CHANDLER v. UNITED STATES, 171 F.2d 921

MAGRUDER, Chief Judge. Douglas Chandler is under sentence of life imprisonment and a fine of $10,000, upon conviction by a jury on an indictment charging the crime of treason against the United ’ States. The charge was predicated upon defendant’s radio broadcasting activities within the German Reich during World War II as an employee of the German Radio Broadcasting Company, an agency of the German Government under the jurisdiction of the Ministry of Public Enlightenment and Propaganda. The points raised on this appeal cover a wide range.

We have been much aided by the industry and thoroughness of Government counsel and of court-appointed counsel for the defendant in their researches on the case, and by the distinguished ability with which they have marshaled their respective arguments. The case was tried with great care and patience by Judge Ford, and the record contains memoranda by him covering his more important rulings. We sustain the conviction. Factual Summaky.

The facts, as the jury were warranted in finding them, may be summarized as follows : Chandler was born in Chicago, Illinois, in 1889, and has always been a citizen of the United States. He married in this country and had two daughters born here. He tried his hand for a time at journalism and various other enterprises. In September, 1931, he and his family moved to Europe, where he remained until brought back to the United States in 1946. Prior to 1941 he lived from time to time in France, Austria, Germany, Yugoslavia, and Italy, and traveled extensively.

From 1936 to the outbreak of war he executed various commissions for the preparation of illustrated articles for an American magazine. Over the years Chandler had developed an anti-Jewish outlook, and his fierce emotions on that theme were accentuated by certain personal setbacks which he attributed to malignant Jewish interference. He came to believe, or to profess to believe, in the existence of a sinister world-wide Jewish conspiracy. Naturally he found the anti-Jewish climate of Nazi Germany congenial.

While in Germany before the war his interest was cultivated by one Hoffman, an attache in the German Press Department, serving as contact man for foreign journalists. He was favorably impressed with what he saw in Germany and came to regard the Nazi regime as the bulwark of Western civilization against what he thought to be the Jewish-Bolshevist menace. In 1940 he left Yugoslavia and came to Florence. There he conceived the idea of broadcasting his views to the United States, by way of warning against involvement in the European war.

The American Consul in Florence, who at this time was urging Americans to return to the United States, did not authorize Chandler to travel to Germany on his American passport. However, Chandler was able to get to Berlin in February, 1941, on a German Fremdenpass (alien identity card) through the intervention of the German Consul, and his family followed in another month. He volunteered his services to the Propoganda Ministry, and arrangements were made for him to prepare commentaries and record them for broadcast to the United States, on a salaried basis. His broadcasts commenced in April, 1941.

He adopted in his first broadcast,, and retained throughout, the nom de plume “Paul Revere” (though he revealed his-true identity in subsequent broadcasts). The introductory theme song to his broadcasts was “Yankee Doodle” played on a flute accompanied by the sound of galloping horses’ hoofs. After six months of this-work he took a leave of absence. Then came the Japanese attack upon Pearl Harbor.

Though he recognized that “Germany through its pact with Japan was technically forced to issue its declaration of war”, he regarded this change in the situation between Germany and the United States as only a technicality. Other Americans were repatriated from Berlin, but Chandler chose to stay. In January, or February, of 1942, he-made arrangements for the resumption of his activity as a broadcaster. He executed a contract with the “Reichs-Radio-Corp.German Short Wave Station”, which provided in

Article I that “Mr. Douglas Chandler will be employed as a commentator in the U. S. A. newsroom. His employment is necessary by the war conditions; that means, on account of the drafting of permanent employees and the additional war tasks of the radio, respectively.” [Italics added.] The stipulated compensation was 1000 Reichsmarks per month.

Though the defendant was understood to be responsible only to the German Short Wave Agency, for bookkeeping reasons he at the same time entered into two other contracts, one with the “Foreign-Language-Service-Press-Corp.”, at a salary of 750 Reichmarks per month, and another with the “Anti-Komintern” and the “Anti-Semitic Action” under which he was to receive 750 Reichmarks a month, “for the regular collaboration in the foreign-language propaganda of the Anti-Komintern, and the Anti-Semitic Action, respectively.” This aggregate compensation of 2500 marks per month made Chandler the highest paid commentator in the U.

S. A. Zone of the Short Wave Station of the German Radio Broadcasting Company. His superior, the Chief of the U. S. A. Zone, received less than half this amount: Defendant broadcast under these contracts two or three times a week uninterruptedly from February, 1942, to the end of July of that year. He then stopped for about two months following the death of his first wife, but he resumed on the same basis in October. After one of the routine conferences of the commentators, some time in February, 1943, he had a conversation with Wagner, the News Editor for the U. S. A. Zone.

Wagner expressed his lack of interest in the anti-Semitic theme and his disbelief in the authenticity of the so-called “Protocols of the Elders of Zion”. Chandler reported Wagner to the Gestapo as one whose loyalty to the Reich was suspect. Later, upon being taxed with this action by Wagner, Chandler said to Wagner: “You have been one of my best friends”, but “the interests of the whole, of the Reich, are higher than my personal feelings.” Chandler was suspended from the air in May, 1943, but at the solicitation of the Superintendent of the Short Wave Station he resumed his work in September, 1943.

For some time after that he made his recordings in Vienna and the recordings were brought to the German Short Wave transmitter outside Berlin and there re-recorded on magnetic tape for broadcasting. There was a two-month interruption in the spring of 1944, due to Chandler’s illness. In October, 1944, he moved to Durach, Bavaria, after which he made his recordings in Munich, and so continued until January or February of 1945, when he stopped for good.

Thereafter he expressed a willingness to resume but he refused to come to Berlin to make his recordings as the Superintendent of the Short Wave Station desiredi him to do. The objective of the enemy in. the operation of its short-wave broadcasts clearly appears in the record, and is indeed a matter of common knowledge.

Winkelnkemper, the Director General of the German-Reich-Radio-Corp., testified as follows: “The German foreign broadcasts were made extensively use of as a means of psychological warfare, as it was done in every country, to support the German war effort by creating disunity in other peoples by undermining the morale, by. splitting up the people in different parties, different social and radical parties, political parties, so that the land who is doing this psychological warfare may aim their war objects.

And so it was done in Germany, too, and we made an extensive use of these propaganda as a means of psychological warfare.” The head of the Propaganda Ministry, Dr. Goebbels, under the direction of Hitler, laid down the principal themes to be harped upon in the German radio propaganda in furtherance of this psychological warfare.

They were Bolshevism as No. 1 enemy to Christianity and private property; antiSemitism — the support of Bolshevism by “international Jewry”, with stress, so far as the United States was concerned, upon the supposed dominance of the Jews in government and finance, and in radio, films, and other agencies for influencing public opinion; the great achievements in the Reich in the field of social legislation as contrasted with the backwardness of the Anglo-Saxon countries; the invincible military and moral power of the Reich; and England’s economic and political decline as a world power.

Goebbels held daily conferences with his top subordinates, at which he gave his instructions as to how to handle the news and as to what points he wanted currently stressed along the line of the basic propaganda themes just mentioned. These instructions were passed on down through a series of staff conferences.. Chandler with other English-speaking broadcasters regularly attended the daily conferences held by the chief of the U. S. A.

Zone, at which the standard propaganda directives as well as the daily directives were relayed arid discussed, and instructions were given to the various commentators with reference to particular subjects. The commentators were not left in doubt as to the war mission of the Short Wave Agency. Wagner, the News Editor of the U. S. A. Zone, referring to these U. S. A. Zone conferences, testified: “We said that German propaganda during the war was to he used chiefly to create disunity among the Allies, England, America, Russia, and also to create disunity within the individual countries.

As far as the United States were concerned, in particular to build up racial controversies, to create unrest regarding the economic inequalities in the country, to work on minority problems and similar ideas, with the purpose of ultimately driving a wedge between the people and the Roosevelt Administration, and if possible to get a new election in which a government would be elected in the United States which would be against interference in European affairs, in other words, which would be isolationist in character.” Further, along the same line, he testified: “The commentators were told to use the threat of inflation, of the collapse of the dollar after the war, as a means of propaganda, all to create unrest along that line.

Similar ideas were brought up in connection with defeatist propaganda. Commentators were told to stress themes along the lines that America would never be able to win the war, that it would be much too costly, that the establishment of a Second Front would fail owing to the strength of German armies, that actually America had nothing to do in this.

European war, that America had no war aims, that the Gl did not know what he was fighting for; and such ideas that were brought up, that we should attempt to create homesickness among the American troops and defeatism in general as to the losses which they might suffer and that these losses would be for nothing.” Appellant’s manuscripts before recording and broadcasting were subject to military censorship, and to political censorship “to see to it that Mr.

Chandler’s commentaries would not run counter to the official German propaganda line, but that they would follow it in general outline.” Twelve recordings of Chandler’s Paul Revere broadcasts, made at various dates in 1942, were introduced into the evidence and played back to the jury. Woven through his talks were all the basic themes of the German propaganda line. The recordings made by him were beamed to the United States and frequently picked up at the monitoring station of the Federal Communications Commission in Silver Spring, Maryland.

To what extent his broadcasts were heard by other persons in the United States does not appear, though in one of his broadcasts he said: “I am informed that there has been a vast increase in the number of Americans who habitually dial in on the shortwave sending of Berlin Radio.” Appellant’s Apprehension in Germany and Return to the United States. An earlier treason indictment had been returned against Chandler on July 26, 1943, in the United States District Court for the District of Columbia. In May, 1945, shortly after the close of hostilities in Europe, Chandler was taken into custody by the U. S.

Army at his home in Durach, Bavaria, but he was returned to Durach, and apparently released from custody, on October 23, 1945. He was rearrested by the Army on or about March 12, 1946, at the request of the Department of Justice. On December 10, 1946, still in military custody, he was taken by plane to the United States, via Paris, the Azores, and Newfoundland. The intended destination was Washington, D. C., where the aforesaid treason indictment was outstanding against him. The plane crossed into the United States over the State of Maine.

As a result of mechanical trouble with the plane’s retractable landing gear, an unscheduled landing was made at Westover Field, Massachusetts, early in the morning of December 14, 1946. Chandler was there taken from the plane, and remained at Westover Field for about three hours, spending part of the time in the passengers’ lounge. His guards then escorted him aboard another plane in which he was flown to Washington, D. C., where he landed on the same day at Bolling Field. He was there immediately turned over to U.

S. deputy marshals who were waiting for him, and he was arraigned later in the day on the old indictment in the United States District Court for the District of Columbia. Shortly thereafter, on December 30, 1946, the present indictment was returned against Chandler in the United States District Court for the District of Massachusetts. On December 31, 1946, he was arrested m Washington, D. G, and pursuant to a warrant for his removal issued by a judge of the United States District Court for the District of Columbia, he was taken by the marshal to Massachusetts and there delivered into the custody of the U.

S. marshal for the District of Massachusetts, all in accordance with Rev.Stat. § 1014, 18 U.S. C.A. § 591. Chandler was arraigned in Boston on January 20, 1947, and pleaded not guilty. Indictment Summarized.

The indictment charged that the defendant, in various places within the German Reich, and at all times beginning on December 11, 1941, and continuing thereafter up to and including May 8, 1945, he then and there being a native-born citizen of the United States, and a person owing allegiance to the United States, in violation of said duty of allegiance, did knowingly, intentionally, and traitorously adhere to the enemies of the United States, and more particularly, to wit, the Government of the German Reich, and the German Radio Broadcasting Company and the officials and employees thereof, giving to the said enemies of the United States aid and comfort within the United States and elsewhere; that the aforesaid adherence of the defendant and the giving of aid and comfort by him to the aforesaid enemies of the United States “consisted of working as a radio speaker and commentator in the U.

S. zone of the Short Wave Station of the German Radio Broadcasting Company, a company controlled by the German Government, which work included the preparation and composition of commentaries, speeches, talks and announcements, and the recording thereof for subsequent broadcast by radio from Germany to the United States”; that these activities of the defendant “were intended to persuade citizens and residents of the United States to decline to support the United States in the conduct of said war, and to weaken and destroy confidence in the administration of the Government of the United States.” Paragraph 4 of the indictment enumerates 23 overt acts alleged to have given aid and comfort to the said enemies and which were knowingly and traitorously committed by the defendant with treasonable intent to adhere to and give aid and comfort to said enemies.

Thirteen of these overt acts were withdrawn from consideration, some by the United States and others by the district judge, so that ten were submitted to the jury as possible acts of treason.

Generally described, one of these overt acts was arranging for the making of a recording, two were speaking into a microphone in the actual recording of talks for broadcast, one was participation in a conference for improvement in the operation of the Short Wave Station, two were attendance and participation in conferences of radio commentators at which directives were received from higher authority relative to the content of broadcasts, four were participation in conferences aimed at securing the resumption or continuance of defendant’s broadcasting activities.

The offense charged was similar to that on which “Lord Haw Haw” was convicted. Rex v. Joyce, 173 L.T. 377 (1945), aff’d sub nom. Joyce v. Director of Public Prosecutions, [1946] A.C. 347. After arraignment, the court conducted a preliminary hearing to determine the mental capacity of the defendant to understand the nature of the proceedings against him and to aid rationally in the conduct of his defense, and found that he had such capacity. Various preliminary motions were made by defense counsel and disposed of by the court. The jury trial commenced on June 6, 1947, and lasted three weeks.

The Government offered the testimony of some thirty witnesses and numerous exhibits. Chandler did not testify at the trial. The testimony of the seven witnesses called on his behalf was all directed to the defense of insanity, an issue that was fully tried, submitted to the jury under appropriate instructions, and resolved against the defendant by the verdict of the jury. On this appeal no error is alleged with respect to the disposition below of the issue as to defendant’s sanity.

On June 28, 1948, the jury returned a verdict of guilty, finding specially that each and every one of the ten overt acts submitted to it was “a treasonable act committed by the defendant Chandler with an intent to betray the United States”. We shall discuss first the points of law raised by the defendant in various preliminary motions submitted to the district judge. Acts Off Treason Committed in an Enemy Country Are Punishable.

On a motion to dismiss, appellant advanced the point that the indictment failed to state facts sufficient to constitute an offense, because treason against the United States is not committed by adherence to the enemy by one residing in enemy territory.

This contention is reiterated on appeal, notwithstanding the concession in appellant’s brief “(1) that, since treason is a violation of allegiance, conduct may consistently with the law of nations be made an offense against the United States, though the acts be without its territorial jurisdiction, and (2) that the language of the constitutional definition may be broad enough to include such acts.” It is clear that under the constitutional definition of treason, Congress has power to punish treason committed abroad.

In drafting the provision with reference to treason, the framers of the Constitution had much in mind the old English Treason Act of 25 Edw.III. See Hurst, Treason in the United States: II, 58 Harvard Law Review 395 et seq. (1945). Though the Constitutional Convention undoubtedly intended to restrict the definition of treason in certain particulars, the indications are compelling that there was no intention to put a territorial limitation upon the crime as defined. The Act of 25 Edw.III had included within the definition of treason the following (as translated from the Norman French in Rex v.

Casement, L.R. [1917] 1 K.B. 98, 99n.): “ * * * or if a man do levy war against our Lord the King in his realm, or be adherent to the King’s enemies in his realm, giving to them aid and comfort in the realm, or elsewhere, and thereof be probably attainted of open deed by the people of their condition; * * * ” In Rex v. Casement, supra, it was held by the Court of Appeal that the Act of 25 Edw.III comprehended treason by a British subject committed in Germany during the first World War. Many of the authorities cited for this

interpretation antedated the Constitutional Convention. See 8 Holdsworth, History of English Law, 307, 308. Nevertheless, there was a verbal ambiguity in the English Act, which lent some plausibility to the argument that the adherence must be within the King’s realm, though the aid and comfort might be given elsewhere. Jefferson noted this, in 1778, in his proposed revision of the Virginia Criminal Code, which contained a definition of treason expressly drawn to cover foreign treasons. See Hurst, Treason in the United States, 58 Harvard Law Review 252-53 (1944).

In the Constitutional Convention, the Committee of Detail reported a draft on August 6, 1787, in which treason was defined, without any territorial limitation, as consisting “only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them.” In Committee of the Whole, Morris and Randolph proposed a substitute, reading, “that if a man do levy war agst. the U. S. within their ■territories, or be adherent to the enemies of the U.

S. within the said territories, giving them aid and comfort within their territories or elsewhere, and thereof be provably attainted of open deed by the People of his condition, he shall be adjudged guilty of Treason.” This substitute was voted down. 2 Farrand, Records of the Federal Convention, 347-48.

Article III, § 3, of the Constitution, as finally adopted, reads: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on • the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” It was therefore not by inadvertence that ■the constitutional definition contains no territorial limitation either in the phrase with respect to adherence or in the phrase with respect to the giving of aid and comfort.

We agree with the conclusion of the district judge that the words “within their territories”, “within the said territories”, and “within their territories or elsewhere” contained in the substitute proposed by Morris and Randolph, “were omitted deliberately from the final draft, and with a purpose to encompass foreign treasons”. 72 F.Supp. 234. The first Congress proceeded promptly to exercise its power on the subject of treason.

The Act of April 30, 1790, 1 Stat. 112, provided that, “if any person or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States or elsewhere, * * * such person or persons shall be adjudged guilty of treason against the United States, * * This language, without substantial change, was carried forward into Rev.Stat. § 5331 and into § 1 of the Criminal Code, 35 Stat. 1088, 18 U.S.C.A. § 1 (1946 ed.) and is now found in 18 U.S.C.A. § 2381.

In view of the striking similarity between the constitutional definition of treason, and the almost contemporaneously enacted statutory definition, the same reasons which lead to the conclusion that the constitutional provision encompasses foreign treasons also indicate that the statutory language is to be read in similar comprehensive fashion.

As in the Constitution, so in the statute, words of territorial limitation “within the United States” are omitted from the end of the phrase with reference to adhering to the enemy; and the statutory addition of the words “within the United States or elsewhere” at the end of the phrase with reference to the giving of aid and comfort is not an apt expression of intended territorial limitation but indicates, rather, quite the contrary.

The express words of the statutory definition seem to us to overcome any possible presumption against the extraterritorial application of criminal statutes; and furthermore there seems to be no such presumption with reference to a crime of this character. States denounce the crime of treason as a matter of self-preservation. It is not unlikely that a person meditating treason would take- himself beyond the territorial limits of the United States in order to perpetrate the crime with greater security to himself.

The nature of treason, therefore, is such that there is no a priori reason for supposing that the Congress would naturally be inclined to restrict the statutory definition of the crime to treason within the territorial limits of the United States. In this connection the language of Chief Justice Taft in United States v. Bowman, 1922, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149, is pertinent.

In that case a provision of the Criminal Code punishing conspiracies to defraud the United States was construed as applicable to citizens of the United States upon the high seas or in a foreign country, though the Act contained no express language as to the locus of the offense. The Court said, 260 U.S. at pages 97, 98, 43 S.Ct. at page 41: “We have in this case a question of statutory construction.

The necessary locus, when not specially defined, depends upon the purpose of Congress as evinced by the description and nature of the crime and upon the territorial limitations upon the power and jurisdiction of a government to punish crime under the law of nations. Crimes against private individuals or their property, like assaults, murder, burglary, larceny, robbery, arson, embezzlement and frauds of all kinds, which affect the peace and good order of the community, must of course be committed within the territorial jurisdiction of the government where it may properly exercise it.

If punishment of them is to be extended to include those committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard. * * * “But the same rule of

interpretation should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the government’s jurisdiction, but are enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers or agents. Some such offenses can only be committed within the territorial jurisdiction of the Government because of the local acts required to constitute them.

Others are such that to limit their locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed by citizens on,the high seas and in foreign countries as at home. In such cases, Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense.” United States v. Bowman was cited with approval in Skiriotes v.

Florida, 1941, 313 U.S. 69, 73, 74, 61 S.Ct. 924, 928, 85 L.Ed. 1193, for the proposition that “a criminal statute dealing with acts that are directly injurious to the government, and are capable of perpetration without regard to particular locality, is to be construed as applicable to citizens of the United States upon the high seas or in a foreign country, though there be no express declaration to that effect.” Congress Has by Law Directed the Place ob Trial ob Treasons Committed in a Foreign Country.

Objection to the jurisdiction of the court below was made on the asserted ground that Congress has not by law directed the place of trial of crimes committed within the territorial jurisdiction of a foreign government.

Article III, § 2, cl. 3 of the Constitution provides that all criminal trials, except in cases of impeachment, “shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” The first Congress exercised the power of directing by law the place of trial of crimes “not committed within any State”.

In § 8 of the Act of April 30, 1790, 1 Stat. 114, this language appeared: “ * * * and the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may first be brought.” That provision in itself might have seemed to be clear enough and all-inclusive. But it was a clause tacked on to a

section defining certain offenses committed “upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular State”, for which offenses the offender was to be adjudged to be “a pirate and felon”, and sentenced to death. It was undoubtedly this context of the venue clause above quoted which led Chief Justice Marshall to remark, in Ex parte Bollman, 1807, 4 Cranch 74, 135, 2 L.Ed. 554, that that provision “is understood to apply only to uffences committed on the high seas, or in any river, haven, basin or bay, not within the jurisdiction of any particular state”.

In that case, Bollman, whose release on habeas corpus was sought, had been arrested in New Orleans by General Wilkinson and brought to Washington charged with treason. New Orleans was then within the Territory of Orleans, and there was in existence a district court of said territory, established by 2 Stat. 283, 285, with jurisdiction to try the offense.

The Court held that Bollman could not be tried in the District of Columbia, because the venue clause of the Act of April 30, 1790, was meant to be applicable to those cases where “there is no court which has particular cognizance of the crime, and therefore, the place in which the criminal shall be apprehended, or, if he be apprehended where no court has exclusive jurisdiction, that to which he shall be first brought, is substituted for the place in which the offense was committed.” The above venue provision of the Act of April 30, 1790, was lifted from its special context, and after some changes in phraseology was put by itself in a separate

section of the Revised Statutes of 1874. Rev. Stat. § 730 provided: “The trial of all offenses committed upon the high seas or elsewhere, out of the jurisdiction of any particular State or district, shall be in the district where the offender is found, or into which he is first brought.” This language was carried forward into § 41 of the Judicial Code, 36 Stat. 1100, and appeared as 28 U.S.C. § 102 (1946 ed.). It has recently been transferred to the Criminal Code, 18 U.S.C.A. § 3238, with a minor change not now pertinent. Whatever might have been the correct

interpretation of the original venue clause of the Act of April 30, 1790, the subsequent version, as it has remained on the books without substantial change since Rev.Stat. § 730, ought, it seems to us, to be given its broad literal meaning.

Congress having made treason by an American citizen a criminal offense wherever committed, whether within the territorial jurisdiction of the United States, or on the high seas or within a foreign country — as we have seen above — it would indeed be a glaring casus omissus if Congress had failed to designate the district in which an offender who committed his treasonable acts abroad should be tried. There is no such gap in the law.

We cannot accept appellant’s contention that in the phrase “all offenses committed upon the high seas or elsewhere, out of the jurisdiction of any particular State or district,” the words “or elsewhere” should be construed with the preceding "words “high seas”, under the doctrine of ejusdem generis, “so as not to include places on land within the jurisdiction either of the United States or of foreign powers.” Such suggested

interpretation is contrary to the holdings in Jones v. United States, 1890, 137 U.S. 202, 11 S.Ct. 80, 34 L.Ed. 691, and United States v. Bowman, 1922, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149. See Blackmer v. United States, 1932, 284 U.S. 421, 436, 52 S.Ct. 252, 76 L.Ed. 375. In the Jones case, a murder had been committed on one of the guano islands in the Caribbean Sea, a place over which the United States had asserted jurisdiction pursuant to the Act of August 18, 1856, 11 Stat. 119, Rev.Stat. §§ 5570-5578, 48 U.S.C.A. §§ 1411-1419. The offender was “first brought” into the District of Maryland.

It was held that the United States District Court there had jurisdiction under Rev.Stat. § 730 to try the offender. 137 U.S. 211, 212, 11 S.Ct. 83, 34 L.Ed. 691. In United States v. Bowman, supra, the Court upheld the jurisdiction of the United States District Court for the Southern District of New York, under § 41 of the Judicial Code, to try an accused under an indictment charging conspiracy in Brazil to defraud the United States.

The Court said, 260 U.S. at page 102, 43 S.Ct. at page 42, 67 L.Ed. 149: “The three defendants who were found in New York were citizens of the United States and were certainly subject to such laws as it might pass to protect itself and its property. Clearly it is no offense to the dignity or right of sovereignty of Brazil to hold them for this crime against the government to which they owe allegiance.” In view of these authorities, which we regard as controlling, it is unnecessary to discuss the other citations and arguments of appellant on this particular point.

Massachusetts is the District into which the Defendant was “First Bbought”. But appellant in various appropriate motions raised the further contention: That assuming § 41 of the Judicial Code to be applicable, the District of Massachusetts was not that into which the accused was “first brought”. The circumstances under which Chandler was apprehended and brought back to the United States have been set forth earlier in this opinion.

Appellant’s argument is in the alternative, (1) that the word “brought” means “brought with intent to leave” or “brought and actually left” and does not include the case of one brought into the district for a brief pause in the course of transit through the district, and on this view Chandler was “first brought” into the District of Columbla; or (2) if, however, the word “brought” includes the case of one brought into a district by plane solely for the purpose of transit through the district, it is immaterial whether the plane lands in the district or whether its flight in the air space over the district is uninterrupted, and on this view it would follow that Chandler was “first brought” into the District of Maine.

It would indeed be unfortunate if we were compelled to hold, on such a highly technical ground, that this elaborate trial has gone for naught. The meanings of “found” (or “apprehended”, as in the earlier versions), and of “first brought”, have been before the courts in several cases. United States v. Thompson, C.C.D.Mass.1832, 28 Fed.Cas. 102, No. 16,492; United States v. Bird, D.C.D.Mass.1855, 24 Fed.Cas. 1148, No. 14, 597; United States v. Baker, C.C.S.D.N.Y. 1861, 24 Fed.Cas. 962, No. 14,501; United States v. Arwo, 1873, 19 Wall. 486, 22 L.Ed. 67; Kerr v. Shine, 9 Cir., 1905, 136 F. 61; United States v.

Townsend, D.C.S.D.N.Y.1915, 219 F. 761; Pedersen v. United States, 2 Cir., 1921, 271 F. 187. In most of these cases the court was able to give an

interpretation which would sustain the then pending criminal prosecution, as against the contention that the offense should have been prosecuted in some other district. As above pointed out, the phrase “first brought” originated in the Act of April 30, 1790, long before the days of air travel. Congress could hardly have contemplated that flight across the air space of a particular district constituted bringing the accused into the district; therefore Maine was certainly not the proper district for this trial.

In the analogous situation of transit through the territorial waters of a district, without landing, the cases say that such district is not the district into which the accused was “first brought”. Pedersen v. United States, supra; United States v. Baker, supra. See United States v. Arwo, supra. The Government makes the reasonable contention, and we so hold, that the district into which the accused is first taken under custody and landed is the district into which the accused is “first brought” within the meaning of § 41 of the Judicial Code; and this was the district of Massachusetts in the case at bar. Such an

interpretation is consistentwith all the decided cases to which our attention has been directed. It is an

interpretation which furnishes a rule of convenient application, turning on easily provable objective facts and not depending upon an inquiry into the intent of the persons who had the accused in custody. Jurisdiction of Court Below as Affected by Circumstances of Defendant’s Apprehension and Return to This Country. By a motion for discharge from custody, which was denied, defendant urged that the court below had obtained jurisdiction of his person in violation of the laws of the United States, and ought not, therefore, to exercise such jurisdiction.

As the objection is phrased, it seems to imply that a court may as a matter of discretion decline to exercise its jurisdiction in a criminal case, in like manner as a court of equity may sometimes decline to exercise its jurisdiction, as, for example, when to do so would be prejudicial to the public interest. See Burford v. Sun Oil Co., 1943, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424. So far as we are aware, no such proposition has found its place in the criminal law; and the contrary seems to have been asserted in Stamphill v.

Johnston, 9 Cir., 1943, 136 F.2d 291, 292, certiorari denied, 1943, 320 U.S. 766, 64 S.Ct. 70, 88 L.Ed. 457. But if the argument is to be taken to be an assertion of lack of lawful jurisdiction, still we think it is without merit. As a preliminary matter it may be pointed out that there was no irregularity in the immediate proceedings by which Chandler was brought before the court below to answer the indictment pending against him.

Chandler was arrested in Washington by the U.S. marshal for the District of Columbia under authority of a capias issued out of the District Court of the United States for the District of Massachusetts on December 30, 1946. He was brought to Boston pursuant to a warrant for his removal issued in regular course under the authority of Rev.Stat. § 1014, 18 U.S.C. § 591 (1946 et.).

Appellant’s argument on this branch of the case makes the 'doubtful assumption, which we do not stop to examine, that these immediate proceedings, though otherwise lawful, may be found to be infected with illegality as a result of a more remote inquiry into the circumstances under which Chandler was brought to Washington, D.C., prior to his arrest under the present indictment. Cf. United States v. Unverzagt, D.C.W.D.Wash.1924, 299 F. 1015, affirmed 9 Cir., 1925, 5 F.2d 492, certiorari denied, 1925, 269 U.S. 566, 46 S.Ct. 24, 70 L.Ed. 415.

The district court denied the motion for discharge from custody on the authority of Pettibone v. Nichols, 1906, 203 U.S. 192, 27 S.Ct. 111, 51 L.Ed. 148, 7 Ann.Cas. 1047; In re Johnson, 1897, 167 U.S. 120, 17 S.Ct. 735, 42 L.Ed. 103; Cook v. Hart, 1892, 146 U.S. 183, 13 S.Ct. 40, 36 L.Ed. 934; Mahon v. Justice, 1888, 127 U.S. 700, 8 S.Ct. 1204, 32 L.Ed. 283; Ker v. Illinois, 1886, 119 U. S. 436, 7 S.Ct. 225, 30 L.Ed. 421; McMahan v. Hunter, 10 Cir., 1945, 150 F.2d 498, certiorari denied, 1946, 326 U.S. 783, 66 S.Ct. 332, 90 L.Ed. 475; United States ex rel. Voight v. Toombs, 5 Cir., 1933, 67 F.2d 744; Whitney v.

Zerbst, 10 Cir., 1933, 62 F.2d 970; United States v. Unverzagt, D.C.W.D.Wash.1924, 299 F. 1015, affirmed 9 Cir., 1925, 5 F.2d 492, certiorari denied, 1925, 269 U.S. 566, 46 S.Ct. 24, 70 L.Ed. 415; Ex parte Lamar, 2 Cir., 1921, 274 F. 160, affirmed 1923, 260 U.S. 711, 43 S.Ct. 251, 67 L.Ed. 476.

Appellant concedes that the foregoing cases establish the rule that a court “should not refuse to exercise jurisdiction over the person of a fugitive from justice merely because he has been brought within the territorial jurisdiction of the Court by illegal means”; but argues that that rule “covers only cases where an accused might lawfully have been brought within the jurisdiction for trial, though in fact brought there irregularly”, and “does not comprehend a case where to bring the accused into the jurisdiction against his will is a violation of the law of the forum.” We find no such distinction laid down or suggested in the cases cited.

In re Johnson, 1897, 167 U.S. 120, at page 125, 17 S.Ct. 735, 42 L.Ed. 103, supra, the Court upheld the jurisdiction of the United States Court for the Southern District of the Indian Territory to try an accused under an indictment for rape, though it was assumed that the United States Commissioner for the Southern District of the Indian Territory exceeded his authority in issuing, and the marshal in executing within the Territory, a warrant of arrest — which must have been a violation of the law of the forum.

Furthermore, there are cases upholding the power of a district court to try an accused who has been brought before it in violation of the procedure laid down by Congress for the removal from one federal district to another of a person charged with crime. Ex parte Lamar, 2 Cir., 1921, 274 F. 160, affirmed 1923, 260 U.S. 711, 43 S.Ct. 251, 67 L.Ed. 476; United States ex rel. Voight v. Toombs, 5 Cir., 1933, 67 F.2d 744; Sheehan v. Huff, 1944, 78 App.D.C. 391, 142 F.2d 81; Robinson v. United States, 6 Cir., 1944, 144 F.2d 392, 396.

In all these cases the presence of the accused within the district would seem to have been obtained contrary to the law of the forum, for the Act of Congress prescribing the procedure for removal is the law of the land and the law within each district. In addition to the foregoing, the argument fails anyway, because Chandler was not brought into the district of Massachusetts in violation of the law of the forum.

It is said that the manner in which the court below acquired jurisdiction of the defendant violated the law of the forum in three particulars, that is to say, (1) it violated the terms of the extradition treaty between the United States and Germany; (2) apart from treaty, it violated the right of asylum guaranteed by international law to political offenders; and (3) it violated the Act of June 18, 1878, 20 Stat. 152, 10 U.S.C.A. § 15, prohibiting the use of the Army of the United States as a posse comitatus.

The argument based upon the terms of the extradition treaty of July 12, 1930, between the United States and Germany, 47 Stat. 1862, assumes that the treaty was not abrogated or suspended by the outbreak of war ¡between the contracting parties. But see Karnuth v. United States ex rel. Albro, 1929, 279 U.S. 231, 49 S.Ct. 274, 73 L.Ed. 677; Techt v. Hughes, 1920, 229 N.Y. 222, 241, 128 N.E. 185, 11 A.L.R. 166, certiorari denied, 1920, 254 U.S. 643, 41 S.Ct. 14, 65 L.Ed. 454; 2 Hyde, International Law (2d Rev.Ed.1947) § 550.

It also assumes that the treaty conferred a private right upon Chandler which he might assert in a court of the United States in bar of trial. But see Ker v. Illinois, 1886, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421. Passing these difficulties with the argument, the treaty on its face has no application to the abnormal situation here presented.

Article I contains a mutual undertaking of the parties to deliver up on requisition “any person, who may be charged with, or may have been convicted of, any of the crimes or offenses specified in

Article III of the present Treaty committed within the territorial jurisdiction of one of the High Contracting Parties, and who shall be found within the territories of the other”. This and other sections make it clear that the treaty applies only to fugitives who, unlike appellant, have fled the country where the crime was committed. Furthermore, treason is not one of the offenses enumerated in

Article III;-and

Article IV specifically provides that the terms of the treaty “shall not import a claim of extradition for any crime or offense of a political character, nor for acts connected with such crimes or offenses.” To establish that the treaty has been violated here, appellant would have to show from the language of the treaty that the United States thereunder assumed a contractual obligation as follows: that if a citizen of the United States should betake himself to Germany upon the eve of the outbreak of war between the United States and Germany, and if after war is declared between the two countries the American citizen should commit in Germany acts of treason against the United States, and if the armed forces of the United States and those of its Allies should invade and occupy Germany, supplant the defunct Government of the German Reich, and assume the powers of sovereignty, then, in such event, the United States contracts that it will not apprehend such traitor and bring him to trial for treason.

Putting the proposition in this naked form, its absurdity is manifest. The United States made no such contract in the extradition treaty. Nor was Chandler’s arrest in Germany a violation of any “right of asylum” conferred by international law. In the absence of treaty a State may, without violating any recognized international obligation, decline to surrender to a demanding State a fugitive offender against the laws of the latter. United States v. Rauscher, 1886, 119 U.S. 407, 411, 412, 7 S.Ct. 234, 30 L.Ed. 425.

Particularly as regards fugitive political offenders — including, presumably, persons charged with treason, Ex parte Commonwealth of Kentucky v. Dennison, 1868, 24 How. 66, 16 L.Ed. 717 — it has long been the general practice of States to give asylum. But the right is that of the State voluntarily to offer asylum, not that of the fugitive to insist upon it.

An asylum State might, for reasons of policy, surrender a fugitive political offender — for example, a State might choose to turn over to a wartime ally a traitor who had given aid and comfort to their common enemy — in such a case we think that the accused would have no immunity from prosecution in the courts of the demanding State, and we know of no authority indicating the contrary. Cf. Ker v. Illinois, 1886, 119 U.S. 436, 442, 7 S.Ct. 225, 30 L.Ed. 421; United States v. Insull, D.C.N.D.Ill.1934, 8 F.Supp. 310, 313.

One can appreciate the considerations which ordinarily would make a State reluctant to give affirmative assistance to a sister State in the apprehension and prosecution of a fugitive charged with a political offense. But these considerations are inapplicable to the wronged State, which naturally would have no qualm or scruple against bringing a fugitive traitor to trial if it could lay hands on him without breaking faith with the asylum State. The qualification on the proposition just stated is illustrated in United States v.

Rauscher, 1886, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425, where the Court held that, under the terms of the extradition treaty between the United States and England, as implemented by Rev.Stat. § 5275 [now 18 U.S.C.A. § 3192], a person who had been extradited to this country for trial upon a particular offense could not thereafter be arrested and brought to trial for a different offense until he had a reasonable opportunity to return to the country of asylum. See comment on the Rauscher case in Lascelles v. Georgia, 1893, 148 U.S. 537, 542, 543, 545, 13 S.Ct. 687, 37 L.Ed. 549. See also Innes v.

Tobin, 1916, 240 U.S. 127, 132, 133, 36 S.Ct. 290, 60 L.Ed. 562. In the case at bar, however, the situation does not remotely resemble that in the Rauscher case, for here Chandler was not taken into custody and returned to the United States pursuant to the extradition treaty between the United States and Germany. His arrest by our occupying forces was wholly outside the treaty, and not in violation of any international undertaking either expressed or implied in the treaty.

We need refer only briefly to the argument based upon alleged violation of a provision of the Act of June 18, 1878, 20 Stat. 152, which, in its present form, reads as follows, 10 U.S.C.A. § 15: “It shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; and any person willfully violating the provisions of this

section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding $10,000 or imprisonment not exceeding two years or by both such fine and imprisonment. Provided, This

section shall not be construed to apply to the District of Alaska.” The foregoing was originally a

section inserted into an Army Appropriation Act as a backwash of the Reconstruction period following the Civil War. Its legislative history, as set forth in Lieber, The Use of the Army in Aid of the Civil Power, indicates that the immediate objective of the legislation was to put an end to the use of federal troops to police state elections in the ex-Confederate states where the civil power had been reestablished.

In contrast to the criminal statute denouncing the crime of treason, this is the type of criminal statute which is properly presumed to have no extraterritorial application in the absence of statutory language indicating a contrary intent. See the quotation from United States v. Bowman, supra. Particularly, it would be unwarranted to assume that such a statute was intended to be applicable to occupied enemy territory, where the military power is in control and Congress has not set up a civil regime. Cf. Ex parte Milligan, 1866, 4 Wall. 2, 141, 142, 18 L.Ed. 281; MacLeod v.

United States, 1913, 229 U.S. 416, 33 S.Ct. 955, 57 L.Ed. 1260; Hirabayashi v. United States, 1943, 320 U.S. 81, 93, 63 S.Ct. 1375, 87 L.Ed. 1774. The turning up of this obscure and all-but-fbrgotten statute is a credit to the industry of counsel; but'we know perfectly well that if the members of the Armed Forces who took Chandler into custody were prosecuted for a criminal offense under 10 U.S.C. A. § 15, such prosecution would surely fail.

Counsel for appellant have not suggested any alternative procedure which in their view properly could have been employed to bring Chandler to trial; in fact, all their arguments involve the conclusion, which we deem unacceptable, that there was no way in which a court of the United States could obtain lawful jurisdiction over Chandler unless he should choose to relinquish his asylum in Germany and voluntarily return to the United States. The Indictment Was Not Bad dob Duplicity. The district court committed no error in denying a motion to dismiss the indictment on the ground that its single count was duplicitous.

See Ford v. United States, 1927, 273 U.S. 593, 602, 47 S.Ct. 531, 71 L.Ed. 793; Crain v. United States, 1896, 162 U.S. 625, 636, 16 S.Ct. 952, 40 L.Ed. 1097; Jacobsen v. United States, 7 Cir., 1921, 272 F. 399, 401, certiorari denied, 1921, 256 U.S. 703, 41 S.Ct. 625, 65 L. Ed. 1179. An indictment in similar form was upheld in Stephan v. United States, 6 Cir., 1943, 133 F.2d 87, certiorari denied, 1943, 318 U.S. 781, 63 S.Ct. 858, 87 L.Ed. 1148.

No doubt it is possible to commit several distinct offenses of treason, by unrelated acts of giving aid and comfort to the enemy, each with the requisite treasonable intent.

But the present indictment, as the Government points out, “charges a single treasonable enterprise, namely, adehering to the enemies of the United States by working as a radio speaker and commentator for the German Radio Broadcasting Company, and the ten overt acts submitted to the jury were simply ten separate acts of appellant in furtherance of his treason which show that he gave aid and comfort to the enemy.'” Acquittal or conviction under the present indictment would, we think, clearly be a bar to a prosecution of Chandler on another indictment setting forth the same treasonable enterprise. and varied merely by the allegation of a different overt act in connection with Chandler’s employment by the German Radio Broadcasting Company.

Furthermore, even if the various alleged overt acts should technically each have been set forth in a separate count, we fail to perceive how appellant’s “substantial rights” could have been prejudicially affected where, as here, the overt acts were all included in a single count, but the jury were required to make separate special findings as to each overt act. Rule 52(a), Federal Rules of Criminal Procedure, 18 U.S.C.A.

Appellant suggests that the form of the indictment tended to convey to the jury the erroneous notion that the crime of treason consists of a state of mind manifested by acts; and that if the Government had been required to state each overt act in a separate count, it would have been clear to the jury that treason consists of overt acts of giving aid and comfort to the enemy with a specific intent to betray.

The suggestion of confusion on this score seems to us fanciful, for the trial judge gave extended and explicit instructions to the jury as to the function of the overt act in a treason prosecution, quoting from the opinion in Cramer v. United States, 1945, 325 U.S. 1, 65 S.Ct. 918, 89 L.Ed. 1441. In one of his broadcasts, in 1942, he referred to this nom de plume as his “nom de guerre”. 1948 Criminal Code, 18 U.S.C.A. § 3041.

The Sixth Amendment providing that in all criminal prosecutions the accused shall.enjoy the right to a speedy and public trial “by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law”, has no present relevance, for “that amendment has reference only to offences against the United States committed within a State”. Cook v. United States, 1891, 138 U.S. 157, 181, 11 S.Ct. 268, 274, 34 L.Ed. 906. War Department, Document No. 64, Office of the Judge-Advocate General, Government Printing Office, 1898.