Appeal from the District Court of the United States for the Southern District of New York.
Before AUGUSTUS N. HAND, CHASE, and CLARK, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
It is argued on behalf of several appellants that Section 11, 50 U.S.C.A. § 311, of the Selective Training and Service Act, under which the indictments were laid, is unconstitutional because of the provisions of Section 8(i) in which Congress declared as a policy that a vacancy caused in employment by reason of induction of an employee into the service of the United States should not be filled "by any person who is a member of the Communist Party or the German-American Bund." It is unnecessary to do more than advert to Section 14(b) of the same act which says: "if any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of this Act, and the application of such provision to other persons or circumstances, shall not be affected thereby." We need not say whether Section 8(i), which apparently was only designed to express a congressional policy and not a legislative mandate, can fairly be interpreted as going further. The separability clause we have quoted is enough to leave the enactment in Section 11 proscribing evasion of service in the land and naval forces, and conspiracies to do this, unaffected by any constitutional questions as the validity of Section 8(i). Electric Bond & Share Co. v. S.E.C., 303 U.S. 419, 434, 58 S. Ct. 678, 82 L. Ed. 936, 115 A.L.R. 105; Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 234, 52 S. Ct. 559, 86 L. Ed. 1062, 86 A.L.R. 403; Reitz v. Mealey, 314 U.S. 33, 39, 62 S. Ct. 24, 86 L. Ed. 21. Congress plainly had no intent to have the whole act conditioned on the validity of Section 8(i). Indeed, to impute such an intent seems fantastic.
It is further argued that the indictment was insufficient because the only conspiracy which could be charged under the statute would be one to hinder or interfere with the administration of the act "by force or violence." This same objection to a similar indictment was specifically raised in United States v. O'Connell, 2 Cir., 126 F.2d 807, certiorari denied Houlihan v. United States, 316 U.S. 700, 62 S. Ct. 1297, 86 L. Ed. 1769. There we held that Section 11 embraces conspiracies to violate any of the substantive offenses described in the section, and is not limited to conspiracies to "hinder or interfere in any way by force or violence."
There is the further claim, which we think to be unsubstantial, that the evidence was insufficient to sustain the charge. The proof indicates that the defendants were part of a large organization, one of the purposes of which was to interfere with the administration of the Selective Training and Service Act. The Bund did everything it could to prevent the passage of the Act, and finally, when the law was enacted, advised its members to "refuse to do military service", until any laws of the country or of the state which affected the citizenship rights of members were repealed. All of the appellants, unless possibly Schneller, have already been shown to have participated in the formulation or the promulgation of Order 37, which definitely advocated resistance. We think even the appellant Schneller was implicated for, in October, 1940, he had written a newspaper article attacking the draft; in December, 1940, he was visited by Kunze at Erie, and thereafter, at least as early as June, 1941, became a unit leader. These relations with the activities of the Bund were sufficient to justify the submission to the jury of his participation in the conspiracy.
It is also contended that Section 11 is in terms applicable only to conspiracies to counsel others to "evade" service and that the present indictments must fail because no artifice was employed in the present case. But the word "evade" includes not only furtive acts of evasion but also, in our opinion, covers any form of refusal or resistance. Indeed the word derivatively means no more than "go away" or "escape from", whatever be the means of accomplishing the purpose.
The appellants claim error because the judge charged the jury that an intention on the part of the defendants to bring a test case to determine the constitutionality of Section 8(i) of the Selective Training and Service Act was immaterial to the guilt or innocence of the defendants. He charged that a "bona fide honest intent to make a test case was no defense", saying that "if there was a conspiracy amongst these defendants or any of them having as its object the violation of the Selective Service Law, knowingly, the reason for such violation is immaterial to you in your consideration of the question of their guilt or innocence". It is argued that the question of so-called "corrupt intent" could not properly be withdrawn from the jury. The logical alternative to the rule the judge laid down is freedom to conspire to violate any statute whenever it is thought there is doubt about its constitutionality, however erroneous the contention may prove to be. We are referred to various decisions such as People of the State of New York v. Powell, 63 N.Y. 88; People of the State of New York v. Flack, 125 N.Y. 324, 26 N.E. 267, 11 L.R.A. 807; and Landen v. United States, 6 Cir., 299 F. 75, 78, 79, which indicate that for a conspiracy to exist there must be a corrupt motive. We hold that to establish violation of the statute nothing more has to be proved than that the parties "had in contemplation all the elements of the crime they are charged with conspiracy to commit." United States v. Mack, 2 Cir., 112 F.2d 290, 292; Hamburg-American Steam Packet Co. v. United States, 2 Cir., 250 F. 747, 759; Chadwick v. United States, 6 Cir., 141 F. 225, 243.
Counsel also assign error because of the mode of the selection of the jury. The applicable statute appears in Title 28, Section 424 of the United States Code Annotated and is quoted below.*fn2 The court adopted a practice for the trial which has been frequently employed and under which peremptory challenges were to be exercised under the so-called alternating system. Under this, the defendants were all together allowed two challenges, then the government one, and so on until the defendants had exercised or waived challenges to the number of eight, then the defendants were required to exercise or waive one, and the government one, and then the defendants one and the government one. Thus the government would have the final challenge. No objection was made to this system until the defendants had exercised, or had an opportunity to exercise, nine challenges, and there remained one challenge for them and one for the government. At that point the jury was declared by defendant's counsel to be satisfactory, but they asked leave to defer the exercise of their last challenge in case the government should exercise its final challenge. The court thereupon said: "The defendants were given the privilege of exercising their right to challenge first, and I don't think it would be fair to change that at the end. I think that alternating system should be followed throughout. So I will say now to defendants' counsel that they may exercise the privilege of a peremptory challenge at this time or the court will consider that they have waived it." To this ruling appellants' counsel excepted.The defendants declined to exercise the last challenge they had under the court's ruling. Thereupon the government exercised its last challenge in respect to juror Number 9, who was excused accordingly. The box was then filled by drawing another juror and the jury as thus constituted was sworn, but, before the trial began, defendant's counsel stated to the court, in the absence of the jury, that the juror who had been drawn in place of Number 9 was not satisfactory to them and that they had had no opportunity to challenge her. The court said: "I think the record already shows that." In other words, they maintained that they should have been allowed to exercise their last challenge after the government's challenges had been exhausted.
In Pointer v. United States, 151 U.S. 396, 410, 14 S. Ct. 410, 415, 38 L. Ed. 208, a unanimous court, speaking through Justice Harlan, enunciated the general rule that where, as in the case at bar, "the subject is not controlled by statute, the order in which peremptory challenges shall be exercised is in the discretion of the court." In Lyon v. State, 116 Ohio St. 265, 155 N.E. 800, the Supreme Court of Ohio, relying on Pointer v. United States, supra, sustained the very method of exercising challenges which the trial judge adopted in the case at bar. In Commonwealth v. Piper, 120 Mass. 185, the court said that "the statutes conferring and defining the right of challenge in capital cases contain no provisions as to the order and time in which the rights shall be exercised by the government or by the defendant * * * . There is no general rule of court upon the subject, and all directions as to the time when and the mode in which either party shall challenge, except so far as regulated by the statutes, like other matters affecting the proper conduct and order of the trial, are within the discretion of the court." See also Philbrook v. United States, 8 Cir., 117 F.2d 632, 635, certiorari denied 313 U.S. 577, 61 S. Ct. 1097, 85 L. Ed. 1534. The appellants were deprived of no right to exercise one of the peremptory challenges given them by statute, but were merely required to exercise their challenge at a particular time. We are clear that the court in adopting the alternating system infringed no legal right of the defendants and that the jury was properly selected.
The most important question before us is whether certain written statements signed by Kunze and Wendlandt were improperly received in evidence, and whether, if so, they were prejudicial to any of the defendants other than themselves.The trial judge admitted them only as against these defendants and charged the jury that they were binding on no one else.
Kunze was arrested in Texas on July 4, 1942, by a Special Agent and brought to New York by airplane, where he arrived Sunday morning, July 5, at 8:15 A.M. He was then taken to the New York office of the F.B.I., fingerprinted, photographed and locked in a cell, and arraigned on Monday, July 6. At about 11 A.M., on July 5, he was questioned by F.B.I. Agent O'Neill after being informed that he did not have to make any statement unless he so desired, and that if he made a statement it might be produced in court against him. He was also advised that "no promises, immunity, or remuneration would be made to him". O'Neill asked him various questions relating to his activities and he answered them; thereafter the answers were reduced to statement from by O'Neill, and certain paragraphs were incorporated which Kunze himself dictated to the stenographer. These paragraphs were pointed out at the trial by O'Neill. The questioning began 11 A.M., Sunday July 5, and ended at 5 A.M. July 6. It was not continuous, and there is no claim that threats or force of any kind were used to procure it, and Kunze so asserted in the signed statement itself. O'Neill testified that Kunze was given an opportunity to read and make corrections in the statement prior to signing it.
We think there can be no doubt that prior to the decisions of the Supreme Court in McNabb v. United States, 318 U.S. 332, 333, 63 S. Ct. 608, 87 L. Ed. 817, and Anderson v. United States, 318 U.S. 350, 63 S. Ct. 599, 87 L. Ed. 829, the admission of the statement would have been allowed, on the ground that it was voluntary. Lisenba v. California, 314 U.S. 219, 239, 62 S. Ct. 280, 86 L. Ed. 166; Wilson v. United States, 162 U.S. 613, 16 S. Ct. 895, 40 L. Ed. 1090. Indeed, there seems to have been no evidence and to be no claim that Kunze was threatened or coerced in any way, or that rudeness of manner was resorted to in questioning him. While he at the time had no lawyer, he did not ask for counsel.
It is to be noted that Kunze's statement contains nothing directly bearing on the issue in the case that Kunze was largely instrumental to the drafting and promulgation of Order 37 counseling resistance to the draft.It contains the statement that Kunze traveled about the country without procuring permission of his local draft board, and similarly entered Mexico with a view to prolonging his journey to Germany and becoming a German citizen. It contains statements of dissatisfaction with the war policies of the national administration, particularly that of friendship with Russia, and of his intention to abandon his United States citizenship and to become a German citizen. He also stated in it that if war were between Germany and Russia or between Germany and England his sympathies would be exclusively with Germany; and in respect to American-Japaneses hostilities that his sentiments "would be favorable to Japan to the extent that a nation of one hundred million people needs a certain amount of room in which to live, unless it is to be condemned to a voluntary suicide". It ...