190 F.2d 506 (9th Cir. 1951), 12061, Tomoya Kawakita v. United States

Docket Nº:12061.
Citation:190 F.2d 506
Party Name:TOMOYA KAWAKITA v. UNITED STATES.
Case Date:June 22, 1951
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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190 F.2d 506 (9th Cir. 1951)

TOMOYA KAWAKITA

v.

UNITED STATES.

No. 12061.

United States Court of Appeals, Ninth Circuit.

June 22, 1951

Rehearing Denied Sept. 24, 1951.

No legal error is committed in imposing a severe sentence so long as it does not exceed the maximum set by statute.

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Morris Lavine, Los Angeles, Cal., for appellant.

Ernest A. Tolin, U.S. Atty., Norman W. Neukom, Robert J. Kelleher and Jack E. Hildreth, Asst. U.S. Attys., all of Los Angeles, Cal., for appellee.

Before STEPHENS, BONE and ORR, Circuit Judges.

STEPHENS, Circuit Judge.

Tomoya Kawakita appeals from a judgment of conviction and a sentence of death imposed after a United States District Court jury returned a verdict finding him guilty of treason against the United States of America. 13)I.

Appellant was born in Calexico, California, on September 26, 1921, of Japanese-born parents who were nationals of Japan. By virtue of his birth appellant was a citizen of the United States. United States Constitution, Amend. XIV, Sec. 1; United States v. Wong Kim Ark, 1898, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890. By virtue of the nationality of his parents appellant was at birth a national of Japan. Kiyoshi Hirabayashi v. United States, 1942, 320 U.S. 81, 97, 63 S.Ct. 1375, 87 L.Ed. 1774.

In 1939, at the age of 17, appellant applied for and was issued a passport and, with his father, went to visit his grandfather in Japan. The father returned to the United States but the son remained in Japan and attended a preparatory school

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for 'Niseis', or persons born in the United States of Japanese parents. In March, 1941, appellant entered Meiji University in Japan where he took a course in commerce and also received military training. In April, 1941, he renewed his passport. Although war broke out between Japan and the United States in December, 1941, he remained at the University, completed his course of study and graduated. Although of military age and, so far as the record goes, physically fit, at no time did he enter or serve in the armed forces of Japan and there is nothing in the record to indicate that he tried to enter the armed forces or that the Japanese government did anything toward bringing him into its armed forces. While at the University he was registered as a foreigner or alien at the local police station. In 1943, through his uncle Yazaemon Kawakita, he applied for and received permission as of March 8, 1943, to have his name entered in the family register, or 'koseki tohon'.

Upon graduation from the University, appellant requested assistance from one Takeo Miki, a member of the Japanese House of Representatives. Miki, a friend of the father's, had been furnishing appellant with financial assistance during his schooling. Miki assisted in obtaining employment for appellant as an interpreter with the Oeyama Nickel Industry Company, Ltd., 1 the employment beginning in August, 1943, and continuing until after the surrender by Japan on August 10, 1945.

The company with which appellant was employed was a private corporation, engaged in mining, milling, producing and processing metals for munitions and for other uses. Adjoining the factory, located at Oeyama in Kyoto Province on the west side of the Japanese Island of Honshu, was a prisoner-of-war camp, supervised and directed by Japanese military personnel. About ten or twelve miles from the prisoner-of-war camp was a surface mine where the prisoners-of-war were required to work from time to time. Medical attention was furnished the prisoners by a British and an American Army doctor, both prisoners-of-war, in a barracks set aside as a 'hospital'. Appellant began his employment in the camp in August of 1943, and shortly thereafter British and Canadian prisoners-of-war arrived. His duties consisted of interpreting between the British and Canadian prisoners-of-war and the Japanese military foreman in charge of the camp.

In 1944 and early in 1945, approximately four hundred American prisoners-of-war arrived at the camp. These consisted primarily of men who had been captured on Bataan early in 1942. As a result of approximately two and one-half years of inadequate diet, confinement and hard work, all of the Americans were underweight and were suffering from malnutrition and a variety of other ailments.

The work done at the mine by the American prisoners consisted of digging nickel ore from the face of the mountain side, and loading it onto cars which were emptied into hoppers. The prisoners also performed other general labor in the mine area, including such duty as carrying logs to be used for construction and maintenance work.

The overt acts upon which the treason charges in the indictment are based were alleged to have occurred during the period from August 8, 1944, up to and including August 24, 1945.

After the Japanese surrender on August 10, 1945, the camp was turned over to the Americans. Thereafter it appears that Kawakita performed some service for the Americans, being of assistance particularly because of his knowledge of the English language. While he remained in Japan during the post-war period he was not charged with having committed any acts of treason.

In December of 1945, appellant went to the United States consul in Yokohama to inquire about his United States citizenship: There he made an 'Application for Registration', in which he stated that he was a United States citizen, that he had not been naturalized as a citizen of a foreign state

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and that he had not taken an oath of allegiance to a foreign state. Before a foreign service officer he swore allegiance to the United States.

On the same date he signed a document entitled 'Affidavit by Native American to Explain Protracted Foreign Residence' in which he stated: That he had come to Japan to study Japanese; had graduated from Meiji University; that he possessed 'dual nationality', Japanese as well as American from birth, but that his name was not entered in his uncle's census register until March 8, 1943.

The foreign service officer who took appellant's affidavit concluded that ' * * * He has presented evidence deemed satisfactory to overcome presumption of expatriation.' We set out the officer's findings of fact in the margin. 2

On June 19, 1946, appellant applied for a United States passport and again took an oath of allegiance to the United States. He also swore to an 'Affidavit to Overcome Presumption of Expatriation', in which he stated that his reason for foreign residence since his registration on December 31, 1945, was to await transportation to the United States. He affirmed that since January 13, 1941, he had not entered, or served in, the armed forces of any foreign state and that he had not accepted or performed the duties of any office, post, or employment under the government of any foreign state or political subdivision thereof for which only nationals of such state were eligible.

He was issued a United States passport on June 20, 1946, and departed Japan on or about August 2 or 3, 1946, enroute to the United States.

On his return to the United States appellant went to live with his father in Los Angeles, California, where he enrolled at the University of Southern California as a student.

In October, 1946, he visited a store in Los Angeles, and William Bruce, who had been a prisoner-of-war at Oeyama, in the store at the time, recognized appellant as one who had served the Japanese at the camp, and reported that fact to the authorities.

On June 5, 1947, appellant was arrested by an agent of the Federal Bureau of Investigation in Los Angeles and arraigned before a Commissioner on the same day. An indictment charging him with treason was returned by the United States Grand Jury on June 11, 1947, to the United States District Court for the Southern District of California. 3 Fifteen overt acts of treason

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were charged. The text of those found to have been committed is set out in the margin. 4 We briefly relate them further on in this opinion.

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Kawakita entered a plea of 'Not Guilty' to all of the charges made.

The trial began on June 18, 1948. The jury 5 retired to deliberate on August 25, 1948. After deliberations began, the court received numerous communications from the jury to the effect that no unanimous verdict could be reached together with requests that the jury be discharged. The jury was requested to continue deliberations. On September 2, 1948, the jury returned a general verdict of guilty and special verdicts of guilty as to overt acts (a), (b), (c), (d), (g), (i), (j), (k). The jury was unable to reach a unanimous verdict as to overt acts (e), (f), (h), (l) and (o). Allegations as to overt acts (m) and (n) were withdrawn by the Government.

The trial judge imposed the death sentence.

II.

Did Kawakita Owe Allegiance to The United States?

The definition of treason is a part of the supreme law of the land. United States Constitution, Article III, Sec. 3, provides: 'Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. * * * '

Title 18 U.S.C.A. § 1, Act of March 4, 1909, c. 321, Sec. 1, 35 Stat. 1088, as it stood at the time of the alleged overt acts, provided: 6'Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason.'

By definition, the crime of treason can only be committed by one owing allegiance to the United States. It is appellant's contention that at the time the acts charged in the indictment were committed...

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