United States v. McWilliams, Cr. No. 70153
| Decision Date | 22 November 1946 |
| Docket Number | Cr. No. 70153,71203,73086. |
| Citation | 69 F. Supp. 812 |
| Parties | UNITED STATES v. McWILLIAMS et al. |
| Court | U.S. District Court — District of Columbia |
Theron Lamar Caudle, of Washington, D. C., for the United States.
Maximilian J. 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 George E. Deatherage.
T. Emmett McKenzie and W. Hobart Little, both of Washington, D. C., for William Dudley Pelley.
M. Edward Buckley and John B. Gunion, both of Washington, D. C., for Edward James Smythe.
Joseph C. Turco, of Washington, D. C., for Lawrence Dennis.
M. Edward Buckley and Ira Chase Koehne, both of Washington, D. C., for Howard V. Broenstrup, Lois de Lafayette Washburn and Frank W. Clark.
Orille C. Gaudette and John F. Hillyard, both of Washington, D. C., for Ernest F. Elmhurst.
Ethelbert B. Frey, of Washington, D. C., for Robert E. Edmondson.
Harry A. Grant, of Washington, D. C., for E. J. Parker Sage and Garland L. Alderman.
Frank H. Myers, James A. Davis and Thomas X. Dunn, all of Washington. D. C., for Charles B. Hudson.
Elizabeth R. Young, of Washington, D. C., for William R. Lyman, Jr.
E. Hilton Jackson and John W. Jackson, both of Washington, D. C., and George Siefkin, of Wichita, Kan., for Gerald B. Winrod.
J. Austin Latimer, of Washington, D. C., and Albert W. Dilling, of Chicago, Ill., for Elizabeth Dilling.
Ben Lindas, of Washington, D. C., for George Sylvester Viereck.
Frank J. Kelly, of Washington, D. C., for Prescott F. Dennett.
P. Bateman Ennis and Arthur Carroll, both of Washington, D. C., for Gerhard Wilhelm Kunze.
Charles E. Morganston, of Washington, D. C., for August Klapprott.
Claude Thompson and William A. Gallagher, both of Washington, D. C., for Hermann M. Schwinn and Hans Diebel.
Joseph H. Bilbrey and Rees B. Gillespie, both of Washington, D. C., for Franz K. Ferenz.
George B. Fraser, of Washington, D. C., for Eugene N. Sanctuary.
L. J. H. Herwig, of Washington, D. C., for Peter Stahrenberg.
Ellis O. Jones, pro se.
These cases are before me upon motions to dismiss, lately filed by permission of the Court.
Until yesterday, so far as the Court has been informed, the prosecution has been chiefly entrusted to O. John Rogge, Special Assistant to the Attorney General. On January 25, 1946, when the Court heard previous motions to dismiss, Mr. Rogge stated that in view of late decisions of the Supreme Court of the United States he felt doubtful as to whether a conviction of the defendants could be sustained Counsel explained this was his personal opinion, that the Department of Justice had not taken a position in the matter, and for this reason he was not at liberty to state its opinion. Two weeks later Mr. Rogge again appeared before the Court upon further hearings of the motions to dismiss. The Court asked whether he then was in a position to tell whether the prosecution wished to proceed with the case. The Court was requested to give the Government a reasonable amount of time to answer this question; however, on this occasion the Chief Prosecutor again stated that after considering Supreme Court decisions in comparable cases it was his personal view that it was doubtful whether a conviction would be sustained. The Court then took the question of dismissing the cases under advisement.
On March 1, 1946, while the matter was pending under advisement, counsel for the prosecution applied to the Court to postpone its rulings for a period of 30 days, alleging it was believed certain testimony might be available from witnesses in Germany which would directly establish guilt of certain of the defendants. When this application was presented it was stated the Attorney General wished to send Mr. Rogge to Germany to make an investigation. Counsel for defendants objected. While unusual in the midst of a long pending criminal case to permit an investigation to endeavor to build up a doubtful case, I decided, because the charges were serious and access to possible evidence previously had been foreclosed by the war with Germany, I should permit time for the investigation. Accordingly, the prosecution was granted until April 30, 1946, a longer time than had been asked. A written memorandum filed by the Court granting this time stated that "On or before April 30, 1946, counsel for the prosecution will be expected to advise the Court in writing (copy to be sent to each defendant) whether prosecution of the cases is desired, also whether in his judgment, a conviction of defendants, if one is obtained, may be sustained under controlling decisions of the Supreme Court of the United States."
On April 30, 1946, a memorandum was filed by one of counsel for the prosecution, stating that prosecution was desired, "provided the prosecutor's investigation being presently conducted in Germany elicits additional evidence of guilt of defendants". This memorandum stated that the investigation had not been completed and that 45 days additional time would be required.
While I did not specifically grant the additional time to complete the investigation, it eventuated that Government counsel were able to secure this time, because it was not until May 18, 1946, that the motions to dismiss the indictments were overruled.
The case was called on September 20, 1946, for the purpose of setting a date for trial. On this occasion, Chief Prosecutor Rogge, being asked the third time in eight months the attitude of the prosecution, stated that there still remained in his mind the question whether there was sufficient evidence to meet the test of the Supreme Court cases. He said he had serious doubts on this point, as he previously had advised the Court, but that the Department of Justice wished to suggest a trial date in December. Mr. Rogge informed the Court that an analysis he had made of evidence found in Germany had been turned over to the Department of Justice the previous week. Inasmuch as Mr. Rogge on three occasions, one after a lengthy investigation in Germany, had stated to the Court his serious doubts of a successful prosecution, a renewal of the motions to dismiss was permitted. The motions to dismiss now under consideration then were filed.
On yesterday, at the time of the hearing upon these motions, Mr. Rogge was not present representing the prosecution. Theron Lamar Caudle, Assistant Attorney General, for the first time entered his appearance in behalf of the prosecution. Mr. Caudle stated the Department wished to prosecute all of the cases and to have a date set for trial; that the Department did not share the doubts of Mr. Rogge. The Court requested Mr. Caudle to state his reasons why those now in charge had a different view from Mr. Rogge. In...
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