Hirabayashi v. United States, C83-122V.

• Citation: 627 F. Supp. 1445
• Decision Date: 10 February 1986
• Docket Number: No. C83-122V.,C83-122V.
• Parties: Gordon K. HIRABAYASHI, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Western District of Washington

627 F. Supp. 1445

Gordon K. HIRABAYASHI, Petitioner, v. UNITED STATES of America, Respondent.

No. C83-122V.

United States District Court, W.D. Washington.

February 10, 1986.

Rodney L. Kawakami, Arthur G. Barnett, Camden M. Hall, Michael Leong, Craig Kobayashi, Daniel J. Ichinaga, Benson D. Wong, Seattle, Wash., for petitioner.

Gene S. Anderson, U.S. Atty., Susan E. Barnes, Asst. U.S. Atty., Seattle, Wash., Victor D. Stone, Richard L. Edwards, Attys., General Litigation and Legal Advice Section, U.S. Dept. of Justice, Washington, D.C., for respondent.

MEMORANDUM DECISION

VOORHEES, District Judge.

Petitioner has filed a petition for a writ of error coram nobis, seeking the vacation of his conviction in October, 1942, for failing to report on May 11 or 12, 1942, to a designated Civil Control Station in Seattle, as required by Civilian Exclusion Order No. 57, and his conviction for failing, on or about May 4, 1942, to abide by Public Proclamation No. 3, requiring him to remain within his place of residence between 8:00 p.m. and 6:00 a.m.

Petitioner seeks to have these two misdemeanor convictions set aside on the ground that the government knowingly suppressed evidence favorable to him or presented evidence which it knew, or should have known, was false in order to secure those convictions or to defend them on appeal.

Testimony at petitioner's trial or at the evidentiary hearing on his petition indicated that at the time of the acts for which petitioner was convicted, he was a twentyfour year old senior at the University of Washington. He was at that time a native-born, American citizen, having been born in Seattle, Washington, on April 23, 1918. His parents had been born in Japan but had emigrated to the United States. His father had arrived in the United States in 1907, his mother in 1914. Both of his parents were nineteen when they came to the United States. They were married in this country. Neither had ever returned to Japan. Petitioner himself had never been to Japan and had never corresponded with any Japanese in Japan. Petitioner was educated in the public schools of King County and Seattle. He had been active in the Boy Scouts and had become a Life Scout and an Assistant Scoutmaster. He was also active in the Y.M.C.A. at the University of Washington. He had been vice president of that organization and had attended Y.M.C.A. conferences in other states as a representative of the University Y.M.C.A. He had never before been arrested on any charge. He testified at trial that his parents had taught him and his brothers and sisters that they were American citizens and how to conduct themselves as such; that he had not reported to the Civil Control Station nor remained in his residence during the curfew hours because of his honest belief that the evacuation and curfew orders were unconstitutional and violated his rights as an American citizen and that for him to obey them voluntarily would have been a waiver of his rights; that in the Boy Scouts and the Y.M.C.A. and at the University of Washington he had learned what was expected of him as an American citizen and what his rights were as an American citizen; and that he had at all times tried earnestly to conduct himself as a good American citizen.

At trial the Secretary-Manager of the University Y.M.C.A. testified that the petitioner had at all times conducted himself as a law-abiding American citizen, that he was a leader in the Y.M.C.A. and other student organizations and affairs; that he was well-respected by his fellow students; and that he bore a very fine reputation among the people of the community.

At trial there was evidence that petitioner had violated the curfew restriction on the single night of May 9, 1942.

After the issuance of Civilian Exclusion Order No. 57, which required petitioner to report on May 11 or May 12, 1942, to a designated Civilian Control Station in Seattle, he went with his attorney to the Seattle office of the F.B.I. and turned himself in. Although this is not clear on the record, petitioner must have stated to the F.B.I. that he was refusing to report to a control station. During his interview by an agent of the F.B.I. petitioner volunteered the information that for the past few nights in May he had not abided by the curfew restrictions imposed by Public Proclamation No. 3. The F.B.I. agent advised petitioner that no charges at all would be brought if he registered with the Civilian Control Station, but this, petitioner refused, as a matter of conscience, to do.

None of this testimony was challenged by the government either at petitioner's trial or during the hearing upon petitioner's application for a writ of error coram nobis. The government presented no evidence that petitioner was anything other than a law-abiding, native-born American citizen.

Petitioner was indicted in a two count indictment returned by a grand jury on May 28, 1942. Count I of the indictment charged that defendant had failed to report to a designated Civil Control Station on May 11 or May 12, 1942, as required by Civilian Exclusion Order No. 57, which was issued by the Military Commander of the Western Defense Command on May 10, 1942. Count II charged that on or about May 4, 1942, between 8:00 p.m. and 6:00 a.m. defendant was not within his place of residence, as required by Public Proclamation No. 3, which was issued by the Military Commander of the Western Defense Command on March 24, 1942.

Petitioner was tried on October 20, 1942, and was found by the jury to be guilty on each count. On the following day petitioner was sentenced to serve three months on each count, the two sentences to be served concurrently.

Petitioner's appeal was argued before the Supreme Court on May 10 and 11, 1943. The sentence of confinement imposed upon petitioner was affirmed by the Supreme Court on June 21, 1943. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943).

In affirming the sentence imposed upon petitioner, the Supreme Court considered only the charge in the second count, the one that charged petitioner with violating the curfew restrictions of Public Proclamation No. 3.

In an opinion authored by Chief Justice Stone, the Supreme Court stated:

The conviction under the second count is without constitutional infirmity. Hence we have no occasion to review the conviction on the first count since ... the sentences on the two counts are to run concurrently and conviction on the second is sufficient to sustain the sentence. 320 U.S. 81 at 105 63 S.Ct. at 1387, 87 L.Ed. 1774 at 1788.

In consequence, the conviction of petitioner on the first count (the failure by him to report to a Civil Control Station) has never been reviewed upon appeal. (His conviction on both counts had been appealed by him to the United States Circuit Court for the Ninth Circuit, but that court certified the entire record to the Supreme Court and did not itself act upon the appeal.)

In determining whether petitioner's convictions should be vacated, the Court has carefully considered the record of petitioner's trial, the arguments made by the government in the brief submitted by it to the Supreme Court, the reasoning of the Supreme Court in its affirmance of the sentence imposed upon petitioner, the testimony of those who were called as witnesses at the hearing upon petitioner's petition, the voluminous exhibits which were admitted into evidence at the hearing, and the arguments made by counsel for petitioner and for the government in their post-hearing briefs.

The Court will first consider the conviction of petitioner for his failure to report to a designated Civil Control Station on May 11 or May 12, 1942.

The background of Civilian Exclusion Order No. 57 is, in brief, as follows: after the attack on Pearl Harbor on December 7, 1941, President Franklin D. Roosevelt issued Executive Order 9066, on February 19, 1942. That order authorized the Secretary of War or his designees to prescribe military areas from which any or all persons might be excluded. On February 20, 1942, Secretary of War Henry Stimson delegated his authority under Executive Order 9066 to Lieutenant General John L. DeWitt, the Commanding General of the Western Defense Command.

On March 2, 1942, General DeWitt issued Public Proclamation No. 1. The proclamation divided the states of Washington, Oregon, California and Arizona into two military areas. The western portions of Washington, Oregon and California and the southern portion of Arizona were designated as Military Area No. 1. The balance of each of those states was designated as Military Area No. 2. On March 21, 1942, the President signed Public Law No. 503, which had been enacted by Congress. That law made it a misdemeanor knowingly to disregard restrictions made applicable by a military commander to persons in a prescribed military area.

On March 24, 1942, General DeWitt issued Civilian Exclusion Order No. 1. That order affected about fifty Japanese families, residing on Bainbridge Island, Washington, and provided for their evacuation from that island one week later. Thereafter, further exclusion orders were issued from time to time for the various zones in Military Area No. 1.

The order which affected petitioner was Civilian Exclusion Order No. 57, issued by General DeWitt on May 10, 1942. That order provided that from and after May 16, 1942, all persons of Japanese ancestry were excluded from a designated geographical area (this area included petitioner's place of residence) and required a responsible member of each family and each person living alone to report on May 11 or May 12, 1942, to a designated Civil Control Station in Seattle. The instructions which were posted with the exclusion order made it plain that reporting was for the purpose of receiving further instructions and that the excluded individuals were thereafter to be sent to an Assembly Center.

Because petitioner refused to report to the Civil Control Station, h...