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affixed G erman swastikas to t he fuselage,
and sent the plane to Germa ny.
At first, the G ermans were suspi-
cious of Monti. They soon decided, how-
ever, that he was the “real deal.” In
November 1944, they enrolled him as a n
SS-Unterst urmführer (second lieutenant)
in SS-Standarte Kurt Eggers, a Waffen-SS
propaganda u nit.
Monti began broadcasting English-
language propag anda on the radio. He
tried to persuade GIs listen ing to his
broadcasts “all over the Europea n the-
ater” that America ns should be fighting
with Germa ny against the Soviet Union,
as Communist Russia wa s the “true en-
emy of world peace.”
In April 1945, with defeat imm inent
and Germany need ing all its assets on the
front lines, SS-Untersturmführer Monti
was ordered to join a combat unit in
northern Italy. A month later, Monti sur-
rendered to the U.S. Fifth A rmy in Milan.
In the weeks that followed, Monti was
interrogated by a series of Ar my intelli-
gence agents. He freely admit ted that he
had left his unit in K arachi but claimed
that “he had done so in order to wage
a one-man war aga inst the Germa ns.”
Monti also admitted t hat he had wrong-
fully appropriated the ai rplane in Naples,
but only to take the fight to t he Luftwaffe.
As for the Waffen-SS unifor m that he was
wearing when he surrendered, Monti
explained that he had been shot down
and taken prisoner by the Ger mans. He
claimed to have been in Ger man prisoner-
of-war camps until he mana ged to escape.
He then received help from Italian par ti-
sans, who dressed hi m in a German uni-
form so that he could more easily travel
through Axi s-held territory and ret urn
to Allied lines.
The Army did not buy his imag inative
cover story and, in May 1945, charg ed
him with desertion and wit h “wrongf ully,
knowingly and willfully” misappropri-
ating “one P-38 aircraft .” A few months
later, he was tried and convicted by a
general court-martia l in Naples. Monti
returned to Amer ican soil and was serv-
ing time in an A rmy prison in New York
when the Army offered hi m the chance
to get out of jail if he would reenlist as a
private. No doubt realizing th at rejoining
the Army was preferable to f inishing his
long jail sentence, Monti returned to t he
ranks in Februar y 1946. Two years later,
Monti was wearing sergea nt’s stripes.
Meanwhile, Ar my intelligence opera-
tives were going t hrough thousands a nd
thousands of pages of capt ured German
documents. Soon, these men discovered
references to SS-Untersturmführer Monti
and his activ ities while in the Waffen-SS.
With this evidence in ha nd, the Department
of Justice moved quickly, and in October
1948, Sergeant Monti was indicte d by a
federal grand jur y in the Eastern District
of New York for the crime of treason; the
indictment alleged 21 overt ac ts.
In January 1949, Monti appeared in the
U.S. district cour t in Brooklyn, New York.
He had previously entered a not-guilty
plea to the crime. Now, standing before
Chief Judge Robert A. Inch, Monti wit h-
drew this plea and infor med the judge
that he desired to plead guilt y.
The U.S. Constitution states t hat “No
Person shall be convicted of Trea son un-
less on the Testimony of two Witness es
to the same overt Act, or on Confes sion
in open Court.” Mindfu l of this require-
ment, Monti was advised of his r ights,
was sworn, took the sta nd, and confessed
in open court that he had volunta rily
performed acts constit uting the crime of
treason, including t he various overt acts
alleged in the ind ictment. Chief Judge
Inch found Monti guilt y and sentenced
him to 25 years in jai l and a $10,000 fine.
Why did Monti withdraw his not-
guilty plea? Why did he not demand t rial
on the merits? It seems that Monti’s at-
torneys believed that if they went to t ri-
al, their client would likely be sentenced
to death, or at least life impri sonment,
given the facts a nd circumstances of the
treason and the ag gravating factor that
Monti had been an Army of ficer. As a
result, Monti’s two defense counsel told
him that he should plead guilt y and throw
himself on the mercy of the cou rt. This
would avoid death or life imprisonment,
and while Monti could expect a “severe”
sentence, it would not be more than 30
years. When Chief Judge Inch sentenced
Monti to 25 years in jail, Monti should
have understood that he had received
good lega l advice.
Monti served his sentence at the U.S.
Penitentiary in Leavenwort h, Kansas. He
was paroled from Leavenworth i n 1960,
after serv ing 11 years of his sentence. He
resettled in his home st ate of Missouri and
died there in 2000. He was 78 year s old.
The court-mar tial of Lieutenant Mont i,
his restoration to active dut y, and his sub-
sequent treason tria l in U.S. district court
are a unique set of events in lega l history.
Certainly, his tr ial in federal court sta nds
out as probably the only America n trea-
son case involving a confession—t he sin-
gle exception to the two-witness r ule in
treason cases. q
ETHICS
Threatening
Litigation
BRUCE GREEN
The author is the director of the Louis Stein Cen-
ter for Law and Ethics, Fordham University
School of Law.
In Ferster v. Ferster, [2016] EWCA (Civ)
717, three disputatious brothers owned a n
English Internet ga ming company. Two
teamed up to cause the company to sue
the third, Jonatha n, for breach of fidu-
ciary duty a nd then offered to resolve the
dispute by selling Jonathan t heir shares
in the company.
During mediation, t he two brothers’
counsel increased the sa les price and
threatened that if Jonatha n did not pay,
the brothers would accuse him of perju ry
