138 F.2d 29 (8th Cir. 1943), 12525, Baumgartner v. United States

Docket Nº:12525.
Citation:138 F.2d 29
Party Name:BAUMGARTNER v. UNITED STATES.
Case Date:September 11, 1943
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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138 F.2d 29 (8th Cir. 1943)

BAUMGARTNER

v.

UNITED STATES.

No. 12525.

United States Court of Appeals, Eighth Circuit.

September 11, 1943

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John Rhodes, of Kansas City, Mo. (Bowersock, Fizzel & Rhodes, of Kansas City, Mo., on the brief), for appellant.

Maurice M. Milligan, U.S. Atty., of Kansas City, Mo. (Richard K. Phelps, Asst. U.S. Atty., of Kansas City, Mo., on the brief), for appellee.

Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.

RIDDICK, Circuit Judge.

This is an appeal from a judgment of a federal district court setting aside a previous order of the court admitting the appellant, Carl Wilhelm Baumgartner, to citizenship, and cancelling his certificate of naturalization. The action is brought under the Nationality Act of 1940, 54 Stat. 1137, 1158, 8 U.S.C.A. 738. The allegations of the complaint are that, at the time he took the oath of allegiance to this country, the appellant reserved his allegiance to the country of his birth, the German Reich, and did not in good faith renounce that allegiance nor assume, without reservation, the obligations and responsibilities of American citizenship.

The trial court found as a fact that at the time the appellant took the oath of allegiance to this country he accepted as sound and believed to be righteous the principles of government then advocated and thereafter put into practice by Adolph Hitler, and that his real loyalty was to those principles, which the court found to be diametrically opposed to those of the government of the United States. The court found that appellant's oath at the time of his naturalization that he renounced all fidelity to the German Reich and that he would bear true faith and allegiance to the Constitution and laws of the United States was falsely made. On these facts, the court concluded as a matter of law that the order admitting the appellant to citizenship and the certificate of citizenship granted him were obtained by fraud.

For reversal, the appellant contends that the court erred in the findings of fact and conclusions of law stated above.

Appellant was born in Germany on January 20, 1895. At the age of 19, after graduation from a German high school, he enlisted in the German army. He served on the western front in World War I, until his capture by the English in April 1917 after he had attained the rank of second lieutenant in the field artillery of the German army. Following his capture, he was taken to England where he remained a prisoner of war until 1919. On his return to Germany, he entered the University of Darmstadt, where he continued his studies until the summer of 1925, graduating with a degree equivalent to that of electrical engineer granted by American universities.

After his marriage in Germany in January, 1927, appellant came to this country, arriving at the port of New York on the 9th day of February, 1927, where he was lawfully admitted. On the 14th day of June, 1927, he executed his declaration of intention to become a citizen of the United States. On the 16th day of May, 1932, he filed his application for naturalization which was granted by a federal district court on the 26th day of September, 1932. The present proceeding was brought on the 21st day of August, 1942.

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In August 1927 appellant was employed by the Kansas City Power and Light Company, and he has remained continuously in the employment of that company, residing in Kansas City, Missouri, where he was joined by his wife in September, 1927. Their three children were born in Kansas City. After her arrival in this country, appellant's wife filed a declaration of her intention to become a citizen, but never pursued the matter to a conclusion. At the time of the trial appellant's family was in Germany, where, appellant testified, they had gone for the purpose of visiting his wife's parents intending to remain for a period of six months or one year. After their arrival in Germany, the present war began, and, although appellant's wife wished to return to this country, appellant concluded that his family would be as safe in Germany as here. Because of the dangers of the return trip, as well as because of the expense, they have never returned.

At the trial the Government offered the testimony of expert witnesses concerning the principles of government advocated and established in Germany under Adolph Hitler. No attempt was made by the appellant to deny the exposition of the philosophy of the government in force in Germany under Hitler and the National Socialist Party. The other evidence for the Government consisted of testimony of numerous acquaintances and associates of the appellant. The greater part of their testimony related to statements of appellant, hostile to this country and favorable to Germany, made throughout the period beginning after his naturalization and extending into the summer of 1941. There was also received in evidence a diary which appellant kept and in which he made frequent entries over a period beginning in 1938 and ending in July 1941.

According to the witnesses for the Government, appellant repeatedly expressed his disapproval of the manner in which the Government of this country was conducted. His immediate superior in the Kansas City Power and Light Company testified that within a day or two after appellant was employed by that concern he began to talk about Germany and the form of government existing there. This was in August 1927, years before appellant's naturalization. Appellant at that time expressed great admiration for and interest in the movement then represented by Hitler. His comparison of Germany and this country was so persistent and so unfavorable to the latter that it was necessary to transfer him from the department in which he was originally employed to another, in order to avoid trouble with other employees.

When Poland was invaded by Germany, appellant declared that Germany was justified in the invasion as it was necessary to protect the Poles from England. He took the same position with reference to Belgium, Czechoslovakia, Austria, and Norway. He expressed the opinion that it would be better for the United States to be governed by Germany than by the English, under whose domination he insisted this country was. On one occasion, in 1938, he said that, if this country were run by Adolph Hitler, it would be a great deal better country. He said that there was no doubt that Hitler would rule this country some day and make his home in New York. He maintained that regimentation under the Nazis was superior to democracy in this country. He ridiculed the American form of government and praised that in Germany under Hitler, declaring he was for Hitler 100 per cent. Expressing his opposition to the United States entering the war in Europe, he said it should make no difference to us in the final outcome if we were governed by Germany, as we would merely substitute that control for the control of the English, whose pawn this country was. He maintained that the democracies were on the way out. He said: ' * * * look at the American Army, look at the German Army; we go places now and the day will come that Germany will be the dominant war power and then America has to listen to Hitler.'

Appellant began keeping a diary on December 1, 1938, and the entries were made frequently until June 27, 1941. Some of the typical entries in the diary follow:

December 22, 1938: 'The only ones who have any ideas here are the Jews and their ideas are vile, mean, and malicious. ' On the same day, he noted that the answer of the American Government to the German protest against what he called the 'common insults' of Mr. Ickes was so arrogant and brazen that it must 'make the United States more unpopular and despised, not only in Germany but in the entire world, than it already has been without this.'

January 4, 1939: 'The speech was a horrible mixture of war agitation and laughable talk about the freedom of press, speech, etc., which this country allegedly has and which has to be protected with guns. ' Appellant was referring to the

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speech of the President of the United States delivered to the Congress.

February 14, 1939: 'Today Zeglin came through Kansas City on his trip to the German Consulates in the West. He is attached to the Consulate General in New York now. * * * It is Zeglin's task to see that the Consulates prevent German citizens from joining political organizations. ' The proof shows that Zeglin was a representative of the German government under Hitler. Appellant met him on a visit to Kansas City and spent the evening with him and took him to the bus station on his departure.

February 25, 1939, referring to a meeting of German-Americans which he attended: 'This Mr. Lagna opened the meeting with the German national anthem, whereupon everyone naturally arose and assumed the usual German stance with the arm extended to give the National Socialist greeting.'

March 2, 1939, the appellant attended a meeting in Kansas City. An assistant to the United States District Attorney was among those present. Appellant wrote in his diary with reference to this attorney: 'I think this fellow is a spy who tells the authorities everything that is going on in German American circles and who has set himself the task of seeing to it that the German herd of people continues to travel in the right direction. ' There are numerous entries in the diary in which appellant expressed the belief that persons attending meetings of German-American citizens were spies. In referring to the same attorney following another meeting of a German-American society, appellant noted in his diary that the district attorney 'came out openly against Germany.' Later he wrote that he had joined an association of all local German-American societies in order to keep a closer watch on this employee of the Department of Justice.

March 15, 1939, following the seizure of...

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