United States v. McWilliams, Cr. No. 73086.
| Decision Date | 28 February 1944 |
| Docket Number | Cr. No. 73086. |
| Citation | 54 F. Supp. 791 |
| Parties | UNITED STATES v. McWILLIAMS et al. |
| Court | U.S. District Court — District of Columbia |
O'John Rogge and Joseph W. Burns, Sp. Assts. to Atty Gen., for the United States.
Harry A. Grant, of Washington, D. C., for Garland L. Alderman.
W. Hobart Little, of Washington, D. C., for David Baxter.
Ira Chase Koehne and M. Edward Buckley, both of Washington, D. C., for Howard V. Broenstrupp and Frank W. Clark.
John T. Bonner and J. Austin Latimer, both of Washington, D. C., for George E. Deatherage.
Frank J. Kelly, of Washington, D. C., for Prescott F. Dennett.
Jos. C. Turco, of Washington, D. C., and Floyd Lanham, of Chicago, Ill., for Lawrence Dennis.
Claude A. Thompson and Wm. A. Gallagher, both of Washington, D. C., for Hans Diebel.
Dellmore Lessard, of Portland, Or., and W. Hobart Little, of Washington, D. C., for Elizabeth Dilling.
Ethelbert B. Frey, of Washington, D. C., for Robert E. Edmondson.
Ira Chase Koehne and James J. Laughlin, both of Washington, D. C., for Ernest F. Elmhurst.
Rees B. Gillespie and Joseph H. Bilbrey, both of Washington, D. C., for Franz K. Ferenz.
Marvin F. Bischoff, of Washington, D. C., for Elmer J. Garner.
Frank H. Myers and Elizabeth R. Young, both of Washington, D. C., for Charles B. Hudson.
Ellis O. Jones, in pro. per.
Chas. E. Morganston, of Washington, D. C., for August Klapprott.
P. Bateman Ennis, of Washington, D. C., for Gerhard W. Kunze.
Frank H. Myers and Elizabeth R. Young, both of Washington, D. C., for William R. Lyman, Jr.
Maximilian St. George, of Chicago, Ill., and W. Hobart Little, of Washington, D. C., for Joseph E. McWilliams.
J. Austin Latimer, of Washington, D. C., for Robert Noble.
Herbert S. Ward, of Washington, D. C., for William Dudley Pelley.
Harry A. Grant, of Washington, D. C., for E. J. Parker Sage.
Henry H. Klein, of New York, and James J. McLaughlin, of Washington, D. C., for Eugene N. Sanctuary.
Claude Thompson and Wm. A. Gallagher, both of Washington, D. C., for Herman M. Schwinn.
James J. Laughlin, of Washington, D. C., for Edward J. Smythe.
L. J. H. Herwig, of Washington, D. C., for Peter Stahrenberg.
J. Austin Latimer, of Washington, D. C., for James True.
Ben Lindas, of Washington, D. C., for George S. Viereck.
Ira Chase Koehne and M. Edward Buckley, both of Washington, D. C., for Lois DeLafayette Washburn.
John W. Jackson & E. Hilton Jackson, of Washington, D. C., for Gerald B. Winrod.
For the purposes of this memorandum, the following résumé of the indictment before the court is believed sufficient to make understandable the conclusions herein announced:
First, the indictment avers that there began in Germany in 1933 a movement to substitute for the existing form of government in the United States a National Socialist form by causing insubordination, disloyalty, mutiny, and refusal of duty by members of the military and naval forces of the United States; that the thirty defendants named in the indictment joined in such movement; and that on June 28, 1940 Congress made it a crime (without regard to wartime or the use of force) for anyone "with intent to interfere with, impair and influence the loyalty, morale and discipline of the military and naval forces of the United States" to "advise, counsel, urge and cause insubordination, disloyalty, mutiny and refusal of duty by members of the military and naval forces of the United States," or to "distribute and cause to be distributed written and printed matter advising, counseling and urging insubordination," etc., as aforesaid (18 U.S.C.A. § 9), or to conspire to commit any of the said prohibited acts (18 U.S.C.A. § 11).
Second, the indictment charges that continuously from and after June 28, 1940, and up to and including the date of the filing of this indictment, and in continuance of the aforesaid movement in which they had joined, the thirty defendants, in violation of said law, conspired in the District of Columbia with one another and with officials of the German Reich and leaders and members of the Nazi Party therein, as co-conspirators; and that as a part of said conspiracy and as means and methods of accomplishing the objects thereof, the said defendants and co-conspirators did, in the District of Columbia, (a) cause to be printed and circulated, inter alia, 42 specified publications and (b) use, inter alia, 35 specified agencies as distributors, and (c) thereby and otherwise disseminate, inter alia, 24 specified representations and charges.
The attacks interposed by counsel for various defendants, that are presented to the court in due and intelligible form, subdivide into the following grounds: (a) prejudicial surplusage; (b) duplicity; (c) vagueness and uncertainty; (d) three year bar; and (e) venue. Said grounds will be considered seriatim.
(a) It is earnestly contended that, because the acts alleged were not then a crime, the averments as to a movement in Germany started prior to June 28, 1940, in which the defendants joined, are prejudicial surplusage in an indictment that charges a conspiracy beginning after the date when, for the first time, such a movement became a crime. The court is unable to agree with the contention. Were it not alleged that the defendants joined in the movement, thereby becoming responsible for it, the argument might have more force. It appears to be well settled, however, that proof of the alleged prior facts, if offered at the trial, would be admissible as bearing on both the intent with which formed and the fact of formation of the subsequent conspiracy charged. Therefore, the averments are not surplusage; nor would they become so even if proof of the matter averred is conceded to be admissible without averment. But this is a moot question under the indictment. Furthermore, the government's case on the merits is contingent on its ability to prove the conspiracy. If unproved, there can be no prejudice, since there will be no case. If proved, there can be no prejudice for it is only detriment that results from unfair judgment that constitutes legal prejudice.
(b) The contention that the indictment is duplicitous, in fact, "triplicitous" as some counsel have argued, cannot be sustained. The specific and...
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