The opinion of the court was delivered by: BYERS
This is a Title 28, Section 2255 motion by the defendant for an order vacating and setting aside his judgment of conviction of treason, on January 17, 1949.
A like motion was made and denied by Judge Inch, who was the trial judge before whom the defendant pleaded guilty in open court, and is the subject of his opinion reported in D.C., 100 F.Supp. 209.
The head note states at the outset, that the defendant James Monti is 'also known as Martin Wiethaupt.'
That decision was not appealed.
The present motion is more restricted in scope than the former, being confined to the single contention that the court which pronounced the sentence which the defendant is now serving, was without jurisdiction, i.e. personal jurisdiction over the defendant, since he was not 'found' within this District within the requirements of 18 U.S.C. 3238.
For convenience, that provision is quoted:
'3238 Offenses not committed in any district.
'The trial of all offenses begun or 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.'
The question of this court's jurisdiction over the subject-matter of the offense here involved, was inquired into and resolved in favor of the Government, in Ex parte Monti, D.C., 79 F.Supp. 651.
The correctness of that decision is not now brought into question. Perhaps it was involved by implication in the prior motion decided by Judge Inch.
To the same effect as to jurisdiction over the subject-matter, see Chandler v. United States, 1 Cir., 171 F.2d 921; certiorari denied 336 U.S. 918, 69 S. Ct. 640, 93 L. Ed. 1081; Best v. United States, 1 Cir., 184 F.2d 131.
The point of the present attack which is not complicated by any assertions going to the merits of defendant's cause, is that he was taken into custody at Mitchel Field on January 26, 1948 by F.B.I. agents, immediately upon his receipt of a General Discharge under Honorable Conditions from the Army of the United States. The circumstances attending his presence at Mitchel Field will be stated presently, in the reverse order of their happening.
He was at once arraigned before a United States Commissioner, charged with treason, and remanded to the Federal House of Detention. The intermediate steps which culminated in his plea of guilty and sentence need not be recited.
The reason for his presence at Mitchel Field on the date of arrest is that he was then an enlisted man (Sergeant) in the Army of the United States (U.S. Air Force). This was because he enlisted in 1946 in order to comply with a Presidential order remitting the then unexecuted portion of a court martial sentence imposed on or about September 18, 1944. That order was to be 'effective upon his (Monti's) enlistment in the Army of the United States.'
The General Court Martial Order of the Headquarters, Mediterranean Theater of Operations, was the outcome of charges involving his unlawfully taking a United States Army airplane, and flying it into enemy territory, where he abandoned it. Thereafter, as was subsequently ascertained, he entered the service of Germany, and participated in radio broadcasts directed to American soldiers and others, in the effort to advance the German cause.
Seemingly in due course he was arrested by the United States authorities, and tried for theft of the air craft, and being AWOL; this was without knowledge by the Army authorities of his activities in what was then the military effort of the enemy. At the time the ...