving character of many modern Germans, and particularly of Nazis, the jurors could reasonably have believed that these defendants accepted as truthful the answers suggested to them by Draeger, a German official. We may dislike the Teutonic veneration of officialdom, but it is not criminal.¹¹

We are not to be taken as saying that it was necessary for the judge to give an instruction worded precisely as was the requested Charge No. 34,¹² to which we refer primarily because his explanation of his refusal to give it illuminates his failure to instruct clearly as to the necessity of...