United States v. Meyer

• Decision Date: 03 February 1944
• Docket Number: No. 195.,195.
• Citation: 140 F.2d 652
• Parties: UNITED STATES v. MEYER.
• Court: U.S. Court of Appeals — Second Circuit

140 F.2d 652 (1944)

UNITED STATES v. MEYER.

No. 195.

Circuit Court of Appeals, Second Circuit.

February 3, 1944.

Edward A. Alexander, of New York City, for defendant-appellant.

Thomas K. Fisher, Asst. U. S. Atty., of New York City (James B. M. McNally, U. S. Atty., of New York City, and Edward J. Ennis, Director, Alien Enemy Control Unit, Department of Justice, of Washington, D.C., on the brief), for plaintiff-appellee.

Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

By Executive Order 9066, promulgated February 19, 1942, President Roosevelt, as President of the United States and Commander-in-Chief of the Army and Navy, reciting that the successful prosecution of the war required every possible protection against espionage and sabotage to national-defense material, premises, and utilities, authorized and directed military commanders to prescribe military areas from which any person might be excluded, when such action should be deemed necessary or desirable, and with respect to which the right of any person to remain therein should be subject to such restrictions and orders as the designated military commanders might impose. 7 Fed.Reg. 1407. This grant of authority was in effect ratified by Congress on March 21, 1942, by the passing of 18 U.S.C.A. § 97a, which makes it a misdemeanor for any person knowingly to "enter, remain in, leave, or commit any act in any military area" prescribed by the military, under authority of an Executive Order of the President, contrary to restrictions applicable in such area. See Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774. Pursuant to the authority granted in Executive Order 9066, Lieutenant General Drum, military commander of the Eastern Defense Command, issued on May 16, 1942, Public Proclamation No. 1, 7 Fed.Reg. 3830, establishing the Eastern Military Area. Public Proclamation No. 2, issued by General Drum on September 7, 1942, 7 Fed. Reg. 7335, recited that military necessity required the promulgation of certain restrictions within the Eastern Military Area, and declared that "any person whose presence in the Eastern Military Area * * * is deemed dangerous to the national defense by the Commanding General * * * will be ordered excluded from the Military Area." Thereafter, General Drum issued a series of rules and regulations prescribing standard operating procedure for exclusion proceedings and constituting a board of officers to make recommendations in exclusion cases.

On February 22, 1943, the Exclusion Board was ordered to conduct a hearing at which defendant, who was stated to be under consideration for exclusion from the Area or a part thereof, was to be given an opportunity to appear and present evidence. Defendant appeared before the Board on February 27, 1943, and March 23, 1943. He was notified — first in writing in advance of the hearing and then twice orally at hearing — that he was under no compulsion to attend these hearings and could decline to answer any question asked him thereat; that he was permitted to say anything he wished, to introduce witnesses and present evidence on his behalf, and to have an adviser present; but that the adviser could not examine or cross-examine witnesses or object to questions. During the course of the examination of March 23, 1943, questions were asked defendant concerning his relationships with on Frederick Duquesne, who had been convicted in December, 1941, of conspiring to commit espionage against the United States. He answered that he had "once" and "just once" met Duquesne and that he had never had any correspondence with him.

As a result of these statements, defendant was indicted on two counts of making a false and fraudulent statement in a matter "within the jurisdiction of any department or agency of the United States," in violation of 18 U.S.C.A. § 80. The first count named his statement that he had only once met Duquesne, while the second dealt with his statement that he never had any correspondence with Duquesne. The jury brought in a verdict of guilty on both counts, and the court sentenced him to imprisonment. At the trial it appeared that Duquesne had visited defendant's office in New York City two or three times a week during July and August, 1940, and that they had had numerous conversations during that time. One government witness, who "didn't want to come to testify against" defendant, stated that in 1941 he had been introduced to Duquesne by someone he was "inclined to think" was defendant. From January 20 to February 6, 1941, Duquesne entered the building in which defendant's office was located at least six times, and on January 29, 1941, defendant and Duquesne left the building together. There was also produced a letter in defendant's handwriting on his office stationery, but with his telephone numbers and home address written in, which was found among Duquesne's personal effects. It was addressed to "Dear Fritz" and was signed "Bill."

There was, therefore, no question of the sufficiency of the evidence to sustain the conviction if a crime was legally charged. Defendant does not contend, and, indeed, could not very well do so in the light of Hirabayashi v. United States, supra, that Executive Order 9066 and 18 U.S.C.A. § 97a are void on their faces and patently unconstitutional. He does assert, however, that 18 U.S.C.A. § 80 is not applicable because its terms do not fit his case, in that the military is not a "department or agency of the United States" and the statements here were oral, and because the Exclusion Board was not a validly constituted tribunal, as neither the Executive nor the Military Commander could empower a board to exclude citizens from an area not subjected to martial law, citing Schueller v. Drum, D. C. E. D. Pa., 51 F.Supp. 383. Cf. Ebel v. Drum, D.C. Mass., 52 F.Supp. 189.

Section 80 is divided into two clauses, of which the first condemns the making of a false claim against the Government of the United States to be presented to "any person or officer in the civil, military, or naval service" or to a government department or corporation, while the second, as finally amended in 1938, prohibits broadly the making of "any false or fraudulent statements or misrepresentations * * * in any matter within the jurisdiction of any department or agency of the United States." See United States v. Zavala, 2 Cir., 139 F.2d 830, recently decided by us, quoting the statute. Defendant stresses the fact that the first clause specifically mentions the military service, while the second does not. But it cannot be said that for this reason Congress did not intend to include the military within the definition in the second clause of "any department...