United States v. Chandler

• Decision Date: 28 April 1947
• Docket Number: Cr. No. 17667.
• Parties: UNITED STATES v. CHANDLER.
• Court: U.S. District Court — District of Massachusetts

72 F. Supp. 230

UNITED STATES v. CHANDLER.

Cr. No. 17667.

District Court, D. Massachusetts.

April 28, 1947.

COPYRIGHT MATERIAL OMITTED

George F. Garrity, U. S. Atty., and Gerald John McCarthy, Asst. U. S. Atty., both of Boston, Mass., Oscar R. Ewing, Sp. Asst., to the Atty. Gen., Theron L. Caudle, Asst. Atty. Gen., Clyde E. Gooch and Tom DeWolfe, Sp. Assts. to the Atty. Gen., and Samuel C. Ely and Victor C. Woerheide, Sp. Attys., both of Washington, D. C., for plaintiff.

Claude B. Cross and Edward C. Park, both of Boston, Mass., for defendant.

FORD, District Judge.

The defendant moves to dismiss the indictment and bases his motion on five grounds which will be discussed in the order they are set out in the motion.

The indictment consists of a single count and in substance charges that the defendant, owing allegiance to the United States, committed 23 overt acts at various places in Germany in furtherance of his treasonable adherence to that country or its agents.

I. "The indictment improperly joins in one count several charges for separate and distinct acts and is, therefore, duplicitous".

It is true, as defendant argues, an indictment is duplicitous which joins two or more distinct and separate offenses in the same count, but this rule does not preclude the charge in the same count of several acts relating to the same transaction and together constituting only one offense or one connected charge or transaction, (27 Am.Jr. Sec. 124, p. 684). Where a series of acts are charged as having been committed in pursuance of a unitary offense, it is not duplicity to include the separate acts in the same count. Ford v. United States, 273 U.S. 593, 602, 47 S.Ct. 531, 71 L.Ed. 793.

The defendant does not challenge the accuracy of what has already been said, as he states in his brief: "It is true that a count in an indictment is not duplicitous merely because it charges several related acts, all of which enter into and constitute a single offense, though each of such acts may in itself constitute an offense", citing, among other cases, Andersen v. United States, 170 U.S. 481, 500, 18 S.Ct. 689, 42 L.Ed. 1116; Crain v. United States, 162 U.S. 625, 636, 16 S.Ct. 952, 40 L.Ed. 1097. What he does challenge is the contention of the government that it has charged "a single treasonous enterprise". Defendant contends the acts charged were not sufficiently related in time and space to constitute a single offense. Admittedly the crime of treason consists of the two essential elements: adherence to the enemy and giving aid and comfort. The overt act in manifestation of the treasonable intent is not an essential element of the crime of treason. Defendant in his brief agrees that an adherence to the enemy may be continuous. The government in the present indictment alleges it was continuous between the actual dates. The overt acts reflect the fact that the acts were related to the same enterprise, i. e., activities for the German Radio Broadcasting Company. The fact that they were spread over a period of more than three years does not belie the fact the defendant was engaged in a single enterprise with the German Short Wave Radio Station.

The conclusion seems warranted that the indictment charges a unitary offense of treason beginning December 11, 1941 and continuing up to and including May 8, 1945. That being so, for the reasons set forth, the indictment is not duplicitous. Cf. United States v. Haupt, 7 Cir., 136 F.2d 661, 665, and 7 Cir., 152 F.2d 771, 798.

II. "The indictment does not state facts sufficient to constitute an offense against the United States".

Defendant contends that the Constitutional definition of treason does not comprehend an adherence to the enemy by one residing in enemy country.

At the outset it is plain that the Constitutional definition of treason does not expressly place any territorial limitation in respect of the crime of treason. Article III, Section 3. Treasonable acts endanger the sovereignty of the United States. It has never been doubted that Congress has the power to punish an act committed beyond the territorial jurisdiction of the United States which is directly injurious to the government of the United States. United States v. Bowman, 260 U.S. 94, 97, 43 S.Ct. 39, 67 L.Ed. 149. It is true as stated in United States v. Rodgers, 150 U.S. 249, 264, 14 S.Ct. 109, 37 L.Ed. 1071, that "as a general principle the criminal laws of a nation do not operate beyond its territorial limits" but, as stated in United States v. Bowman, supra, 260 U.S. at page 97, 43 S.Ct. at page 41, 67 L.Ed. 149: "The necessary locus, when not specifically defined, depends upon the purpose of Congress as evinced by the description and nature of the crime and upon the territorial limitations upon the power and jurisdiction of a government to punish crime under the law of nations." This court believes Congress did define the locus of the crime of treason without violating in any manner the Constitutional definition of treason. Section 1 of the Criminal Code, 18 U.S.C.A. § 1, reads as follows: "Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason." This statute, if given a natural meaning, seems directed at the crime of treason wherever the treasonable acts are committed, whether territorially or extra-territorially. If we assume, as defendant argues, that the section contains no qualification as to the locale of the adherence and the addition of the words "within the United States or elsewhere" define the locality only of "giving them aid and comfort", this is not sufficient basis for an implication that the framers intended that adherence must be within the United States. Under the defendant's theory, the Congressional definition was declaratory of the Constitutional intent and in employing the words "or elsewhere" it contemplated giving of aid and comfort outside the United States by a traitor residing within the country. This theory violates the plain language of the statute. Moreover, any physical distinction between "adhering" and "giving of aid and comfort" seems tenuous indeed, in view of an opinion popular among delegates to the Constitutional Convention that the latter phrase was merely explanatory of the former, and the resolution of the Committee of the Whole that the latter phrase be inserted as restrictive of the former. See Hurst, Treason in the United States, 58 H.L.R. 395, 402.

As external evidence of the framers' intent, defendant cites the resolution, on June 24, 1776, of the Continental Congress, drawn by men who later helped in writing the Constitution, which comprehended treasons within the colonies only. 5 Journals of the Continental Congress (1906) 475.

The defendant also cites the English statute which has been the source for our enactments, 25 Edw. III, which he contends did not apply to foreign treasons at the time of the adoption of the Constitution. (It should be noted, however, that many of the authorities cited in Rex v. Casement, 1917 Law Reports 1, King's Bench Division 98, which affirmed a conviction for a foreign treason, antedate the adoption of the Constitution). The defendant argues that the fathers had the same limitation in mind; and, if not, Article III, Section 3 is more extensive than the English Treason Act which they considered too extensive. The answer is that if they had intended to restrict the crime to local treasons, they would have adopted a definition which included a limitation similar to 25 Edw. III. The delegates to the Constitutional Convention had every opportunity to do so. They had as models the resolution of the Continental Congress and the treason acts passed by a majority of the colonies. One of their most illuminating debates on the treason clause revolved about a definition proposed by Gouverneur Morris and Randolph which stated: "* * * that if a man do levy war agst. the U. S. within their territories, or be adherent to the enemies of the U. S. within the said territories, giving them aid and comfort within their territories or elsewhere, * * * he shall be adjudged guilty of Treason." (Italics mine.) See Hurst, op. cit. supra, 58 H.L.R., at 399-402. The conclusion seems imperative that the italicized words were omitted deliberately from the final draft, and with a purpose to encompass foreign treasons.

This interpretation finds support in the writings of Thomas Jefferson who, though himself not a delegate to the Constitutional Convention, participated in drafting both the treason act recommended by the Continental Congress and the Virginia treason statute of October, 1776. Regarding a section on treason to be submitted to the Virginia legislature, he bracketed the words "within the same" following "* * * or be adherent to the enemies of the Commonwealth", and appended the following footnote: "These words in the English statute narrow its operation. A man adhering to the enemies of the Commonwealth, in a foreign country, would certainly not be guilty of treason with us, if these words be retained. The convictions of treason of that kind in England have been under that branch of the statute which makes the compassing the king's death treason. Foster 196, 197. But as we omit that branch, we must by other means reach this flagrant case." (Emphasis supplied) See Hurst, op. cit. supra, 58 H.L.R. at 252-3. Professor Hurst's comment follows: "Plainly, in 1778 he Jefferson favored a general policy of limiting the scope of the offense. On the other hand, like the draftsmen of the Federal Constitution, he wished the law to give firm protection to the state within the area embraced by the definition: hence his extended definition of `adhering to the enemy'". Thus the view that the Constitutional definition may be in at least one respect more extensive than that in the English Act seems not at all repugnant.

The defendant...