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United States v. German-American Vocational League Inc.

decided: January 31, 1946.


Author: Mclaughlin

Before BIGGS, WALLER and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge.

The nine appellants in this matter, including two corporations, were convicted under an indictment for conspiracy*fn1 to violate the Foreign Agents Registration Act of June 8, 1938 (McCormack Act), effective September 8, 1938, 52 Stat. 631, as amended by the Act of August 7, 1939, 53 Stat. 1244*fn2 and to defraud the United States. The conspiracy charged was to conceal the fact that the German-American Vocational League, Inc., hereafter called D.A.B., was a propaganda agency of the German Reich both directly and through other named German principals, by representing it as a social and fraternal organization to the end that it should not register as a foreign agency. The indictment was in two counts. The first was dismissed by the Court at the conclusion of the testimony. The case went to the jury on the second count.

The first point made by the appellants is that the Court erred in refusing to quash the indictment. The indictment is long and it is prolix but it does present an adequate picture of the essential elements of the crime charged and a conviction upon it would bar a second prosecution. United States v. Monjar, 3 Cir., 147 F.2d 916, certiorari denied 324 U.S. 859, 65 S. Ct. 1191. It is more specifically urged under the same argument that the alleged overt acts committed in the State of New Jersey were not to effect the object of the conspiracy and that therefore the District Court of the District of New Jersey had no jurisdiction. Among the New Jersey overt acts charged were:

"5. That on or about June 22, 1941, at said 'Bergwald,' in the State and District of New Jersey, and within the jurisdiction of this Court, the defendants Fritz Schroeder, Theodore Koehn, Joseph Lieblein and Albert Kiesler, and the co-conspirators Alfred Schuchmann, Kurt Fraebel and Heinz Schnoedewind, attended a meeting of the Board of Directors of said defendant Vocational League and decided upon the abandonment of certain outward and notorious activities and manifestations of said Vocational League, at the same time deciding and agreeing together to continue in secrecy and in disguised form its newspaper, said 'In Retrospect' and its other propaganda activities in behalf of the foreign principals aforesaid.

"6. That on or about June 22, 1941, at said 'Bergwald,' in the State and District of New Jersey and within the jurisdiction of this Court, the defendants Fritz Schroeder, Theodore Koehn, Joseph Lieblein and Albert Kiesler, and the co-conspirators Alfred Schuchmann, Kurt Fraebel and Heinz Schnoedewind agreed together and with each other that said Vocational League would send a certain letter to its members."

Over act No. 5 on its face shows a furthering of the conspiracy. The letter decided upon in overt act No. 6 is in evidence as are letters following it and testimony regarding it.A deliberate attempt to represent the D.A.B. as a loyal American organization and so avoid registering it as an agency of foreign principals could be inferred from those items. As was said in Rumely v. United States, 2 Cir., 293 F. 532 at page 550, certiorari denied 263 U.S. 713, 44 S. Ct. 38, 68 L. Ed. 520: "An overt act is one which manifests the intention of the doer to commit the offense." In Kaplan v. United States, 7 F.2d 594, also a Second Circuit decision, the defendants were charged with a conspiracy to violate the Bankruptcy Act, 11 U.S.C.A. § 1 et seq., by concealing assets. The overt act in that case sustained as sufficient was a conference at the office of a lawyer preceding the incorporation of the fraudulent company. The vicinage situation presented on this appeal is quite the reverse of that which appeared in United States v. New York Great A. & P. Tea Co., 5 Cir., 137 F.2d 459. Here, the two corporate appellants were organized under the laws of the State of New York. D.A.B. had its national headquarters in New York City. D.A.B. Recreational Resort, Inc. was the owner of Camp Bergwald in New Jersey which figured largely in the indictment and trial proofs. The trial was had at Newark, N.J., within ten miles of New York City. Not only does the indictment allege facts from which it affirmatively appears that the District Court had jurisdiction, but the entire record bespeaks the reasonableness from the standpoint of the defendants, of the trial being held in the New Jersey-New York area which undoubtedly had been the focal center of the questioned activity.

It is then urged that the Government failed to prove that a contract of employment existed between the German principals, or any of them, and D.A.B. which required the latter to file a registration statement. The theory of the appellants seems to be that there was an express contract in evidence*fn3 which was the only agreement proven; that it was not the type of contract which required the agency to register under the McCormack Act; that there had to be an express contract between the agency and the foreign principal under the McCormack Act;*fn4 that the said contract, on advice of counsel, was cancelled on June 24, 1938, prior to the effective date of the McCormack Act with counsel advising that because of the cancellation there was no need for the D.A.B. to register.

We find nothing in the McCormack Act as applicable to the present facts, warranting the contention that it contemplated only agencies created by an express contract. Section (2)(c) does provide that a copy of the contract, if written, or a statement of its terms and conditions, if oral, be attached to the agent's statement, but we fail to see that such language restricted the necessity of filing a statement to propaganda agents who were admittedly such and who had express oral or written agreements containing that fact. The McCormack Act is a national safety measure adopted at the time when the United States was being forced into the then existent war. The authorities wanted to know who were the agents of foreign powers disseminating propaganda in this country. That knowledge was vitally important at the time to assist in preventing receipt by our people of unlabeled special pleading on behalf of alien governments. A fair reading of Section 612 of the Act indicates that the persons who were required to register were any agents of a foreign principal as defined by Section 611(d) of the Act which reads: "(d) The term 'agent of a foreign principal' means any person who acts or engages or agrees to act as a public-relations counsel, publicity agent, or as agent, servant, representative, or attorney for a foreign principal, and shall include any person who receives compensation from or is under the direction of a foreign principal. * * *"

If conceded possession of an express contract with a foreign principal was the all controlling requirement for registering, then the McCormack Act was rendered meaningless. The true test, we think, was whether agency in fact existed, with the term agency defined substantially as in the Restatement of Agency, Section 1, which states it to be: "The relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act."

The Government's case was not founded on the letter contract. The latter was simply part of the chain of proof which assisted in showing the connection between the German Reich and its subsidiaries with the D.A.B. The Government affirmatively alleged and its evidence tended to show that the written contract which did not allude to propaganda was not the whole agreement between the parties; further that the cancellation of that contract was a subterfuge in line with the protective colorization adopted by the defendants for the D.A.B. in order to fit in with the rapidly developing situation in this country.

On the proposition that the written contract was cancelled on the advice of an attorney so that the D.A.B. would not be forced to register, it is true as asserted by the Government, that it does not appear that the attorney was fully informed of all of the activities of the organization and it is also true that though the attorney was in Court during the trial he was not called as a witness. The appellants urge that the testimony of two Government witnesses, Volbers and Johannsen, former officers and directors of D.H.V. and its successor, D.A.B., was to the effect that the letter contract was the only agreement between their group and the German Labor Front. The Government characterizes their testimony as vague. Volbers did say a written contract had been entered into, signed by himself, Johannsen and Euting, the latter representing the German Labor Front. Johannsen did not recall any written contract being signed or that he signed any such contract. That testimony and the credibility of those two witnesses were for the jury to pass on along with the other evidence in the case. The decision in Viereck v. United States, 318 U.S. 236, 63 S. Ct. 561, 563, 87 L. Ed. 734, turned on a question not involved here and is not applicable. There the Trial Court charged a Government request, "* * * if you find that the defendant engaged in the activities set forth in the indictment, it is not necessary that you find that he engaged in such activities on behalf of his foreign principal or principals. It is sufficient if you find that he engaged in the activities, whether on behalf of his foreign principal or principals or on his own behalf." The Supreme Court held in reversing the District Court that the conviction could be sustained only if failure to disclose activities on the defendant's own behalf is a criminal offense.

The next point involves the denial of the defense motion to strike out the evidence of the Government witness Davidson who testified as to the nature of the publications circulated by the appellants. Propaganda is a subject for expert testimony. United States v. Pelley, 7 Cir., 132 F.2d 170. The question of the expert's competency was for the Trial Court, (2 Jones on Evidence, 4th Ed. 1938, § 389; 3 Wigmore, Evidence, 3d Ed. 1940, § 944) and there is no indication of any abuse of discretion. The District Judge properly left the weight of Davidson's testimony to the jury, saying in his charge: "There was expert testimony given in the course of the trial which the court allowed and it was subject to cross-examination. Simply because that testimony was allowed does not mean that it is binding on you. It is evidence which you may consider and to which you will give that degree of importance and weight which you think it merits."

It is contended by appellants that the limitation imposed by the District Court on the cross examination of the Government witness, Richards, an investigator, was error. Richards, for national security reasons, was permitted to testify under an assumed name. Cross examination as to part of his background which ante-dated by several years the period covered by his testimony, was not permitted. None of the data testified to by him at the trial was obtained by the witness during the period which was barred to cross examination. The witness was on the stand three days, two and a half of which apparently were given over to his cross examination. A study of his testimony shows that the defense very thoroughly developed the various avenues of the cross examination and that anything further would have been cumulative. We agree, of course, that cross examination is a matter of right but its proper bounds are within the sound discretion of the Trial Judge. The defendants were not unduly restricted in that regard. United States v. 3.544 Acres of Land, etc., 3 ...

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