United States v. McDonald

• Decision Date: 02 March 1920
• Citation: 265 F. 754
• Parties: UNITED STATES ex rel. WESSELS v. McDONALD, Commandant of Brooklyn Navy Yard.
• Court: U.S. District Court — Eastern District of New York

265 F. 754

UNITED STATES ex rel. WESSELS v. McDONALD, Commandant of Brooklyn Navy Yard.

United States District Court, E.D. New York.

March 2, 1920

[Copyrighted Material Omitted]

Thomas J. O'Neill and William H. Daly, both of New York City (Leonard F. Fish, of New York City, and William F. Lally, of Yonkers, N.Y., of counsel), for relator.

Leroy W. Ross, U.S. Atty., of Brooklyn, N.Y., and Robert E. Adams Judge Advocate (Charles J. Buchner, of Brooklyn, N.Y., and George Winship Taylor, of Baltimore, Md., Asst. U.S. Attys of counsel), for respondent.

MANTON Circuit Judge.

The relator sued out this writ of habeas corpus, demanding his discharge. In his petition, he alleged that he was a resident of Yonkers, Westchester county, N.Y., and that he has been deprived of his liberty without warrant of law. He relates that he has been indicted by the grand jury of the Southern district of New York on three separate charges of crime, which are referred to hereafter. He details, in particularity, as to what transpired from the moment of his apprehension until suing out this writ. He specifies his arrest as having taken place in the city of New York, and alleges that the courts in that locality were functioning, and declares that it was at no time under martial law. He declares that the United States was not in the 'theater of warfare,' and concludes that the court-martial has not jurisdiction to try him on the charge of being a spy.

The return alleges, among other things:

'(a) In January, 1918, the relator called at the office of the Department of Justice of the United States in the borough of Manhattan. He then stated to William T. Sanders, Jr., special agent of that department, that he, the relator, was a citizen of Switzerland, and that he was in New York on business connected with Richter & Co., manufacturers of toy stone building blocks and patent medicines, with offices at 74 to 80 Washington street, New York City. The relator was shown several letters, which were then under investigation by the Department of Justice, and stated that they were not for him, and he knew nothing about them. The relator also exhibited to the said agent what appeared and purported to be a Swiss passport, and stated that it was his passport issued to him by the Swiss government. He was thereupon allowed to depart. He is a native of Germany, and, at the time of said visit to the Department of Justice, was a subject of the Imperial German government and an officer in the Imperial German navy. He was not then and never has been a citizen of the Swiss republic. The passport which he exhibited was forged, and known by the relator to be forged. The letters which were under investigation by the Department of Justice were in fact intended for and directed to the relator, having been theretofore sent to him by agents of the Imperial German government.

'(b) In April, 1918, the relator again visited the said office of the Department of Justice. He then saw Daniel Davidson, special agent of that department, and stated to said agent that he was a citizen of Switzerland, and exhibited his beforementioned forged Swiss passport and was thereupon allowed to depart.

'(c) On May 1, 1918, the relator was arrested by Harry Jentzer, special agent of the Department of Justice of the United States. He then made to said agent substantially the same statement he had previously made to Agents Sanders and Davidson. Throughout the period of time involved, relator stated to all the representatives of the Department of Justice and of the government of the United States with whom he came in contact that he was a citizen of Switzerland; that his true name was Carl Rodiger; that he was in the United States on business connected with Richter & Co., all of which was false, and known by the relator to be false.

'(d) On and after April 6, 1917, the relator was an alien enemy within the meaning of section 4067 of the Revised Statutes of the United States. He did not register as such alien enemy as required by law and by the proclamation and regulations of the President of the United States issued pursuant to said section.

'(e) On May 1, 1918, the relator was arrested as an alien enemy. Throughout the period from that date until January 30, 1920, when he was apprehended by direction of the Secretary of the Navy as aforesaid, he was confined in the Tombs Prison in the borough of Manhattan and held as an alien enemy under a warrant duly issued in accordance with the said proclamation and regulations of the President pursuant to section 4067 of the Revised Statutes of the United States.

'3. Indictments were returned against the relator and others in the District Court of the United States for the Southern District of New York, in substance upon the charges and in the form summarized in Exhibits A, b, and C to the petition, and to said indictments the relator entered pleas of not guilty. Except as herein specifically admitted, this respondent on information and belief denies each and every allegation contained in paragraph 3 of the petition.

'4. The abstracts annexed to the petition as Exhibits A, b, and C are substantially correct summaries of said indictments, but for greater certainty this respondent produces and files herewith as parts of this return full copies of such indictments, marked Exhibits V, VI, and VII, respectively.

'5. Upon information and belief, the petitioner has never been in the land forces, naval forces, militia, or public service of the United States; ever since November, 1916, he has been in the United States, and for most of that period within the Southern district of New York, as an officer of the Imperial German navy and agent of the German government, and ever since April 6, 1917, as a spy of the Imperial German government; since November, 1916, within the Southern district of New York, the courts of justice have been open, their process has not been obstructed, and there has been therein no rebellion, invasion, military government, or martial law. Except as herein specifically admitted, this respondent, on information and belief, denies each and every allegation contained in paragraph 6 of the petition.

'6. On information and belief, in accordance with the direction of the Attorney General of the United States, duly authorized thereto by the proclamation and regulations of the President issued pursuant to section 4067 of the Revised Statutes of the United States, the United States marshal for the Southern district of New York, through one of his deputies, delivered the petitioner at the City Prison in the borough of Manhattan to an officer of the United States navy, by whom he was transported to the Brooklyn Navy Yard prison, where he has ever since been and now is held in the custody of this respondent, in manner and form and under authority and process as hereinbefore alleged, and where on January 31, 1920, he was served with the charge and specifications as hereinbefore alleged. This respondent has no knowledge or information sufficient to form a belief as to what statement was made to petitioner by his attorney, and, except as herein specifically admitted, on information and belief, denies each and every other allegation contained in paragraph 7 of the petition.'

To the return a traverse has been filed which sets forth:

'That the return made and filed * * * is void and of no effect, said detention being in violation of your petitioner's rights, privileges, and immunities under the Constitution and laws of the United States, for the reasons set forth in the petition for the issuance of said writ, to which your petitioner here now refers with the same force and effect as though the said petition were incorporated herein and set forth at length.'

In the federal courts, a return to a writ of habeas corpus is deemed to import verity until impeached. Crowley v. Christensen, 137 U.S. 86, 11 Sup.Ct. 13, 34 L.Ed. 620. The relator here does not impeach the return by his traverse, but in effect demurs thereto, saying that, admitting what is set forth, it is not a sufficient answer to the petition and writ. It thus appears from the return that the relator was an alien enemy and an officer of the German navy. His advent to this country was in November, 1916, and then as an agent of the Imperial German government, and since then he has continued to act as such agent. Masquerading under a false name, he gained admission to this country on a forged passport. He said his name was Carl Rodiger, a citizen of Switzerland, and asked protection under a passport issued by that government. From the return it appears that from April, 1917, until he was apprehended and imprisoned on May 1, 1918, he acted as a German spy. Since May 1, 1918, until May 30, 1920, he has been held as an alien enemy under the act of Congress, and was a prisoner in the Tombs Prison, New York City. The order for his arrest was a presidential warrant issued pursuant to section 4067 of the United States Revised Statutes (Comp. St. Sec. 7615). When arrested he was found in the borough of Manhattan, city of New York. On January 30, 1920, he was arrested by the Naval authorities on the charge of being a spy, and is now to be tried by a court-martial of the navy. He has been served with charges and specifications and notified of his rights. His hope in suing out this writ of habeas corpus is based upon the protection of the Fifth and Sixth Amendments to the Constitution. They read as follows:

'Article V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; * * * nor be

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