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88 F.2d 637
BURGMAN
v.
UNITED STATES.
No. 10489.
United States Court of Appeals District of Columbia Circuit.
Argued November 14, 1950.
Decided February 8, 1951.
James J. Laughlin, Washington, D. C., for appellant.
William E. Owen, Washington, D. C., also entered an appearance for
appellant.
Victor C. Woerheide, Sp. Asst. to the Atty. Gen., of the Bar of the Supreme
Court of Missouri, pro hac vice, by special leave of Court, with whom
William A. Paisley, Sp. Asst. to the Atty. Gen., was on the brief, for
appellee.
George Morris Fay, U. S. Atty., Joseph M. Howard, Asst. U. S. Atty., and J.
Frank Cunningham, Atty., Dept. of Justice, Washington, D. C., also entered
appearances for appellee.
Before CLARK, WILBUR K. MILLER and PRETTYMAN, Circuit Judges.
PRETTYMAN, Circuit Judge.
1Appellant was indicted for treason, tried by court and jury, convicted, and
sentenced to imprisonment. Upon this appeal he presents nine points. We have
examined each with care.
21. Appellant says that his trial was not impartial, because Government
employees sat upon the jury. We regard this question as set at rest by the
decisions of the Supreme Court in Frazier v. United States1 and Dennis v.
United States.2
32. He says that the indictment did not state an offense, in that (a) mere
words and opinions cannot constitute overt acts and (b) treason is not
committed by a citizen residing in enemy territory.
4The indictment alleged sixty-nine overt acts, which involved appellant's
alleged activities in preparing records for broadcasting by radio at Berlin,
Germany. Appellant says that broadcasting is merely a passive, verbal
description of thoughts and so falls within the rule that no mere thought is
a criminal act. This contention was examined by us in the Gillars case,3 and
we adhere to the view there taken.
5The contention as to the territorial limitations upon acts of treason was
also considered in the Gillars case, and we adhere to the view there taken
upon that point.4
63. Appellant says that the court erred in denying him subpoenas for eight
aliens resident in Germany. The court did in fact grant an authorization to
take the depositions of seven of the persons named, and the eighth was
produced at Government expense. Expenses of counsel for appellant in going
abroad to take the depositions were paid by the Government.
7The power of the court to issue subpoenas for aliens resident in foreign
countries was considered by this court in the Gillars case and was denied,
largely upon authority of Blackmer v. United States5 and in agreement with
United States v. Best.6 We find no error in this connection.
84. Appellant says that the trial court erred in admitting as evidence
electrical transcriptions of the defendant's voice. He says that this was in
violation of the Fifth Amendment as compulsory self-incriminating testimony.
9Appellant's alleged treason consisted, as we have indicated, of making
records for radio broadcasts at Berlin, Germany, the broadcasts being
addressed to the armed forces of the United States, allegedly seeking to
impair the morale of those forces and to dissuade them from support of this
country. Those records were presented as evidence at the trial. From no
point of view can we see that the admission of this evidence was violative
of appellant's rights under the Fifth Amendment.7 The records did not belong
to him, were not taken from him, and had never been in his possession.8 They
were not mere testimony concerning the acts of treason; they were the
physical embodiment of the very acts themselves. The fact that modern
science permitted the prosecution to reproduce in the courtroom before the
jury the very overt act with which appellant was charged does not lessen the
propriety of the presentation. The records were not appellant's testimony;
they were mechanical evidence of his original acts. If an accused performs
an act in public, surely a witness may describe the act to a jury. Such
evidence is not compulsory testimony by the accused. If the act consists of
a speech, a witness may recite the content of the speech, even though the
speaker himself cannot be compelled to describe it. The recitation by the
witness of what the accused said is not compulsory testimony by the accused.
If a recording is made of a speech, its presentation as evidence is governed
by the rules relative to witnesses of the speech, not by the rules relating
to compulsory testimony by the speaker. An accused may well incriminate
himself, as, for example, when he commits an offense in public, and evidence
of his self-incrimination may be readily admissible upon his trial. The
constitutional prohibition is that he may not be compelled to incriminate
himself. We continue of the same view which we expressed upon this point in
the Gillars case, supra.
10
5. Appellant says that the trial court erred in the exclusion of evidence.
He says that after the American Embassy staff had been evacuated from
Berlin, leaving him there without a passport, he received, through the Swiss
Government, a notice of expatriation and thereafter thought that his
allegiance to the United States was at an end. Upon reading the record we
find no merit in the point. Appellant testified that he had received such a
letter, but he had neither the original nor a copy of it. Thereupon the
court permitted him to testify as to what the alleged letter said.
11
6. Appellant says that the trial court erred in refusing to give the jury
certain requested instructions. The first of these instructions was, in
effect, that appellant could not be guilty of treason if he believed that he
was no longer an American citizen, such belief negativing the possibility of
the necessary specific intent to breach his allegiance. Although the
requested instruction was denied, counsel was allowed to argue the point to
the jury. The court instructed the jury that an intent to betray one's
country is an essential element of the crime of treason and must be proved
as such, and also told the jury, "So, too, statements by the defendant may
be considered by you and an inference from these statements may be drawn by
you as to the existence or non-existence of an intent to betray his
country." Upon the whole of the facts in this record we do not see how the
court could properly have given the requested instruction. No reasonable
basis in fact for a belief by this appellant that he had lost his obligation
of allegiance to this country appears. An unfounded belief, evidenced only
by a self-asserted mental conclusion, can hardly be sufficient to excuse
long-continued, deliberate treason. The trial court went about as far as it
could go in appellant's behalf when it instructed as it did.
12
Appellant says that the trial court erred in refusing to instruct the jury
that one situate in a foreign land and deprived of the protections due from
the country of his citizenship is relieved of all duty of allegiance to the
latter country. The Court of Appeals for the First Circuit considered this
point in the Chandler case,9 and we agree with its view upon it.
13
7. Appellant says that in his charge to the jury the trial court erred in
his comment upon the evidence. Appellant's defense was, in part, insanity.
The court remarked to the jury, in the course of summarizing the evidence on
the point, "O
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