Full opinion text
POPE, Circuit Judge. Appellant was convicted of treason against the United States. The indictment charged that she adhered to the enemies of the United States giving them aid and comfort by working as a radio speaker, announcer, script writer and broadcaster for the Imperial Japanese Government and the Broadcasting Corporation of Japan, between November 1, 1943, and August 13, 1945; that such activities were in connection with the broadcasting of programs specially beamed and directed to the American Armed Forces in the Pacific Ocean area; and, that appellant’s activities were intended to destroy the confidence of the members of the Armed Forces of the United States and their allies in the war effort, to undermine and lower American and Allied military morale, to create nostalgia in their minds, to create war weariness among the members of such armed forces, to discourage them, and to impair the capacity of the United States to wage war against its enemies. The indictment alleged the commission of eight overt acts. Appellant was found guilty of the commission of overt act No. 6 only, which in the language of the indictment, was: “That on a day during October, 1944, the exact date being to the Grand Jurors unknown, said defendant, at Tokyo, Japan, in a broadcasting studio of the Broadcasting Corporation of Japan, did speak into a microphone concerning the loss of ships.” - Upon this appeal counsel for appellant have filed briefs asserting the commission of numerous errors on the part of the trial court. Their briefs, however, have overlooked this Court’s Rule 20d relating to the requirement of a specification of errors and the manner in which the same shall be stated. The failure to comply with this rule has added materially to the task of the court in attempting to evolve from very lengthy briefs the precise contentions made by the appellant, and we take this occasion tó call the attention of the members of the Bar of this Court to the fact that the rule is designed to clarify counsel’s presentation of an appeal as well as to lighten the labors of the court. Appellant’s contentions fall into two categories: the first, it is asserted, call for a judgment that the defendant-appellant must be discharged; the second relate to alleged errors which would require a new trial. 1. Whether the applicable clause of the Act relating to treason was unconstitutional as applied to appellant. At the outset appellant contends that those provisions of the treason statute, 18 U.S.C.A. § 1, 1946 Ed. under which she was convicted were void and wanting in due process under the Fifth Amendment by reason of the co-existence of those provisions of the Nationality Act of 1940, 8 U.S. C.A. § 501 et seq,,. which repealed the former expressed prohibition against expatriation in time of war. In consequence of this, says appellant, the law provided that a person in like position as appellant, might lawfully have been naturalized to an enemy belligerent, and that under the Government’s naturalization policy the appellant could, as many other persons of Japanese ancestry did, have transferred allegiance to Japan. Appellant says that a person desiring to adhere to the enemy and give it aid and comfort, and wishing 'to do a thorough-going job of it, could shed his allegiance to the United States under existing law and thus engage in adherence, aid and comfort to the enemy with impunity. On the other hand, says appellant, she is charged with treason for having done no differently than the person who transferred allegiance. It is said that this constitutes an unreasonable and arbitrary discrimination; that it operates as a denial of equal protection of the law to such a degree as to be a denial of due process under the Fifth Amendment. Putting the argument in a slightly different form, appellant says that in permitting wartime naturalization to an enemy belligerent, the United States authorized adherence, aid and comfort to the enemy under certain circumstances. It is said that by permitting adherence to Japan after naturalization, the Japanese naturalization order is treated as the equivalent of a license. In other words, it is said one person adheres to the enemy giving it aid and comfort without any consequences under the treason act because he has a Japanese naturalization order which is in effect a license to adhere to the enemy. Another person, without such an order, is therefore engaged in no more than an unlicensed adherence to the enemy. It is said that punishment of treason cannot be limited merely to unlicensed adherence, aid and comfort because Article III, Section 3, of the Constitution, defining treason provides that it “shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” This clause, it is said, means that treason shall consist only of adherence, aid and comfort, as such. Limiting punishment for treason to unlicensed adherence, aid and comfort, means adding limitations and qualifications not contemplated by the Constitutional definition of treason. We are unable to perceive any sound basis for such an argument. The reference to licensed and unlicensed adherence to the enemy is, we think, but a play on words. The classification here, of which appellant complains, is none other than the ancient distinction drawn between those who do and those who do not owe allegiance. Whether the provisions of the Nationality Act which appellant thinks work unfairly represent a wise or sound legislative policy is a problem for Congress, not for us. We are unable to observe anything unreasonable or arbitrary about preserving the ancient distinction between those who do and those who do not owe allegiance regardless of whether the transfer of allegiance could be made in wartime or not. Reasons both historical and logical exist for the distinction and we find no want of due process here. 2. The question of a speedy trial. Appellant asserts that she was denied the speedy trial required by the Sixth Amendment and that such denial requires her discharge. Her argument in this respect is predicated upon the circumstance that after the defeat of Japan the occupying military force caused appellant’s arrest and internment for the period of approximately one year from October 17, 1945, until October 25, 1946. This arrest was pursuant to an order of the Commander-in-Chief of the Armed Forces of the Pacific authorizing the Commanding Generals of the occupying forces to apprehend and detain citizens and nationals of the United States who were suspected of treason and persons who might constitute a threat to the security of the military forces occupying Japan. On May 7, 1946, a military order was made to the effect that the appellant was not considered subject to a military trial, but that she was being held until the results of the military investigations were transmitted to the Department of Justice. Immediately prior to her release on October 25, 1946, the War Department advised the Army authorities in Japan that the “Department of Justice no longer desires Iva D’Aquino be retained in custody” and her release followed. Thereafter, on August 26, 1948, the appellant was arrested at Tokyo pursuant to a warrant of arrest issued under the authority of the Supreme Command for the Allied Power. It was issued upon the complaint of the Department of Justice. She was brought to the United States under guard of military police acting under orders from General Headquarters Far East Command who took her on board a United States Army Transport which arrived in San Francisco on September 25, 1948, when she was- delivered to special police of the Federal Bureau of Investigation. She was arraigned on the same day in San Francisco and indicted on October 8, following. There is nothing in the record to disclose failure on the part of the United States to prosecute the charge against appellant with reasonable promptness following the date of her arrest on August 26, 1948. The record is barren of any demand for a speedy trial. Danziger v. United States, 9 Cir., 161 F.2d 299, 301, certiorari denied 332 U.S. 769, 68 S.Ct. 81, 92 L.Ed. 354. Appellant obtained an order permitting one of her attorneys to go to Japan for the purpose of taking depositions at Government expense and she obtained a continuance of the trial date to permit the completion of that task. Under these circumstances there cannot be said to be a denial of a speedy trial. Daniels v. United States, 9 Cir., 17 F.2d 339, 344, certiorari denied Appell v. United States, 274 U.S. 744, 47 S.Ct. 591, 71 L.Ed. 1325. Appellant however says that her military detention in Japan in the year following October, 1945, demonstrates that she was denied a speedy trial. We shall have occasion to refer to the character of the detention later in this opinion, but wholly apart from whether that detention was or was not in accordance with law, it has no bearing whatever upon the question of her right to a speedy trial, which is one that arises after a formal complaint is lodged against the defendant in a criminal case. In this connection appellant makes an alternative contention based upon this prior imprisonment, — that such prior imprisonment constitutes former jeopardy. This contention obviously is without any basis whatever. McCarthy v. Zerbst, 10 Cir., 85 F.2d 640, certiorari denied 299 U.S. 610, 57 S.Ct. 313, 81 L.Ed. 450; Wainer v. United States, 7 Cir., 82 F.2d 305, affirmed 299 U.S. 292, 57 S.Ct. 79, 81 L.Ed. 58; Dixon v. United States, 8 Cir., 7 F.2d 818; United States v. Rossi, 9 Cir., 39 F.2d 432. 3. Loss of scripts and records. Appellant asserts that this year’s imprisonment in Japan must be considered in conjunction with the fact that certain scripts, records, and copies of appellant’s broadcasts were destroyed or lost before the date of the trial, and that under -all these circumstances it is a denial of due process for the United States to prosecute her when such scripts and records were unavailable. Appellant contends that under the doctrine of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, a deliberate suppression of the evidence on the part of the prosecution is a deni-al of due process. She contends that such is the situation here where the Government knowingly prosecuted a case upon incomplete evidence. She asserts that there is good reason to -believe that the missing evidence would be favorable to her and that the evidence became unavailable because of the Government’s own •acts since the Government originally had a complete set of the records and copies of the broadcasts compiled in its various monitoring stations. We think there is no basis for this contention on the part of appellant. There is no showing that the missing scripts and records would have been favorable to the defense or that the Government suppressed any of such evidence. We find nothing in the record to warrant an assumption that the prosecutor did not produce all such scripts and records as were available. Further, there is nothing to negative the Government’s contention that the monitoring station records previously kept had been destroyed or lost in the process of the routine closing of such stations. 4. The “posse comitatus” Act. The jurisdiction of the court below was based upon 18 U.S.C.A. § 3238 which provides: “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.” Appellant asserts that the court below was without such jurisdiction in that she was brought from Japan to San Francisco in an illegal and unlawful manner by the military authorities in violation of the so-called “posse comitatus” Act, 20 Stat. 152, 10 U.S.C.A. § 15. This is the same argument that was made unsuccessfully in Chandler v. United States, 1 Cir., 171 F.2d 921, 936; and in Gillars v. United States, 87 U.S.App.D.C. 16, 182 F.2d 962, 972, 973. For the reasons stated in those cases, we hold this argument without merit. 5. Question of the sufficiency of the evidence. Appellant argues that we should direct a judgment of acquittal on the ground that the evidence was insufficient to sustain a conviction. With respect to this, the record discloses that at the time of the commission of overt act No. 6, of which appellant was found guilty, she was unquestionably a citizen of the United States. She was born and educated in the United States and a few months prior to the outbreak of the war with Japan she had gone to Japan for the purpose of studying medicine. Previously she had received a college degree and had taken postgraduate work in a California university. Shortly before the outbreak of the war she applied for a passport to return to the United States and was advised by the State Department that the passport was denied on the ground that -her citizenship was not proven (she had traveled to Japan upon a “certificate of identification”). She endeavored to get clearance to board a ship scheduled to sail for the United States on December 2, 1941, but was unsuccessful. Early in 1942 she applied for evacuation through the Swiss Legation but encountering difficulties in procuring certification of her United States citizenship she abandoned this -attempt. Thereafter, and throughout her period of residence in Japan and while the war continued, she was frequently invited to become a Japanese citizen but steadfastly refused. In' the spring of 1945 she married D’Aquino, a Portuguese citizen. The marriage was subsequent to the date of the commission of the overt act No. 6. After having been employed in various jobs in 1942 and in the early part of 1943, appellant sought employment at Radio Tokyo and began her work as a typist for the Broadcasting Corporation of Japan in the fail of 1943. Shortly thereafter she began her broadcast work for this corporation which was under the control of the Japanese Government. There is evidence in the record that when the appellant took her voice test and accepted employment -as an announcer and broadcaster for Radio Tokyo she knew that her work was to be concerned with a program known as “Zero Hour” which was to be beamed and directed .specially to Allied soldiers in the Pacific. She was told and understood that the program would consist of music and entertainment designed to procure a listening audience among Allied soldiers, and that there was to be interspersed news and commentaries containing propaganda which was to be used as -an instrument of psychological warfare. Their object was to cause the Allied troops to become homesick, tired and disgusted with the war. Appellant participated in some 340 programs on the Zero Hour. She announced herself as “Ann” or “Orphan Ann”. From time to time she attended meetings of the participants in the Zero Hour program where the Japanese Army officers in command of the enterprise advised the persons present of the strategic importance of the program and urged continued efforts by the participants. The overt act No. 6 was testified to' by the requisite number of witnesses who observed and listened to the broadcast in question. One of them was a participant in the same Zero Hour program. He told the appellant of a release from Japanese General Headquarters giving the American ship losses in one of the Leyte Gulf battles and requested appellant to allude to those losses. She proceeded, as this witness and another testified, to type a script about the loss of ships. That evening, when appellant was present in the studio, the news announcer broadcast that the Americans had lost many ships in the battle of Leyte Gulf. Thereupon appellant was introduced on the radio and proceeded to say in substance: “Now you fellows have lost all your ships. You really are orphans of the Pacific. Now how do you think you will ever get home ?” It is true that the appellant’s version of her role as a broadcaster was substantially different from that which we have here summarized from the testimony of the Government witnesses. According to appellant’s version of the matter, the programs were exclusively entertainment and for that purpose only, she having been informed by the officer in command that the time for propaganda would not arrive until the Japanese were having more military and naval successes. Some of appellant’s witnesses testified that they were responsible for having her brought into the Zero Hour program. These persons were American prisoners of war who testified that they had been coerced into participation in this program. They testified that what they were up to was a sabotaging of the program insofar as it was designed to be propaganda to American soldiers, that they managed to inject in the program many reports of American prisoners of war and messages from them, and that the appellant cooperated with them in their efforts to frustrate the purposes of the Japanese military operating through the broadcasting corporation to destroy the morale of the American soldiers. Whether appellant’s version of her activities in broadcasting should be accepted rather than that disclosed by the Government witnesses was, of course, a question for the jury. Insofar as it is contended that the program was merely one to entertain the American troops, such a version of the evidence would, we have no doubt, tax the credulity of a jury who would be hard put to imagine the Japanese military spending time and money solely for that purpose. Appellant’s counsel do not argue that we must accept her version of the testimony. They make the rather narrow point that other activities of the appellant, concerning which witnesses on both sides testified, were such as to require a conclusion that there existed reasonable doubt of appellant’s intention to adhere to the enemy and reasonable doubt of her treasonable intent. These activities were certain acts of kindness and assistance which appellant rendered to Allied prisoners of war, some of whom were working with her on Radio Tokyo, and some of whom were imprisoned at Camp Bunka. The testimony was that she brought food, cigarettes, medicine, a blanket and short wave news of Allied successes to these prisoners, and that she did this frequently at substantial risk to herself. We are unable to perceive the force of appellant’s argument in this respect. A general treasonable intent to betray the United States through the impairing of its war effort in the Pacific, might well accompany a particular feeling of compassion toward individual prisoners and sympathy for the plight in which they found themselves. It is were psychologically impossible for a person engaged in a treasonable enterprise simultaneously to furnish cigarettes and food to individual prisoners, appellant’s argument upon this point might have some weight. We think that the question of the effect of these acts of kindness upon appellant’s intent was one for the jury. Certainly, under the circumstances here, the court cannot declare that there must be a reasonable doubt in a reasonable mind and hence direct a verdict. The question of the existence of a reasonable doubt was for the jury. Cf. Craig v. United States, 9 Cir., 81 F.8d 816, 827, certiorari denied 298 U.S. 690, 56 S.Ct. 959, 80 L.Ed. 1408. 6. Admissibility of so-called “confessions”. During the trial, a number of statements made to various persons by appellant were received in evidence and appellant contends that the court erred in admitting such statements for the reason that they were confessions and received as such contrary to the rules stated in Bram v. United States, 168 U.S. 532,18 S.Ct. 183, 42 L.Ed. 568, and in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, as restated in Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100. It is asserted that there was wanting sufficient proof that the statements were voluntary within the meaning of the rule in the Bram case; in some cases the statements were inadmissible because they were made at a time when appellant was being held under arrest and prior to arraignment upon the charge subsequently made against her; and further, that the statements made while she was held in custody were inadmissible under the .rule in the McNabb case because the Government is attempting to make use of the fruits of its own wrong. One of the written statements thus given during appellant’s confinement or internment in Japan was the result of an interrogation by an agent of the Federal Bureau of Investigation on April 29 — 30, 1946, in the visitors’ room at Sugamo Prison where appellant was then confined. We have previously alluded to this period of imprisonment and it will be noted that on the dates mentioned she had been confined for a period of approximately six months. Appellant argues that under the McNabb and Upshaw doctrine, this statement was inadmissible. An application of the McNabb-Upshaw rule to the facts of this case suggests some problems which we think need not be here resolved. The rule, predicated upon a violation of the procedural requirements of 18 U.S.C.A. § 595, and its successor Rule 5(a) F.R.Crim.P., 18 U.S.C.A., is obviously a sanction enforced, pursuant to the supervisory power of the Supreme Court against civil officers making arrests for criminal offenses. Since Rule 5(a) could have no application to the conduct of the military forces occupying Japan, the question of application of this sanction in this case is not too clear. Appellant asserts that Article 70 of the Articles of War places a similar procedural burden upon military forces in this case. It is our opinion, however, that the appellant was not within any category of persons subject to the Articles of War; that she was neither a retainer to the camp nor a person accompanying or serving with the Armies. Articles of War, Article 2, 10 U.S.C.A. 1473; cf. In re Yamashita, 327 U.S. 1, 20, 66 S.Ct. 340, 90 L.Ed. 499. The McNabb and Upshaw cases have no application here for the reason that appellant’s detention was legal and authorized by the laws of war. “The right of one belligerent to occupy and govern the territory of the enemy while in its military possession is one of the incidents of war, and flows directly from the right to conquer. We therefore do not look to the Constitution or political institutions of the conquerer for authority to establish a government for the territory of the enemy in his possession, during its military occupation, nor for the rules by which the powers of such government are regulated and limited.” Dooley v. United States, 182 U.S. 222, 230, 231, 21 S.Ct. 762, 765, 45 L.Ed. 1074, quoting Halleck on International Law, Vol. II, p. 444, cited in Gillars, supra, 182 F.2d at page 972. It is apparent that at the time of appellant’s interrogation by the agent of the Federal Bureau of Investigation her detention was pursuant to the exercise of military power. Appellant was a resident of a country occupied by the United States military forces who had exacted an unconditional surrender from the enemy. The' cessation of actual hostilities had occurred only slightly more than one month before appellant was taken into custody. We take judicial notice that the situation then existing in Japan was somewhat parallel to that in Austria as described in United States v. Best, D.C., 76 F.Supp. 857, 863. While open warfare had ceased, the security of the occupation forcfes was a continuing problem confronting the military commanders. Appellant was a suspected traitor. That she might be capable of fomenting disorder among the Japanese population then being subjected to the yoke of military occupation, and of inciting discontent among the troops of the oc-cuping powers was a sufficient basis for the military to take the precautionary measure of interning appellant. The paramount interest of the occupation force is its own security. We see no abuse of military discretion in the protection of that interest. We hold that the confinement was within the constitutional sanction of the war power ; the restraint was legal, and the admission in question was not the fruit of an unlawful detention and was properly received, in evidence. Another writing obtained while appellant was interned in this manner was a Japanese yen note signed “Iva I. Toguri ‘Tokyo Rose’”. It is claimed that this amounted to a confession and was not receivable for the same reasons urged with respect to the statement made to the Federal Bureau of Investigation previously mentioned. Not only do we consider this objection groundless for the reasons stated with respect to that statement, but it is apparent that the signed yen note was not a confession nor was it introduced as such. It was introduced early in the trial for the purpose of proving the appellant’s signature. It is contended that the document was received for the purpose of establishing her admission that she was “Tokyo Bose”. There was no attempt at the trial to identify the appellant as “Tokyo Rose”, as all of the evidence disclosed that she broadcast as “Ann” or “Orphan Ann”. The inclusion of the reference to Tokyo Rose in the signature on the yen note could under no circumstance be regarded as prejudicial to the appellant. It is contended that wholly apart from the McNabb-Upshaw rule these and other so-called confessions were inadmissible because of a failure to establish their voluntary character. The necessary foundation of preliminary proof of voluntary character of these statements was laid in each case. Thus the FBI officer previously mentioned, testified that he identified himself to appellant, advised her of her right to counsel, and of her right to decline to talk to him, and testified that-no threats or promises of any kind were made to her. The circumstances of the interviews, which took place over a two day period, negative any inference of oppression or anything else inconsistent with the voluntary character of the statement. The mere fact of a lawful imprisonment does not render such a confession inadmissible. LaMoore v. United States, 9 Cir., 180 F.2d 49. The other so-called confessions which appellant asserts were erroneously admitted were obtained at times when appellant was not interned or under arrest. She gave an oral interview to the military personnel assigned to the Army publication “Yank” magazine. Appellant says that the statement was coerced because she was interviewed by uniformed soldiers who told her that she “owed it” to the publication, and that giving one interview to a large number of newspaper correspondents at a single time would permit her to avoid being “badgered” by individual correspondents. This interview preceded by two days an interrogation by two members of the Counter Intelligence Corps and it is asserted that the same coercion affected both interviews. These statements were properly admitted in view of the fact that appellant voluntarily attended in each case, was accompanied by her husband, and made her statement without any threats or coercion whatsoever. No factor is present which would tend to characterize these statements as involuntary. Equally without ground is appellant’s objection to the evidence of her interview with a war correspondent, Clark Lee. The interview occurred before appellant’s internment. Later, on March 26, 1948, after she had been released from military custody, she signed the notes of the interview. She claims that she was coerced in both instances. The only circumstance suggesting coercion is the fact that when the interviewwas given the door was locked to keep other rival correspondents out of the rooms. At the time of the original interview appellant was attended by her husband and a friend. The interview lasted for about five hours with interruptions for “tea, cigarettes and things of that sort”. Two newspaper correspondents were present; they were in uniform and there were firearms in the room. The evidence shows no force or threats of force, no physical coercion of any kind, and no circumstances which would be unusual in a case.where a newspaperman has purchased an interview which he is attempting to keep exclusive. At the time the notes were signed by appellant, an army vehicle was sent to bring her to General Headquarters for this purpose. Appellant was informed by an official of the Department of Justice who was then present that she most probably would be prosecuted for treason and that she did not have to make any statements. The appellant did testify that Brundidge, one of the newspaper correspondents, told her on this last occasion when she signed the notes, that her opportunity to return to the United States would be enhanced if she signed them. Brundidge was not a “person in authority”. That there was no promise of leniency is apparent because of the statement simultaneously made that she probably would be prosecuted for treason. 7. Instruction relating to voluntariness of so-called confessions. •Related to the matters just discussed is the appellant’s contention that the court should have permitted the jury itself to pass upon the question whether the so-called confessions were voluntary or involuntary with an instruction that if they found them to be involuntary they should disregard, them. In view of the want of any substantial evidence tending to show that the confessions or any of them were involuntary, it would appear that there was no need for such an instruction. Stillman v. United States, 9 Cir., 177 F.2d 607, 619; Lewis v. United States, 9 Cir., 74 F.2d 173, 178. In any event, in order to predicate error upon the failure of the court to submit such a question to the jury, appellant must under Rule 30, F.R.Crim.P., point out the claimed omission from the charge to which she objects before the jury retired. The rule requires that such an appellant state “distinctly the matter to which he objects and the grounds of his objection.” At the time when counsel for appellant were given the opportunity, called for by Rule 30, to make their objection to the court’s charge, they did not call the court’s attention to the specific point now argued, and failed to state in so many words that they requested the court to submit the question of the voluntariness of the confessions to the jury. What they said was simply “we except to the refusal of each of the following numbered instructions on the ground that each of the instructions states the correct law and is applicable to the evidence and not covered by other instructions.” This statement was followed by the enumeration of 128 separate numbers identifying instructions that had been requested by appellant. Included in this enumeration was appellant’s requested instruction No. 88. If we assume that this wholesale blanket method of noting objections to the court’s charge was a sufficient compliance with Rule 30, an examination of the requested instruction 88 discloses that it was entirely too broad, for it was not directed to the alleged confessions, but referred to “various alleged statements by defendant as well as records of her voice test.” On the face of it, the requested instruction would comprehend all statements of the defendant of every kind whatever. It would comprehend statements made by her during the broadcast. It would include statements made by her not by way of confession or admission but which were received in evidence for their bearing as circumstantial evidence upon her intent. By its terms the instruction would apply to every oral or written statement attributed to the appellant by any witness. In such form it was properly rejected. 8. Requested instruction concerning proof of corpus delicti. Another instruction requested by appellant and which bore upon the appellant’s admissions or so-called confessions, was defendant’s proposed instruction No. 30a as follows: “You cannot consider the defendant’s admissions upon any of the issues of (1) citizenship (2) aid and comfort or (3) intention unless you first find that the Government has introduced other credible corroborative evidence on the same issue. Pearlman v. U. S., 10 F.2d 460, 461, 462 (CCA 9). Goff v. U. S., 257 F. 294 (CCA 8).” We think there was no occasion for giving any such instruction here where there was substantial proof of the corpus delicti wholly apart from the admissions or confessions. The reference to the admissions relative to citizenship was erroneous for some of the appellant’s admissions reíative to her citizenship were made prior to the commission of the alleged offense. Such admissions need not be corroborated. Warszower v. United States, 312 U.S. 342, 347, 61 S.Ct. 603, 85 L.Ed. 876. This court has held that it is unnecessary to make full proof of the corpus delicti independently of the defendant’s confessions. Wynkoop v. United States, 9 Cir., 22 F.2d 799; Wiggins v. United States, 9 Cir., 64 F.2d 950, certiorari denied 290 U.S. 657, 54 S.Ct. 72, 78 L.Ed. 569. The corroborative evidence need not independently establish the corpus delicti beyond a reasonable doubt. It is sufficient if the corroborative evidence, when considered in connection with the confession or admission, satisfied the jury beyond a reasonable doubt that the offense was in fact committed. In Pearlman v. United States, 9 Cir., 10 F.2d 460, this court indicated that the usual instructions on presumption of innocence and reasonable doubt adequately covered all that the jury need be told upon this question of sufficiency of proof of the corpus delicti. We find no error in the court’s failure to give the requested instruction mentioned. 9. Questions relating to duress. Appellant asserts that the trial court committed numerous errors relating to the claimed defense of duress or coercion. She argues that some of the instructions given upon this subject were erroneous; that other instructions requested by her should have been given, and that the court erred in excluding numerous items of evidence which were offered in support of this defense. The court instructed the jury at length upon the defense that the criminal act was not committed voluntarily but was the result of coercion, compulsion or necessity. The instruction included the statement that “in order to excuse a criminal act on the ground of coercion, compulsion or necessity, one must have acted under the apprehension of immediate and impending death or of serious and immediate bodily harm. Fear of injury to one’s property or remote bodily harm do not excuse an offense.” It will be noted that the court’s instruction was almost identical to that approved in Gillars v. United States, supra, 182 F.2d at page 976, note 14. The charge was a correct statement of the law upon this subject. United States v. Vigol, 2 Dall 346, 2 U.S. 346, 1 L.Ed. 409; Respublica v. McCarty, 2 Dall 86, 2 U.S. 86, 1 L.Ed. 300; Shannon v. United States, 10 Cir., 76 F.2d 490; R.I. Recreation Center v. Ætna Casualty & Surety Co., 1 Cir., 177 F.2d 603, 12 A.L.R.2d 230. Appellant seriously contends that however correct the instruction might be in an ordinary case where a person accused of crime committed in his own country claims to have been coerced by an individual, the instruction of the court was in error particularly in its requirement of apprehension of immediate and impending death, or of immediate bodily harm, in a case where the accused person was in an enemy country, unable to get protection from the United States and where the compulsion is on the part of the enemy government itself. The contention is that under these circumstances the requirement of “immediacy” in the court’s instructions was error. Appellant makes her point by quoting from East’s Pleas of the Crown, (1806, pages 70 to 71), as follows: “But if the joining with rebels be from fear of. present death, and while the party is under actual force, such fear and compulsion will excuse him. It is incumbent, however, on the party setting up this defence to give satisfactory proof that the compulsion continued during all the time that he staid with the rebels. It may perhaps be impossible to account for every day, week, or month; and therefore it may be sufficient to excuse Mm if he can prove an original force upon him, that he in earnest attempted to escape and was prevented, or that he was so narrowly watched, or the passes so guarded, that an attempt to escape or to refuse his assistance would have been attended with great difficulty and danger; and if the circumstances will admit of it, that he quitted the service as soon as he could: so that upon the whole he may fairly be presumed to have continued amongst them agam.st his will, though not constantly under an actual force or fear of immediate death.” (Italics supplied by appellant.) However appropriate such quoted language might be in the case of a person impressed into military or naval service of the enemy, we think that under the circumstances here there was no occasion for departing from the ordinary rules applicable to the defense of duress and coercion. We know of no rule that would permit one who is under the protection of an enemy to claim immunity from prosecution for treason merely by setting up a claim of mental fear of possible future action on the part of the enemy. We think that the citizen owing allegiance to the United States must manifest a determination to resist commands and orders until such time as he is faced with the alternative of immediate injury or death. Were any other rule to be applied, traitors in the enemy country would by that fact alone be shielded from any requirement of resistance. The person claiming the defense of coercion and duress must be a person whose resistance has brought him to the last ditch. In this same connection, appellant claims that the court erred in failing to give her requested instruction that she was an enemy alien of Japan. This instruction did not advise the jury as to what the legal consequences would be of appellant being in that category. The requested instruction did no more than furnish the jury a new name for persons in her position. We think that the failure to add this terminology to the instructions cannot have been prejudicial, for the jury was fully informed as to the precise situation of the appellant and their deliberations could not have been aided by supplying them with an additional name for her status. In support of this defense of coercion, appellant testified that one Takano, her civilian superior, informed her that she was “to take army orders * * * you know what the consequences are * * She undertook to give this statement significance by testimony as to atrocities inflicted by the Japanese upon certain internees and prisoners of war who disobeyed military orders. The testimony relating to the statement of Takano is the only evidence in the record which would appear to support the giving of an instruction with respect to duress or coercion. Appellant testified that she was not forced to take her position at Radio Tokyo and said that she did not broadcast because of any actual physical coercion or threats thereof. The only qualification of this testimony was the statement of Takano which she testified was made to her before she began her broadcasting activities. She testified -that she was not mistreated by the Japanese police. She performed her duties as script writer and announcer for the Zero Hour from November, 1943, until August, 1945. During this period she had pay raises; she was allowed the usual American holidays, and occasionally she absented herself from the broadcasting for considerable periods of time. These absences did not result in any immediate or drastic measures from her employers. On those occasions she ignored verbal and written demands to return to work and did so with, impunity and only returned to work when a Japanese official called upon her. There is no evidence of any determined refusal on her part which might have provoked coercion or brought about immediate and actual danger to her. In other words, there is no evidence that the appellant ever so conducted herself as to bring about a demonstration that death or serious and immediate bodily harm was to be apprehended for a refusal. Appellant was permitted to introduce a vast amount of testimony which she says was in support of her claim that she operated in fear and under apprehension of harm to herself. Thus, she testified that during her stay in Japan after war began, she was interrogated by the police and was kept under constant surveillance by them. Her living quarters were searched by the police and she was required to obtain permission to move from place to place. She asked to be interned but this was denied her. She also testified that her neighbors, other civilians, were suspicious of her; that she was under fear of mob violence from the Japanese populace. In addition there was received evidence of atrocities practiced on the prisoners of war by the Japanese and evidence that for refusal by prisoners of war to obey orders the penalty of death was inflicted. Other witnesses called by appellant testified to instances in which guards killed prisoners in cold blood and tortured and beat others. Some prisoners of war had been compelled by threats of death or other violence to participate in the operation of the Zero Hour broadcast. In general these experiences relating to such prisoners and to other victims of atrocities were communicated to the appellant. Appellant says that the court erred in giving the last three paragraphs of the instruction quoted in note 11, supra, to the effect that the fact that she was required to report to the Japanese police was not sufficient; that surveillance of the police was not sufficient; that threats made to other persons were not sufficient, etc. Appellant asserts that by this portion of the court’s instruction it emasculated all of this background testimony which was designed to disclose that appellant was operating in an atmosphere of terror. ■In order to consider the propriety of the instruction here complained of it is necessary to- understand the very wide scope which the court permitted appellant’s testimony to take. Although a strict following of the rule laid down in Gillars v. United States, supra, would have excluded evidence of threats or duress against others who participated in the Radio Tokyo broadcast, the trial court here allowed great latitude to appellant’s counsel in placing in the record evidence of sundry atrocities committed by the Japanese against persons other than the appellant. When appellant began her work on the Zero Hour at Radio Tokyo, she came in contact with three prisoners of war who had broadcasted at this station for a considerable period of time before she was employed there. These were a Major Cousens, an Australian prisoner; Captain Ince, an American prisoner; and Lieutenant Reyes, a Filipino prisoner. Appellant was permitted to testify as to accounts which were given her by these prisoners of war of the manner in which the Japanese military had compelled each of them to participate in broadcasting activities and she was permitted to relate their stories to her of their harrowing experiences at the hands of the Japanese from the time they were taken prisoners. This included their accounts of torture and murder of other prisoners of war at Singapore, at Manila, and at Camp Bunka in Japan, where the prisoners whom the Japanese were using for broadcasting were kept. She testified that Cousens informed her that the Japanese were brutal and uncivilized; that they were sly and cunning and never to be trusted. Similarly, Cousens, Ince and Reyes were permitted to testify as to atrocities practiced on the prisoners of war and which they themselves related to appellant. Thus Cousens in telling appellant how he came to broadcast on the Radio Tokyo gave her an account of how the men were being starved, beaten and tortured; how an Australian prisoner had been beaten to death with a club for stealing a can of onions and a Chinese prisoner had been beaten and put to death with the water torture because he went mad with hunger and tried to seize some food. Cousens related his experience in solitary confinement, his observation of Japanese guards murdering prisoners in cold blood for trying to' seize food, and how the Japanese officers told the prisoners that the punishment for disobedience would be death. Ince and Reyes testified to' telling the appellant about being compelled to broadcast for Radio Tokyo because of threats against their lives. Reyes gave accounts of the beating to death at Manila of two1 of his co-workers in the Manila underground radio; he told of observing Japanese soldiers at Manila bayoneting civilians for hiding food, machine gunning civilians, and of seeing Major Ince beaten. Ince testified as to atrocities committed against the prisoners confined at Camp Bunka. In addition, the appellant was permitted to testify as to' police surveillance of herself and of the suspicion with which she was regarded by other Japanese in the neighborhood where she resided. At the time this evidence was received, the court clearly indicated the theory upon which it was permitted to go in. The trial judge considered that such testimony was relevant as bearing upon the state of mind of the appellant. It is clear that the court considered and made it apparent to counsel and to the jury when the evidence was received that it had to do with the general question of whether the appellant had reasonable ground for apprehension of danger when she participated in the broadcast. It is our view that after the court had thus received at the instance of appellant this large volume of testimony none of which disclosed any direct duress or coercion against the appellant but which was relevant only as bearing upon the ques-. tion of reasonable ground for apprehension on the part of appellant, it was proper for the court to give the instruction of which complaint Í9 made. As we understand appellant’s objection to it, it is not seriously urged that this portion of the instruction did not correctly state the law, but it is contended that it had the effect of leading the jury to disregard this evidence and of preventing it from considering its cumulative effect upon the mind of the appellant. It is suggested that the primary vice in the instruction is that it “did not tell the jury anything about the cumulative effect of the above elements or of all the elements on coercion.” It is objected that the instruction was one-sided in telling the jury that each of certain items of evidence would be insufficient without mentioning the cumulative effect of a combination of all this evidence. It is true that the court might have told the jury about the possible cumulative effect of all this atrocity evidence. It is clear that such a comment by the court would have been a comment upon the evidence which a federal court might properly make. Yet to hold that prejudicial error resulted from a failure to make such a comment would, we think, require an improper assumption of a degree of ignorance on the part of the jury with which we think the jury cannot properly be charged. We think that the record on the whole discloses that the jury was not misled as to the significance of the atrocity evidence received and that it must have understood that the evidence was received because of its bearing upon the question submitted in the instructions as to whether the coercion or compulsion was “of such a nature as to induce a well grounded apprehension of death or serious bodily injury if the act is not done.” All the requirements of fairness to the appellant were met when she was permitted to introduce such testimony and from it argue to the jury that it had a bearing upon what she necessarily understood Takano to mean when he said: “You know what the consequences are.” Appellant requested the giving of the following instruction: “If you find that the defendant did the acts charged in the indictment, but entertain a reasonable doubt as to whether or not she was acting under fear of bodily injury, beating or the like, then you must find the defendant not guilty.” This proposed instruction No. 98 was one of the 128 listed in the manner previously mentioned. There was no error in refusing to give this instruction not only because it omits the required element of immediacy in connection with her fear of bodily injury, but the element of reasonable apprehension of injury was adequately covered in the instructions as given. It is noted that the charge (see footnote' 11, supra), referred to coercion or compulsion present, immediate and pending “of such a nature as to induce a well grounded apprehension of death or serious bodily injury if the act is not done.” The jury were told that if they believed that the defendant committed these acts “under a well grounded apprehension of immediate death or serious bodily injury, to be inflicted by any particular person or agent of the Japanese Government * * * you would be warranted in finding that the defendant committed the alleged acts under coercion and compulsion, and under those circumstances it would be your duty under the law to return a verdict of not guilty.” In view of that instruction, we cannot hold the failure to give the requested instruction No. 98 quoted above to be prejudicial. The court may properly refuse requested instructions which, in substance, have been covered in the court’s charge. May v. United States, 84 U.S.App. D.C. 233, 175 F.2d 994; Nye & Nissen v. United States, 9 Cir., 168 F.2d 846, affirmed 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919. Elsewhere in the instruction the court charged the jury: “This brings us to a consideration of what effect, if any, duress, coercion or compulsion may have upon the acts of a person charged with a crime. You will note that during my charge to you I use the expression ‘if you find that the defendant committed these acts’, and, of course, that means that they must be in law, voluntary acts, that is, acts that were done purposefully, freely, and that they were intended and unconstrained.” In our opinion, the instructions of the court contained on the whole an adequate statement of the law relating to duress and coercion, and they were in our opinion as favorable to appellant as she had the right to demand. Appellant argues that although the court received some evidence of the character herein mentioned, it erred in refusing to admit additional evidence (1) of duress on others, some of which was communicated and some of which was not communicated to appellant, (2) that the entire broadcasting staff of Radio Tokyo was in'a state of fear; and (3) that appellant’s neighbors made unfriendly demonstration against her. We have previously noted that the court received a substantial amount of evidence of this same character. Appellant asserts that since the question of her reasonable apprehension of danger could only be judged in the light of all the relevant circumstances that the jury could not properly consider her situation in respect to the claimed duress unless they were permitted to weigh the cumulative effect of all such evidence. Therefore, appellant says, it was error for the court to receive some items of evidence of this character and exclude others. We have examined with considerable care the items of evidence thus rejected by the court. It was within the discretion of the trial court in passing upon the admissibility of this atrocity evidence and related matters to hold that in order that it be relevant as bearing upon the state of mind of appellant, and upon the question of her reasonable grounds for apprehension, that it must have been communicated to her. Testimony of what happened to prisoners of war in South Burma in 1942 if not known to appellant would be of very doubtful significance in respect to any question before the court. Appellant argues that evidence of the treatment of prisoners of war by the Japanese, even although not communicated to appellant, would be relevant in showing that “the Japanese actually imposed the death penalty for trivial offenses; it tends to show fears well grounded that such a fate would also befall one in her position.” We believe that the logical relevance of such testimony would be so doubtful that it was properly within the discretion of the presiding judge to draw the line where he did. The trial judge was in a much better position than any appellate court could be to determine whether this line of testimony was likely to get out of hand and mislead the jury unless held within reasonable bounds. Had appellant been permitted to introduce evidence of Japanese atrocities and mistreatment of prisoners without limitations as to whether appellant knew or did not know of the circumstances related, it might well have led to a situation in which the jury were given the impression that appellant was undertaking to prove that all Japanese were cruel, savage and sadistic and hence that she had the right to fear them all. Thus appellant sought to introduce an exhibit “W” which purported to be the orders given to Wake Island prisoners, on the occasion of their being transported by boat to another prison camp. The substance of the regulations was to the effect that disobedience of orders and instructions by the prisoners would be punished with death. The regulations contained numerous specific prohibitions such as walking without permission; touching the boat’s materials, wires, etc.; climbing ladders without order; running away from the boat; trying to take more food than allowed, etc. Even if appellant had known of these regulations, their relevance would be doubtful for her position as a civilian broadcasting employee was so different from that of a prisoner being transported by ship that this exhibit would be properly rejected in any event. As a bit of evidence of Japanese ruthlessness not communicated to appellant, it was clearly improper. The greater part of the exclusionary rulings with respect to this type of evidence were made upon the simple ground that when offered it had not been shown that the incident sought to be testified to had been communicated to the appellant. When that situation appeared, the court properly held that a proper foundation for its introduction had not been -laid. Since the court properly held that such evidence would be relevant only if communicated to the appellant, the trial court’s discretionary power to control the order of proof warranted his requirement that -before such evidence be received it be established that the .¿acts were communicated to the appellant. For this reason we think that numerous of the exclusionary rulings of which appellant complaints were altogether proper. Other rejected evidence which appellant asserts should have been received was clearly irrelevant under any theory Some of the objections to the court’s rulings excluding offered evidence appear to be somewhat trivial. J Another group of rulings compia¡ne¿ 0f amounted to no more than a refusal of the judge to permit a repetition of testimony previously given by the same witness. The sustaining of such objection cannot possibly be prejudicial. Other rulings which are related to matters involving the order of proof were the sustaining of objections to certain questions which were objected to as not proper cross examination. It appears to us that the objections in these cases were properly sustained on that ground, and hence that appellant is in no position to allege prejudice. We conclude that there was no prejudicial error in the court’s rulings with respect to the receipt of evidence of the character here discussed. 10. Public trial. The Government introduced exhibits 16 to 21 which were phonograph records made by persons recording and monitoring what was said on the Zero Hour broadcast when appellant was broadcasting. The exhibits were used for the purpose of identifying the sound of the appellant’s voice. The records when played were inaudible without earphones and hence the Government provided about 40 earphones for the judge, jury, clerk, court reporter, appellant, counsel and members of the press. Appellant objected that this procedure denied her a public trial in that the public spectators could not hear the exhibits. A similar contention was rejected in Gil-lars v. United States, supra, and we think correctly. Essentially the records were exhibits and we think that appellant might as logically argue that she was denied a public trial because certain exhibits such as photographs, samples of handwriting, etc., although examined by the parties and by the jury were not passed around to the spectators in the courtroom. We think that the contention as to lack of public trial is wholly without merit. 11. Geneva Convention. Appellant complains of the failure of the trial court to give instructions relating to the Geneva Convention and to the fact that under that Convention a nation at war may require its prisoners of war to perform “work indirectly related to the war effort.” The claim was that if the jury should find that the broadcasting activities only indirectly related to the Japanese war effort then none of the overt acts charged could be an overt act of treason within the meaning of the Constitution. The first difficulty about the application of the Geneva Convention to acts performed by appellant is that appellant was not one of the persons referred to in that Convention, which refers only to prisoners of war. Appellant was not 'in that category; she was an uninterned civilian. We think that the Geneva Convention did not change the law of treason. If the overt act performed by appellant was such as to give aid and comfort to the enemy, the fact that the the enemy could have legally demanded a similar act under the terms of the Convention is irrelevant. It is essential to the crime of treason that the overt act be committed with the intent to betray the United States. Appellant says that unless the act itself is criminal, “no intent can turn it into treason”. Such is not the law. “The very minimum function that an over act must perform in a treason prosecution is that it show sufficient action by the accused, in its setting, to sustain a finding that the accused actually gave aid and comfort to the enemy.” Cramer v. United States, 325 U.S. 1, 34, 65 S.Ct. 918, 934, 89 L.Ed. 1441. The overt acts in the Haupt case (Haupt v. United States), 330 U.S. 631, 67 S.Ct. 874, 91 L.Ed. 1145, consisted of the accused’s furnishing food,lodging, transportation and employment to his son. Certainly these acts of parental solicitude are not criminal. However, the fact the son was a German saboteur, known as such to his father who had expressed his admiration for the Nazis and antipathy towards the United States, in addition to these overt acts, were held to constitute sufficient basis to sustain a conviction for treason. We think the court did not err in its ruling upon this point. 12. Claimed misconduct of prosecutor. Appellant asserts that on numerous occasions during the trial, Government counsel were guilty of such serious misconduct that the record in respect to this requires a new trial. These claims of misconduct relate to alleged misstatements of the record during the argument to the jury; alleged misstatements of the testimony of other witnesses which were incorporated in questions propounded to appellant and in arguments made to the jury asserted to exceed the bounds of propriety. Thus, .it is said, that Government counsel in argument -to the jury misstated overt act No. 6 as follows: “That was in October, 1944. Overt act 6. She unhesitatingly, unequivocally, denies broadcasting those words or anything like it. Well, you can understand why she refuses