United States v. Kunz

• Citation: 163 F.2d 344
• Decision Date: 28 July 1947
• Docket Number: Docket 20656.,No. 286,286
• Parties: UNITED STATES v. KUNZ.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

163 F.2d 344 (1947)

UNITED STATES v. KUNZ.

No. 286, Docket 20656.

Circuit Court of Appeals, Second Circuit.

July 28, 1947.

George C. Dix and David S. Kumble, both of New York City, for defendant-appellant.

John F. X. McGohey, U. S. Atty., of New York City (John F. Ryan, Asst. U. S. Atty., of New York City, of counsel), for plaintiff-appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The appellant Kunz first came to this country in 1928 and was naturalized on August 26, 1937. He joined the New York Unit of the German-American Bund in December 1938 and played a prominent role in Bund activities until his conviction, in the fall of 1941, in the District Court for the Southern District of New York on a charge of conspiracy to violate the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq. While serving his sentence following that conviction, denaturalization proceedings were instituted against him, along with nineteen other defendants, on the ground that he had perpetrated a fraud at the time he took his oath renouncing all allegiance and fidelity to his homeland and agreeing to support and defend the Constitution and the laws of the United States against all enemies. He filed an answer and was represented at the trial by an attorney appointed by court. Judge Bright, in an opinion reported in 49 F.Supp. 407, denied motions made by him and ten of the other defendants to dismiss the complaint, and subsequently entered judgment effecting denaturalization. Kunz did not appeal from the judgment and his time to appeal has long since expired. Four of his co-defendants appealed, and the denaturalization decrees against them were reversed by this court. See United States v. Sotzek et al., 2 Cir., 144 F.2d 576. The reversal by this Court was based primarily on the decision of the Supreme Court in Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525, which was decided during the pendency of the appeal. The Court there held that evidence of a man's attitude in political matters at a period many years subsequent to his naturalization does not afford sufficient proof that on the earlier occasion he was committed to those views and hence a fortiori it is no proof that he had any mental reservation at the time of taking his oath of naturalization. Kunz's conviction of conspiracy to interfere with the Selective Service Law was reversed along with that of others by the Supreme Court on June 11, 1945, in Keegan v. United States, 325 U.S. 478, 65 S.Ct. 1203, 89 L.Ed. 1745. On July 15, 1945, defendant was released from prison and has since been in the custody of the Immigration and Naturalization authorities. While Kunz was thus interned, he requested Judge Bright to appoint counsel for him, and this was done. On October 26, 1945, he filed a petition termed "in the nature of a bill of review" to vacate and set aside the decree of denaturalization; this motion or bill of review was denied by Judge Bright in a decision dated May 28, 1946, reported in D.C., 5 F.R.D. 391. Kunz appealed from that decision and, at his request, this court appointed the attorneys who had represented him in the district court as his counsel on appeal. While the appeal was pending, his counsel made a further motion for an order vacating the denaturalization decree on the ground of newly discovered evidence claimed to indicate extrinsic fraud in the denaturalization proceedings. This further motion was also heard by Judge Bright and was denied in an order dated April 18, 1947. It is from these two orders that the present appeal has been taken.

Judge Bright has dealt with all of the defendant's contentions in careful opinions to which perhaps nothing needs to be added. The real complaint of Kunz, though he makes numerous technical points, is that he might have secured a reversal of the decree of denaturalization if he had taken an appeal. He was in custody while his time to appeal was running and he says that rendered appealing impracticable. But he could have had a lawyer assigned to prosecute his appeal if he could not have obtained one himself. Difficulty in obtaining counsel — if such difficulty existed — did not cure his failure to appeal. The fact probably is that neither he nor his Bund associates set much value on American citizenship until the war was over, Germany ceased to be a good place to live in, and they were held for deportation.

It is hard to see how the defendant's motion based on alleged newly discovered evidence was properly made, since an appeal from the order denying his other motion was still pending and no showing has been made that the case had been remanded by this court so that the new motion might be considered. But irrespective of this technicality, we cannot discover any merit in either of the motions which Judge Bright denied.

The defendant's first motion in the nature of a bill of review was based upon the claim that the court was in error in granting a decree of denaturalization and that the error was apparent on the face of the record as well as by an examination of the pleadings and findings. This contention is...