United States v. Fiswick , 153 F.2d 176 ( 1945 )

McLaughlin, circuit judge.

Thirty-one persons of German nativity were indicted in the District Court of the United States for the District of New Jersey on September 13, 1944. Six entered pleas of guilty. There was a dismissal as to one, a severance as to fourteen, a trial as to ten, an acquittal as to three, a mistrial as to four and a conviction as to the three who have appealed.

The indictment alleged that during the summer of 1941, and for five years immediately preceding, Friedhelm Draeger was the German Consul in the City of New York and Kreisleiter, or leader, of the overseas portion of the National Sozialis-tische Deutsche Arbeiterpartei, hereinafter referred to as the Nazi Party, in the United States; that during the same period Hans Vogel was secretary to Draeger; and that the said * Consul and secretary were engaged in matters concerning the operation of the Nazi Party and its members and activities in the United States; that each defendant was a German National and a member of and affiliated with the Nazi Party; that the Alien Registration Act of 1940, Title 8, U.S.C.A. § 452 et seq., and the regulations issued thereunder, required each of the defendants to register and to furnish information, among other things, as to the existence, kind and extent of his membership in the Nazi Party to the end that the United States, in the exercise of its governmental functions, might have accurate and complete information during the national emergency; that the defendants conspired illegally with Draeger and Vogel and with each other and with others to the grand jurors unknown, to defraud the Government of the United States by denying, falsifying, concealing, misrepresenting, etc., membership in such Nazi Party so as to defraud, hamper, impede, impair, frustrate and obstruct the United States in obtaining accurate information as to their membership and activities in, their affiliations with, and the activities of the Nazi Party, its clubs, organizations, functions and activities in the United States; that Friedhelm Drae-ger, Hans Vogel, the German Ambassador, members of his staff, and others to the .grand jurors unknown, would advise, counsel, instruct, command and direct the defendants and others similarly situated to deny, deceive and misguide the United States in reference to their membership or affiliation in said Nazi Party in filling out the form required of each of them under the regulations pursuant to the Alien Registration Act of 1940; that it was part of the conspiracy that these defendants and other members and affiliates of the said Nazi Party within the United States, would continue after the Fall and early Winter of 1940, and from day to day thereafter to the date of the bringing in of the indictment, to deny, falsify, deceive and misrepresent to the United States their agencies, departments and bureaus, the material facts relating to the existing kind and extent of their membership and activities in, affiliation with, and the existence and activities and functions of the said Nazi Party within the United States, to the end that the denials, concealments, falsifications, misrepresentations, suppressions and equivocations made in connection with the above referred to Alien Registration Act of 1940 would continue thereafter to the detriment and failure of the United States and their agencies, departments and bureaus, to ascertain fully, fairly and accurately during a National emergency, information relating to the membership, policy and activities of these defendants and others in the Nazi Party in the United States, and for the furtherance of the political activities, public relations, public policy of the Government of the Third German Reich, all of which information in said form under said Act of Congress was vital to the internal security of the United States; that the defendants would appear before proper alien registration officers and authorities for the purpose of registration, and in such registration would falsely and fraudulently omit to disclose and truly state their membership in, and connection and affiliation with, the clubs, societies, organizations and activities of, the Nazi Party within the United States; and numerous overt acts were set forth and alleged to have been committed in pursuance of, and in order to effect the objects of, said conspiracy. Defendants were not indicated for the substantive offense of false registration as was done in the case of United States v. Heine, 2 Cir., 149 F.2d 485.

There was testimony for the Government by Miss Lilly Illian, an employee of the German Consulate from March, 1939, until May, 1941, that Dr. Draeger, the Consul, was Kreisleiter, or leader, of the Nazi Party in New York; that Hans Vogel was secretary to the Consul; and that a part of her duties was taking dues of the members of the Nazi Party and taking care of correspondence pertaining to it; that Vogel dictated to her generally and that occasionally so did Dr. Draeger; that applications for membership in the Party were taken at the German Consulate and thereafter transmitted to Germany with a report by the Consul; that records were kept at the Consulate pertaining to members of the Party and application for membership therein; that the total amount of initiation fees, etc., was $15.50; that there were also dues of $1.00 per month; that the final acceptance of an application for membership had to come from Germany, but applicants for membership received a card and members received a book in which stamps could be placed showing payment of dues; that meetings and activities were held either in the Consulate or under its auspices; that a list had been made up from the file cards which were once kept in the Consulate but later destroyed; that Vogel advised her the file cards had been burned in the early part of 1940; that witness could not identify either one of the three convicted appellants but three names identical with those of the three defendants were on the list of Party members; that after the registration of aliens in the United States was required, the Consulate, either through Dr. Draeger or Hans Vogel or herself, gave instructions to the members as to the wording that should be used in filling out the registration statement; that the members were first instructed by Dr. Draeger to deny membership and not to put the fact that they were members of the National Socialist Party in the registration questionnaire ; that they were later advised to send an amendment of their answers to the State Department wherein they should state that they were non-resident members of the Nazi Party; that some of the defendants were instructed to state in their questionnaires that they were members of the Reichsdeutsche Vereinigung. All three of the appealing defendants, acting on such advice, in answering their questionnaires denied that they ever had, within five years, belonged to or been affiliated with, or an active member of, any organization devoted to political activities, public relations, or public policies of a foreign government, with the exception of defendant Jacob L. Mayer, who, on such advice, stated that he was a member of the Reichsdeutsche Ve-reinigung. (He later admitted that he had never heard of that organization before and that he had been advised by the Consul to say that it was a welfare organization.)

There was testimony by Gustave Gauer-ke, an employee of the Consulate, which corroborated a part of the testimony of Miss Illian. Emil Wilhelm Borchers, a defendant, also testified that he was a member of the Nazi Party and that Vogel advised him, and three others who were with him at the Consulate, that when a member of the Nazi Party registered he should not state that the Party was organized, nor that he was a member thereof, and that he should turn in his Nazi membership book or card to the Consulate; that he did this; that he had attended functions at which Dr. ■Draeger and Hans Vogel were present, at which Dr. Draeger began the exercises with the “Heil Hitler” greeting and the Hitler salute. Witness Albert J. Komecki testified as to certain activities of the 'German-American Festival Committee, which were under the supervision of the Consulate.

The Government next introduced as a witness Mr. Bell of the F. B. I., who testified, over objections, as to conversations he had had with the defendant Mayer on the 22nd and 23rd of November, 1943, wherein certain admissions were made by that defendant. In the first interview Mayer denied, according to the witness, that he was a member of the Nazi Party, but on the succeeding day Mayer admitted that he was a member and that he had been advised by the Consul to deny membership when filling out the registration statement and to state that he was a member of the Reichs-deutsche Vereinigung. A statement by Mayer to the same effect, as his oral testimony was received into evidence.

Other,F. B. I. agents later testified as to conversations with and written statements by the defendants, Fiswiclc and Rudolph, which latter also went into evidence. Fiswiclc on April 29, 1944, in talking with Lhe particular F. B. I. representative, stated to that person that he had told an Enemy Alien Hearing Board at Newark, New Jersey on January 7, 1944, that he was not a member of, or a prospective member of, the Nazi Party in the United States. He stated that he had also been interviewed by agents of the Newark office of the F. B. I. and had told them that he was not a member of, or a prospective member of, the Nazi Party. He also told the agent then questioning him, in the beginning of the interview, that he was not a member of, or a prospective member of, the Nazi Party. It was following that, according to the agent, that Fiswiclc said he desired to tell the truth and would feel a lot better if he got the thing off his mind and then proceeded to tell everything that is contained in the signed statement. The s:gned statement sets out that Fiswiclc joined the Nazi Party in 1933 filling out the application in the presence of Hans Vogel, that he recognized Adolph Hitler as the leader of the German Reich and agreed to obey the laws of the German Reich. It goes on to say that in 1940 Vogel told him and four others it was not necessary to state on the registration form that they were members of the Nazi Party and that he followed those instructions. It then reads that in April or May of 1941 he attended a Nazi meeting at the New York German Consulate at which the Consul advised that the Consulate was closing and that war was possibly coming and that all the members should obey the laws of the United States and. that they should destroy their membership cards; Fiswiclc destroyed his prospective member’s card; he also burned his last German passport as it showed that he had registered with the German Consulate for military service in 1939.

The defendant, Rudolph, at the trial below repudiated a statement which he had given on November 17, 1943, wherein he admitted that he had been advised by a German Consular official to state on his registration card that he was not a member of the Nazi Party and if anything happened to deny membership in that Party with other matters in the statement more or less supporting the indictment.

As stated the question of the admission of the above referred to conversations and statements into evidence first arose in connection with Mayer’s statements, oral-and written. The District Judge at the time held there was sufficient evidence for the jury to consider in order to infer the existence of a conspiracy. He said further: “I cannot find myself and the Government would not wish me to find as a matter [o/] fact that the Government has proven the existence of a conspiracy because I would then be assuming the functions of the jury. (Emphasis ours) The statements were at first admitted only as to the individual defendants making them. While of no prime importance in view of what happened later, Fiswick at least seems to have consented to this, with his attorney saying at page 190a of the record: “And of course I am consenting to the admission of these statements only as to the individual defendants, if the court please, whom they may affect.”

Later, on the motions for dismissal, the Court allowed the statements in evidence generally against all the defendants on the Government’s theory of continuing conspiracy.¹

In his charge the Court said regarding this:

“There have been admitted into evidence certain statements, written statements and verbal admissions made by conspirators, of activities done in furtherance of the object of the conspiracy; and these admissions and statements are admissible against all of the co-conspirators if made during the continuance of the conspiracy and dtiring their participation in it. I have ruled that this is a continuing conspiracy, and with the exception of one defendant, to whom I shall advert later, I have ruled that all of the admissions and all of the statements are properly evidential against all of the defendants; and these admissions and statements were not allowed for the purpose of proving the conspiracy itself, but simply to prove acts and course of conduct which would be chargeable to the other co-conspirators, because done, or if done, done in furtherance of the object of the conspiracy.” (Emphasis ours)

Before coming to the main question it might be well to dispose of another situation arising from the same part of the charge above quoted. The trial was rather long drawn out. It was hard fought by both the attorney for the Government and those for the defendants. A careful read-" ing of the record and of the briefs shows that the Court’s reason for letting the statements generally into evidence was thoroughly understood by defense counsel. What they objected to and now stress as error was the Court’s holding that whether there was a conspiracy and if so, whether it continued as charged, were jury questions. It is urged that there was no proof of the conspiracy and even assuming that there was, that there was no proof of a continuing conspiracy. The appellants say that at most there was evidence of a concluded conspiracy with a continuing result. It is that problem which presents the real issue. Therefore while the portion of the charge quoted standing alone might create the impression that the Court gave the jury as a fact the continuance of the conspiracy and so took the latter’s existence for granted, it does not so develop when the entire circumstances are examined. The Trial Judge clarified the language later to the expressed satisfaction of the jury when he said:

“Here is what I said, that the acts or admissions of each of the co-conspirators are admissible as evidence against all of the other co-conspirators provided you find that there mas a conspiracy and that they •mere all in it. Of course if you find that any particular individual defendant was not in this common agreement that the indictment alleges existed, then he would be immediately out of the situation. Does that clarify it?

“The Foreman: Quite clear.” (Emphasis ours)

Further indication that the jury understood they had to first pass upon the question of whether there was a conspiracy is shown by the language of the foreman addressing the Court on request for instructions where he said:

“The Foreman: A question came up, your Honor on that. We are all well aware that Dr. Draeger and. Hans Vogel and Zeg-lin are mentioned in the indictment as conspirators, amd if we find a conspiracy existed we would then conclude that at least¹ those three were in it in the beginning.” (Emphasis ours)

The meticulous differentiation in the verdicts itself points to the jury’s proper grasp of the scope of their inquiry. That the attorneys for the defendants had a correct appreciation of the Court’s position is shown (a) by no exception to that part of the charge; (b) in their brief (bottom of page 31) interpreting the particular language of the Court, they say:

“However, in this case the Court went much further and held that there was proof that a conspiracy existed and continued down to the time of the filing of the indictment * * *.” . (Emphasis ours)

As seen, their quarrel with the Judge is that he held there was proof of a conspiracy and of its continued existence. The appellants do not pretend that the Court at any time meant to imply that the continuance of the conspiracy and therefore the conspiracy itself had to be assumed by the jury, (c)- The above quotation from the charge is made the subject of appellants’ Point IV. As stated, no exception was taken to this. It is included, however, on the theory that it comes within the first exception which reads r “I take exception on behalf of all defendants to that portion of your Honor’s charge with respect to the admission in evidence of the statements of the defendants and their binding effect upon the other defendants.” The argument urged is illuminative as to what the language meant to the defense. It reads:

“The foregoing, it will be observed, is an instruction to the jury as to what effect the statements or admissions of the defendants may have upon the minds of the jury in its deliberations amd in determining whether or not there zoos a conspiracy, whether or not it was a continuing one amd whether or not any of the defendants had any part in it.

“For the reasons which we have heretofore set forth in other points we submit that this part of the Court’s charge was prejudicial error.” (Emphasis ours)

In other words, as the case finally went to the jury it seems conceded, certainly from the record it is what happened, that the Court left to the jury the questions, of whether there was a conspiracy and if so, whether such conspiracy continued.

The dates of the talks with Mayer and of his statements were November 22 and 23, 1943; those as to Fiswick were April 29, May 19 and May 26, all in 1944; and as to Rudolph they were November 17, 1943, and September 5, 1944. The indictment was filed September 13, 1944. Mayer, the last defendant to register, did so on December 23, 1940. It is argued that the last overt act took place when Mayer registered and that the conversations with the defendants and the giving of their statements occurred years after the conspiracy must have ended. This completely overlooks not only the theory of the Government’s case but the plain language of the indictment. The scheme did not end with false registration. The latter was essential but to accomplish the end result the concealment of Nazi membership had to be affirmatively maintained thereafter. A continuing conspiracy was specifically charged with the proof presented by the Government making it a jury question whether there was such a conspiracy. It is true that the evidence was all pretty much circumstantial but if it believed, it presented a pattern of deliberate and important hostile fraud on the United States. The three sets of admissions are part of this. In the Mayer episode on November 22, 1943, he denied he was a member of the Nazi Party. The next day he admitted he was such a member together with other details which fitted in with the indictment. In other words, Mayer as late as November 22, 1943, in denying his Nazi membership, did something which could have been believed by the jury to have been an overt act in the alleged continuing conspiracy and which was some evidence that he was still following the plan and furthering the conspiracy. The same applies to Fiswick who on April 29, 1944, denied his Nazi Party membership and later in the same interview admitted it and then revealed the method used as to registration. The reverse of the medal is presented with Rudolph. The jury could have concluded that he persisted in actively maintaining the conspiracy down to the extent of testifying at the trial that he had never received or followed registration instruction and so denying an earlier admission. . If accepted by the jury, and the verdicts indicate that it was, the above referred to evidence of the appellants is some proof of specific overt acts in furtherance of the plan conceived and partially executed in 1940.

There is no dispute as to the governing law. It is stated in United States v. Kis-sel, 218 U.S. 601, at page 607, 31 S.Ct. 124, at page 126, 54 L.Ed. 1168:

“But when the plot contemplates bringing to pass a continuous result that will not continue without the continuous co-operation of the conspirators to keep it up, and there is such continuous co-operation, it is a perversion of natural thought and of natural language to call such continuous co-operation a cinematographic series of distinct conspiracies, rather than to call it a single one.”

This has been followed in Brown v. Elliott, 225 U.S. 392, 32 S.Ct. 812, 56 L.Ed. 1136; Culp v. United States, 8 Cir., 131 F. 2d 93; Lonabaugh v. United States, 8 Cir., 179 F. 476; Breese v. United States, 4 Cir., 203 F. 824; Shaw v. United States, 5 Cir., 41 F.2d 26; Eldredge v. United States, 10 Cir., 62 F.2d 449. The converse of the above rule is just as strongly supported by those opinions, namely, that a continuing result of itself does not change the conspiracy into a continuing one. It is the nature of the agreement rather than the acts of the parties that determines if the conspiracy is a continuing • one. The instant indictment charges a continuing agreement between the conspirators from prior to 1940 down to the date of the indictment. That was the foundation of the indictment and of the Government’s evidence. It was on that theory that the statements by and the • conversations with the defendants were allowed.

Several other reasons are suggested for barring the conversations and statements. There is nothing in the record arising from the fact that the defendants were in the custody of the F. B. I. at the time which justifies attack on the admissibility of the evidence because of that circumstance. Of course, if the conspiracy had been abandoned prior to the conversations and statements, the latter would have been inadmissible generally but as shown both the conversations and statements pointed to the then present existence of the conspiracy. Nor do we think that it can be maintained that the conversations and statements must be in destruction of the conspiracy. That might be one conclusion but the jury could also have inferred that as late as the trial Rudolph by denying his earlier statement, was still affirmatively aiding the scheme set out in the indictment. The same thought applies to Mayer down to November 22, 1943, and to Fiswick until April 29, 1944. The conversation of Mayer with the F. B. I. and his statement, should be examined together. The same course is to be taken with the conversation of Fiswick and his statements and with Rudolph’s statement and his testimony at the trial. When this is done all three groups can be reasonably interpreted to imply deliberate concealment of Nazi Party membership down to the mentioned dates. It is not difficult to accept the so-called confessions as part of the acts which furthered the conspiracy when it is remembered that as to Mayer and Fiswick, their confessions coupled with the immediately preceding denials and as to Rudolph, his trial repudiation of his confession all give some indication at least that there has been a continuing affirmative fraud on the United States.

If we are correct that the conversations with and the statements by the defendants, including Rudolph’s testimony, are evidence of the continued functioning of the plan of not disclosing information and of giving false information, then there is no difficulty with respect to the statute of limitations. The jury by its verdict obviously believed as they were entitled to that they were dealing with a crime which continued right into the trial itself and therefore cases such as United States v. Irvine, 98 U.S. 450, 25 L.Ed. 193 and Meyer v. United States, 9 Cir., 220 F. 800 do not apply. Compare United States v. Alfano, 3 Cir., 152 F.2d 395.

Discussion of continuing conspiracy necessarily includes the basic question of conspiracy as charged in the indictment and as to the latter the same lack of direct testimony exists particularly with reference to conspiracy between the defendants. We agree that the Government’s obviously difficult burden is no excuse for lack of proof. However, under the evidence and the legitimate inferences therefrom clearly the conspiracy issue was also for the jury.

An exhaustive examination of the record reveals that the District Judge and the jury were careful in seeing to it that the defendants were given a fair trial. There was no final confusion or misunderstanding by the jury or by defense counsel with respect to the law of the case as pronounced by the Court. We find no error of any substance.

Affirmed.

1 The Court said as to this, page 205a of the record:

“The Court: Now, in order that there may be no mistake, a question has arisen which I conceive to be novel, as to whether or not there is a continuing conspiracy without a positive act; I am ruling that the conspiracy continued to the date of the return of the indictment, because I hold it a plot contemplating bringing to pass a continuing result which could not continue without the continuous cooperation of the conspirators to keep it up, and that there is such continuous cooperation. That has been the determination of the Supreme Court where there was an act of commission; I am now extending it to a situation whereby cooperation may be indicated by failure to do some act to indicate a desire to bring to an end the continuing situation effected by the act previously done. Under that ruling, and in order that there may be no further mistake, I shall rule that all the statements which were made by each of the defendants, although they were made after 1940, will be admissible against each of the other alleged co-conspirators.” (Emphasis is ours.)