Appeal from the District Court of the United States for the Southern District of New York.
Before SWAN, CHASE, and CLARK, Circuit Judges.
Appellant, Anthony Cramer, was convicted by a jury under an indictment charging treason by adhering to enemies of the United States, giving them aid and comfort, in violation of Sec. 1 of the United States Criminal Code, 18 U.S.C.A. § 1. He was sentenced to 45 years' imprisonment and fined $10,000. His appeal challenges the sufficiency of the evidence to sustain the conviction, the legal sufficiency of the overt acts submitted to the jury, the adequacy of proof of the overt acts, and the admission of alleged prejudicial evidence.
Sec. 1 of the Criminal Code provides: "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." This enacts the definition of treason laid down in Art. 3, § 3, cl. 1, of the Constitution of the United States, all parts of which are also here controlling, 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."
In substance appellant is charged with having aided and comforted Werner Thiel and Edward John Kerling, German saboteurs, by receiving and safeguarding property of Thiel, carrying out Thiel's requests and instructions to establish contact and communication with others, and giving false information to conceal his activities. Thiel and Kerling were two of the eight German saboteurs who, equipped with various high explosives and other sabotage devices for use against American industry, were landed on the shores of Florida and Long Island in June, 1942, by a German submarine, but who were all shortly apprehended, tried, and sentenced, six to death, two to long-term imprisonment. Cf. Ex parte Quirin, 317 U.S. 1, 63 S. Ct. 2, 87 L. Ed. .
Appellant, a naturalized citizen, was born in Germany in 1900 and served in the German army during World War I. He came to this country in 1925 with the announced intention of becoming a citizen, which he did in 1936. He first met Thiel while working in Detroit in 1929. They became fast friends; and when appellant moved to Hammond, Indiana, in 1933, he sent Thiel money to come out to work there, too. In 1934, they joined the Friends of New Germany, which subsequently became the notorious German Bund. Appellant was treasurer, but resigned in 1935, as he claims, because it was a money swindle and because he disliked its emphasis on marching and other martial activities. In 1936, he returned to his home in Germany for a short visit. While there he attended the Olympic games, to which a number of the Friends of New Germany had also come.
Upon his return in 1936, he and Thiel after an unsuccessful venture with a Florida restaurant went to New York, where they lived together or in close contact with each other until Thiel left for Germany in March, 1941 - to enter a school for saboteurs, as it now appears, although appellant claims not to have known this. Appellant admits, however, that he realized during the time they were so closely associated that Thiel was an ardent Nazi.While they were in New York, appellant loaned Thiel money on a number of occasions, totaling according to an account book kept by appellant and placed in evidence, $217.50. This sum was unpaid when Thiel left for Germany.
Appellant did not see Thiel again until June 22, 1942, soon after the latter's landing in Florida from a German submarine. Appellant, testifying in his own behalf, gave a full account of the events of that day and of the ensuing week which formed the basis of his arrest. Since this presents the events in sequence, as well as in the light most favorable to him, we can well start with his story. He was in his apartment in New York City on the morning of June 22, when he heard a strange voice call his name outside the door. He decided not to answer, and a note was then slipped under his door, reading: "Be at the Grand Central station tonight at 8 o'clock, the upper platform near the information booth, Franz from Chicago has come into town and wants to see you; don't fail to be there." Appellant claims he knew no Franz from Chicago, but when evening came, curiosity got the better of him and he went to the appointed place. There Thiel met him. Appellant, astonished, sought the details of his return to this country and asked Thiel particularly whether he had come by submarine. Thiel looked startled and then with a smile put him off with the promise to give the full story later. He pressed upon appellant, however, the fact that his name was now Bill Thomas and that he was anti-Nazi.
From the station they went to the Twin Oaks Inn at Lexington Avenue and 44th Street for a drink, and while there Thiel asked appellant about his fiancee, Norma Kopp, in Westport, Connecticut; Thiel adopted appellant's suggestion that appellant write her to come to New York City, without, however, disclosing his arrival. When appellant told Thiel that agents of the Federal Bureau of Investigation had inquired about him, Thiel showed a draft registration card with the name William Thomas on it and said that was to avoid any trouble. He again put off further questions as to his reasons for coming back from Germany with the suggestion that they wait until Norma arrived and then they could discuss the whole thing over a glass of wine.
Later in their discussion of the bombings of German cities, however, Thiel let slip that "the only time I really was scared to death was when I came over here we got bombed." In appellant's own words: "One thought, it came to me in a flash, I said 'Then you have come over by submarine, haven't you?'" Again he was put off by Thiel, who apparently became irritated at his inquisitorial attitude. Appellant admits, however, that by then he was sufficiently convinced of the idea to try to broach the subject again, though unsuccessfully, by relating an experience of a submarine which he had heard over the radio. Thiel turned to the subject of his debt to appellant and stated that he could now pay it, as he had about three and a half or four thousand dollars with him. He told appellant that "if you have the right kind of connection you can even get dollars in Germany." He accepted appellant's suggestion that he place the balance in appellant's safe deposit box.
After leaving the Twin Oaks Inn they went for a drink to the Commodore Hotel, where Thiel told appellant he was staying. Before parting they walked outside the hotel and the station for a short time talking and made arrangements for a meeting the next night at the Twin Oaks Inn, as Thiel declared that he could not come to appellant's apartment because he had too many acquaintances there and did not want to be seen.
At their second meeting, June 23, they were joined by Edward Kerling (the leader of the Florida group of saboteurs) for about three quarters of an hour, and they all discussed German history. After Kerling left, Thiel told appellant he had his money in a belt on his body, and he went to the men's room to remove it. Thiel paid the bill, as he had the previous night; they walked to the street; and Thiel there handed the belt over. Thiel told appellant to hold some out from the safe deposit box for ready use. After stopping in Thompson's Cafeteria for a cup of coffee, they made arrangements to meet again two days later, on June 25.
Upon reaching home appellant took the money out of the belt and put the belt in his shoe box. The next night he counted the money, which totaled $3,670. He made a memo showing the denominations of the bills and a deduction from the total of $200 due him. The same evening he wrote Norma to come to New York, as he had "news of the most sensational nature" for her. The next day he mailed the letter and deposited the money in his box, keeping $160 for Thiel's immediate use in a book in his apartment. Appellant did not find Thiel at the appointed place that night for the simple reason that Thiel had been arrested. The next night he went again without success. Shortly after he returned home, Norma arrived and he told her Thiel was back. She was incredulous; and he could tell her only that Thiel might have come by submarine, that he had some $3,000 with him, and ...