United States v. Pelley, 8086-8088.

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: EVANS, MAJOR, and KERNER, Circuit
• Citation: United States v. Pelley, 132 F.2d 170 (7th Cir. 1943)
• Decision Date: 15 February 1943
• Docket Number: No. 8086-8088.,8086-8088.
• Parties: UNITED STATES v. PELLEY. SAME v. BROWN. SAME v. FELLOWSHIP PRESS, Inc.

132 F.2d 170 (1942)

UNITED STATES v. PELLEY.

SAME v. BROWN.

SAME v. FELLOWSHIP PRESS, Inc.

Nos. 8086-8088.

Circuit Court of Appeals, Seventh Circuit.

December 17, 1942.

Writ of Certiorari Denied February 15, 1943.

Oscar F. Smith, of Indianapolis, Ind., and Floyd G. Christian, of Noblesville, Ind., for appellants.

B. Howard Caughran, U. S. Atty., of Indianapolis, Ind., and Henry A. Schweinhaut, Department of Justice, of Washington, D. C., for appellee.

Before EVANS, MAJOR, and KERNER, Circuit Judges.

Writ of Certiorari Denied February 15, 1943. See ___ U.S. ___, 63 S.Ct. 665, 87 L.Ed. ___.

EVANS, Circuit Judge.

Violations of the Federal Sedition law were the bases of the twelve count indictment, the verdicts of guilt, and the judgment of imprisonments and fine here appealed from.

Parties. There are three appellants, two of whom are individuals, and one, a corporation: William Dudley Pelley, president of the corporate defendant, and author of most of the criminal publications; Lawrence A. Brown, an incorporator and officer of the corporate defendant, research worker for the editorial material; and Fellowship Press, Inc., the instrumentality for publication of the offending material. A fourth defendant did not appeal. Appellants are citizens of the United States.

Verdicts and Judgment. Pelley was found guilty on all counts (save the sixth, which was dismissed) and was sentenced to fifteen years' imprisonment; Brown was found not guilty of all substantive counts and guilty of the conspiracy count and sentenced to five years' imprisonment; Fellowship Press was found guilty on all counts as charged in the indictment, and fined $5,000.

The Statute. Eleven counts of the indictment charged substantive violations of the statute, Section 3, 50 U.S.C.A. § 33, and the final count, the twelfth, charged conspiracy to commit the substantive crimes, in violation of Section 4, 50 U.S.C. A. § 34. These sections read:

"Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both." (Section 3.)

"If two or more persons conspire to violate the provisions of sections 32 or 33 of this title, and one or more of such persons does any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be punished as in said sections provided in the case of the doing of the act the accomplishment of which is the object of such conspiracy. Except as above provided conspiracies to commit offenses under this chapter shall be punished as provided by section 88 of Title 18." (Section 4.)

The Indictment. The gist of the substantive counts, couched in statutory terms, is the publication and dissemination of "false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies"; and "obstruct the recruiting or enlistment service of the United States" by distributing certain publications to persons eligible for military service. The twelfth count described a conspiracy to commit the substantive offenses. The sixth count was withdrawn by the Government because the proof required to substantiate the charge involved disclosure of naval secrets concerning our losses at Pearl Harbor.

Since the fact of publication is not challenged, the controversy is whether the statements are violative of the statutory censure. Also, inasmuch as the sentence was one which might have been pronounced upon a jury's verdict of guilt on each of the counts, we need consider specifically and at length only one count — the tenth — which seems to be the most specific and inclusive. This count first states the allegations of the first, second, and third paragraphs of count one of the indictment, which in substance assert that the corporate defendant, the Fellowship Press, from December 8, 1941, to the date of the indictment, published certain periodicals, among which was a magazine called "The Galilean Magazine," and a pamphlet entitled "We Fight for This Republic Only!" These publications were published and circulated during the months of December, January, February, and March, 1941-1942; that defendant, William Dudley Pelley, was the author-publisher of these publications, and the president of the corporation, and defendant, Lawrence A. Brown, its secretary; that from December 8, 1941, to the date of the indictment, the United States was at war with the government of Japan, and from December 11, 1941, was at war with Germany and Italy.

Following this language the allegations material to a consideration of the objections are herewith set forth. This tenth count covers forty-six printed pages of the transcript and we feel it is sufficient to abbreviate and eliminate much thereof.¹

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

The acts and words which constitute the bases of the criminal charges of the other counts are set forth in the margin.²

The Issues. Reversible error is charged, because:

(1) Women were excluded from serving on the grand jury which returned the indictment.

(2) Two special assistants to the Attorney General, who aided the District Attorney, were improperly permitted to appear before the grand jury.

(3) The counts of the indictment were ambiguously and defectively stated, in that they did not allege the name of any person who was influenced by the publications, or disclose the danger by which anyone could be influenced by such statements, and the counts were merely couched in general, statutory phraseology. It is also claimed no specific intent was shown on the part of the defendants to influence the armed forces, nor actual obstruction of recruiting. And finally, the indictment failed to point out wherein the statements were false.

(4) The statements set forth in the indictment are not upon their faces seditious, for they consist of opinions, predictions, criticisms, arguments, and "loose talk."

(5) Intent to commit the crimes was not sufficiently alleged — "the conclusion of intent could not supplant facts disclosing how they intended to so do and by what means the intent was to be carried out."

(6) Certain evidence relative to Pelley's pre-war activities with the "Silver Shirts" was received; also a Government witness testified to the close resemblance between defendants' publications and the fourteen chief propaganda themes of the Axis' powers.

The Pleadings. Defendants filed pleas in abatement, motions to quash, demurrers, and bills of particulars, all on the grounds above enumerated. All such motions were overruled.

The Facts. The evidence disclosed that the principal criminal publication, the Galilean, first issued in the fall of 1941, had a subscription list of from 1,200 to 1,500, and that from 3,500 to 5,000 copies were issued and distributed throughout the whole United States. The other document, "We Fight for This Republic Only," which was a reprint of articles appearing in the Galilean, circulated to the extent of about five to six thousand copies, distributed widely over the United States. There was a multitude of other articles which we need not refer to, since the indictment is predicated chiefly upon the articles appearing in the weekly issues of the Galilean, after the declaration of war.

The Government on the trial offered testimony to establish the falsity of the published statements — which fact was sine qua non to the existence of the offense. The nature of the published statements was such that their refutation was not easily achieved. Some of them were generalities with insidious connotations, such as "* * * you can travel in these Mobilizing Moments, and scarcely hear a word of condemnation of the Nipponese, Germans or Italians," and "No realist in his senses would contend there is unity in this country for the war's prosecution," and "we are bankrupt."

Yet the Government attempted, and, apparently to the jury's satisfaction, succeeded in proving the falsity of each and every statement. It proved the Government's solvency by the testimony of a banker who gave the assets and liabilities of the Government and of the people. It proved the lack of pro-Axis public opinion and the existence of national unity, by the testimony of public reaction as disclosed to salesmen traveling around the country, after the declaration of war.

Intent. To prove the existence of evil intent on the part of the defendants, the Government first disclosed the pre-war activities of defendant Pelley (the admissibility of this evidence will be discussed later) first as the creator of a widely publicized nation-wide Silver Shirt organization, then as candidate for President in 1936 on his own ticket, the Christian Party. His pro-Axis bent was overwhelmingly demonstrated in this campaign, and in his advertising to German-Americans, the German ancestry of his wife, and his genuine admiration of the Hitler regime. A search of his home uncovered an extensive library of German, Italian, and Japanese originated propaganda. The Government proved by scientific research and analysis that the utterances of Pelley in the Galilean were consistent and almost identical with the fourteen major themes of German propaganda. Dr. Lasswell testified that of the total of 1,240 statements in the 157 articles of the Galilean, 1,195 statements were consistent with and suggested copying from the German...