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December 15, 1949


The opinion of the court was delivered by: HOLTZOFF

The defendant has been convicted of treason and moves for a new trial.

On December 11, 1941, when war was declared between the United States and Germany, the defendant was a member of the staff of the American Embassy in Berlin. The entire personnel, with the exception of the defendant, immediately left the German capital and was interned. The defendant voluntarily stayed behind. In February, 1942, he accepted employment from the German Broadcasting Company, which was controlled by the German Government. A clandestine short-wave radio station was established by the company in Berlin, for the purpose of broadcasting propaganda to the United States. The station was given the name 'Station Debunk', and purported to operate somewhere in the Middle West. The defendant was employed as commentator and speaker on these broadcasts. He prepared the manuscripts containing pro-German propaganda, and made recordings of this material, which was broadcast to the United States by means of short-wave radio. The aim of the broadcasts was to sow discontent with the Government of the United States, to impair the morale of the armed forces, and to create dissension between the American people and the people of the allied countries. Many of the broadcasts were caught by a United States Government monitoring station maintained at Silver Hill, Maryland.

 The jury found the defendant guilty and also answered affirmatively special interrogatories to the effect that the Government established thirteen overt acts of treason as having been committed by the defendant. Each overt act consisted of making a specific recording.

 There have been comparatively few trials for treason in the history of the United States. Not a single execution for treason has occurred in this country since the adoption of the Constitution. In England, for several centuries preceding the Revolution of 1688, treason trials were common and frequently took place when one faction took the control of the Government away from another. The definition of treason was carried to an extreme. Howell's State Trials are replete with reports of these cases. On the other hand, the annals of American jurisprudence disclose a wholesome freedom from charges of treason based on considerations of politics or vindictiveness. In part this salutary result is to be ascribed to the moderation and self-restraint of our people. In part it is to be attributed to the keen foresight and profound wisdom of the Founding Fathers. The Constitution of the United States explicitly defines the crime of treason. Nothing that fails to fit within the framework of this definition may be regarded as treason. Article III, Section 3, Clause 1, of the Constitution provides as follows: '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.'

 Congress has enacted the following statute defining treason, 18 U.S.C.A. ยง 2381: 'Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined not less than $ 10,000; and shall be incapable of holding any office under the United States.'

 Thus, there are only two types of treason against the United States: first, levying war against the United States; and second, adhering to their enemies, giving them aid and comfort.

 As the reported treason cases are comparatively few, it may be useful to review them briefly in chronological order.

 The first prosecutions of this type arose out of the Whiskey Rebellion. Some of the leading rebels were charged with levying war against the United States in connection with their attempts to resist the enforcement of the internal revenue laws. *fn1" A rather curious prosecution for treason, which did not result in conviction, took place several years later in connection with an insurrection in Pennsylvania against the enforcement of an Act of Congress providing for numbering and measuring windows as a basis for taxation. *fn2"

 The most famous and spectacular treason case in the history of the United States, dealt with the Burr conspiracy. It was tried before Chief Justice Marshall, sitting at circuit. Aaron Burr was charged with levying war against the United States, in that he conspired with others to detach from the United States a part of the territory bordering on the Mississippi River, and to establish an independent dominion. The trial ended in a verdict of not guilty. *fn3"

 Another prosecution for treason took place in 1808 in the District of Vermont. The defendant was accused of levying war against the United States in connection with some activities intended to oppose the enforcement of the Embargo Act. It was held that these actions did not constitute treason, as they were carried on for a private object, rather than for the purpose of subverting the Government. *fn4"

 Several prosecutions for treason were instituted during the war of 1812. In one case the defendant was indicted for adhering to the enemies of the United States by supplying them with food, showing them the channels of the Potomac River and informing them of the location of troops of the United States. *fn5" Another case involved the return of some British prisoners to the British commander. *fn6" In still another case the defendant was charged with adhering to the enemy in that he went ashore from a British ship on which he had been held as a prisoner. The accusation was that his purpose was to unite with the enemy in acts of hostility. *fn7"

 An endeavor to prosecute as treason the participation in a riot to resist the enforcement of the Fugitive Slave law, met with failure. *fn8"

 It is greatly to the credit of the American people that the Civil War did not give rise to numerous charges of treason. An attempt to prosecute Jefferson Davis ended after long delays with a dismissal of the indictment on a technicality. *fn9" One person was accused of treason in that he fitted out a schooner for privateering purposes. *fn10" There appear to be no other reported cases of treason arising out of the Civil War.

 World War I gave rise to only a couple of treason cases. They involved the harboring of hostile spies and conveying information to the enemy. *fn11" In the light of the far-reaching ramifications of World War II and the unprecedented magnitude of the armed forces of the various belligerents, it is not surprising that a number of treason prosecutions were among the consequences of this stupendous global conflict. In one case the defendant was convicted of treason consisting of harboring and assisting an escaped German prisoner of war. *fn12" In two cases, the defendants were charged with aiding and sheltering German saboteurs, who were landed on American soil from German submarines. *fn13" Several cases, one of which has reached the appellate courts, involved persons who had acted as radio commentators in enemy countries in time of war and in that capacity prepared ...

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