United States v. Stephan, 26619.

• Citation: 50 F. Supp. 445
• Decision Date: 22 May 1943
• Docket Number: No. 26619.,26619.
• Parties: UNITED STATES v. STEPHAN.
• Court: U.S. District Court — Western District of Michigan

50 F. Supp. 445

UNITED STATES v. STEPHAN.

No. 26619.

District Court, E. D. Michigan, S. D.

May 22, 1943.

John C. Lehr, U. S. Atty., and John W. Babcock, Asst. U. S. Atty., both of Detroit, Mich., for plaintiff.

Nicholas Salowich, of Detroit, Mich., and James E. McCabe, of Nashville, Tenn., for defendant.

TUTTLE, District Judge.

This is a motion for a new trial. After a trial in this Court, the defendant was found guilty of the crime of treason by a jury on July 2, 1942. On July 3, 1942, defendant filed a motion for a new trial, which, after oral arguments, was denied on July 13, 1942. On August 6, 1942, the defendant was sentenced to death. An appeal was taken to the Circuit Court of Appeals for the Sixth Circuit. By order of this Court, the record on appeal was not reduced to narrative form, but was reproduced in its entirety in order that the reviewing court might have a complete and accurate picture of all that transpired in this court. The appeal was heard by five judges of the Circuit Court of Appeals, which by a unanimous decision affirmed the judgment of this Court. Stephan v. United States, 6 Cir., 133 F.2d 87. A petition for certiorari was filed with the Supreme Court on March 4, 1943, and was denied by that court on April 5, 1943, 63 S.Ct. 858, 87 L.Ed. ___. After the filing of the present motion for a new trial on April 28, 1943, opportunity was extended by this Court to the defendant and the government to submit written arguments and affidavits in support of and in opposition to the motion, which has been done. In addition, the defendant, on May 10, 1943, filed along with his argument a supplement to the motion for a new trial, claiming an additional ground therefor.

The original motion of April 28, 1943, now before the Court, alleges twelve grounds for a new trial, but they may all be grouped and dealt with under three headings: (1) The claim of newly-discovered evidence of a material character pertaining to one William Nagel; (2) the claim of defendant that the order admitting him to citizenship was void, and that he could not therefore commit the crime of treason; (3) the claim that there were numerous defects in the indictment and errors in the trial of this case. The supplement to the motion sets up a fourth ground for a new trial. namely, the claim that newly-discovered evidence shows that the government was guilty of entrapment, constituting a defense to the crime. These claims will be considered in order.

1. Rule 2(3) of the Rules of Criminal Procedure After Verdict, 18 U.S.C.A. following section 688, provides that in capital cases a motion for a new trial on the ground of newly-discovered evidence may be made at any time before execution of the judgment. The claim of newly-discovered evidence here pertains to an alleged conversation between defendant and William Nagel on April 18, 1942. However, the motion here made (including the arguments and affidavits in its support) does not show that any new evidence has been discovered by the defendant since the trial. There is no showing that any new witness has been discovered, or what testimony would be given at a new trial if one were granted. The only statements in the various papers filed by defendant bearing upon this question are as follows: The statement in the affidavit of his counsel that defendant himself would swear to the truth of the claim; the statement in the affidavit of defendant that he believes Nagel will testify truthfully as to the conversation when placed on the stand; and the affidavit of his counsel that one Erna Schwartz stated to him that Nagel was in defendant's restaurant at the time the conversation is claimed to have taken place. The allegations of the motion are so vague and indirect that they would not be considered by this court, except for the severe penalty which has been imposed upon the defendant. From what occurred at the trial, from a letter written by the defendant to the Judge of this Court on April 17, 1943 (which is on file in the case), and from the conclusions of counsel based upon hearsay and stated in the motion, this Court will assume that defendant intends to make the following claim: That after defendant met Krug, a lieutenant in the German army, who had escaped from a Canadian prison, and after defendant had aided Krug with money, clothing, and other things needed for his concealment and escape, and while the defendant was concealing Krug at the Field Hotel for the night of Saturday, April 18, 1942, and while defendant was planning to send Krug to Chicago on the following morning of Sunday, April 19, 1942, one William Nagel came to the restaurant of the defendant; that defendant then told Nagel what had happened and asked Nagel's advice; that Nagel advised defendant that, as Krug would be captured anyway, he should help him to get to Chicago; that Nagel then gave defendant three dollars to help him send Krug to Chicago; and that as a result of Nagel's advice defendant sent Krug to Chicago by bus rather than by train, as defendant had originally planned.

This conversation between defendant and Nagel (assuming that it occurred) cannot by any stretch of the imagination be considered newly-discovered evidence. The defendant, of course, knew of the conversation from the beginning; and, in fact, related it in a written statement made to an agent of the Federal Bureau of Investigation two days after it occurred, which statement was introduced in evidence by the government at the trial. The present claim only amplifies, and does not alter, the essential features of the claim made in that statement, the principal addition being the claim that Nagel contributed three dollars to Krug's bus fare. Thus, the claim of the defendant was known to his counsel, counsel for the government, the jury, and this Court at the trial. There is, therefore, nothing...