In re Territo

• Decision Date: 08 June 1946
• Docket Number: No. 11214.,11214.
• Citation: 156 F.2d 142
• Parties: In re TERRITO.
• Court: U.S. Court of Appeals — Ninth Circuit

156 F.2d 142 (1946)

In re TERRITO.

No. 11214.

Circuit Court of Appeals, Ninth Circuit.

June 8, 1946.

J. Edward Keating, Benjamin W. Henderson, and William B. Gilroy, all of Los Angeles, Cal., for appellant.

Charles H. Carr, U. S. Atty., and Mildred L. Kluckhohn, Asst. U. S. Atty., both of Los Angeles, Cal., for appellee.

Before STEPHENS, BONE and ORR, Circuit Judges.

STEPHENS, Circuit Judge.

Gaetano Territo is being held by officers of the United States Army under the claim that he is a prisoner of war. Through the interposition of Frances Territo Di Maria, Territo petitioned the District Court to issue the writ of habeas corpus by which the restraining officer should be required to produce Territo in court and justify the restraint. It is alleged that the restraint is without legal support. We shall refer to Territo by name or as petitioner. The basis of the claimed illegal detention and restraint rests upon the allegation that petitioner was born in the United States and that at all times has been and is an American citizen.

The District Court issued an order to show cause why a writ of habeas corpus should not issue, and the restraining officer made his return and answer, setting out inter alia that Territo was captured in Italy upon the field of battle, and that he was at the time of capture a soldier in the enemy Italian Army, and that he now holds him as a prisoner of war in the district over which the District Court for the District of Southern California has jurisdiction.

Thereafter, it was stipulated that the issues of the controversy, as revealed in the petition for the writ of habeas corpus, and the return and answer, should be tried at the hearing on the order to show cause without the issuance of the writ. The stipulation did not, in terms, provide that the allegations in the return and answer should be deemed denied, but the proceedings thereafter and in this court are based upon that premise.

Petitioner appeals from the judgment.

The court found, in brief:

I. Petitioner was born April 20, 1915, in West Virginia of Italian citizen parents, and resided there until about 1920, when his father took him to Italy, where he resided until September 5, 1943.

II. Until 1939, when his father told him he was born in the United States, he did not know where he had been born.

III. In 1936 petitioner served six months in the Italian Army and again in 1940, at which time he told army authorities he was born in the United States of America. (Petitioner claims this finding is incomplete; that he was impressed into the Italian Army, and that he informed army authorities he was an American citizen, but was afraid to press his claim.)

IV. Petitioner served in the Italian Army as private in army engineers corps, doing manual labor.

V. He was captured by the United States Army on July 23, 1943, at Cotrano, Sicily, while Italy and the United States were at war. When captured he was wearing part of the Italian Army uniform and attempting to escape on the field of battle by running with others away from the United States Army.

VI. Petitioner was held as a prisoner of war, then taken to Bizerte, then taken to the United States, arriving September 5, 1943, and is now held as prisoner of war by the United States Army authorities.

VII. Petitioner's presence in the United States has not constituted residence; that his permanent residence is in Italy where he resided with his wife and child. He so stated to American military authorities when captured. (Petitioner claims that the finding to the effect that his presence in the United States does not constitute residence is a conclusion rather than a finding of fact. He further claims that the evidence does not support the finding that he stated to American authorities that his permanent residence was in Italy.)

VIII. Upon arrival in the United States he told military authorities he was born in Welch, West Virginia, April 20, 1915.

IX. Since arrival in the United States he has been held as prisoner of war by American Army authorities, and at the time of filing the petition in habeas corpus he was at Wilmington, California.

X. That while being held at Camp Ross Figueroa at Wilmington, California, as a prisoner of war by American military authorities, petitioner voluntarily joined an Italian Service Unit; that said Italian Service Unit was made up of prisoners of war held in custody by American military authorities, who were allowed by them to work as laborers for eighty cents per day, and who were given additional privileges; that at all times during the time the petitioner was a member of the Italian Service Unit, he was being held as a prisoner of war by American military authorities for repatriation to Italy.

XI. That on August 1, 1945, a letter was directed to the Provost Marshal's Office in Washington, D. C., by J. Edward Keating, requesting release of petitioner upon the ground that he was born in the United States and was a citizen thereof; that on August 8, 1945, A. M. Tollefson, Col. CMP., Director Prisoner of War Operations Division, Provost Marshal General's Office, Washington, D. C., replied to said letter advising that petitioner would not be released on the ground only that he is being held as a prisoner of war by American military authorities for repatriation to Italy.

XII. That the true cause of petitioner's detention in the custody of respondent and American military authorities is that petitioner was captured as a prisoner of war while serving in the Italian Army on the field of battle by the United States Army in Sicily, a part of Italy at a time when the United States and Italy were at war and in open conflict, on or about July 23, 1943; that thereafter, pursuant to the treaty of the United States with Italy, known as the Geneva Convention, relative to the treatment of prisoners of war, petitioner was for the convenience of the United States Government and to effectuate the purposes of said treaty, sent to the United States as part of the army program for the treatment of such prisoners, and because it was impracticable at the time to retain petitioner in custody as a prisoner of war within the physical confines of Italy; that he has been retained as a prisoner of war since July 23, 1943, up to and including the present time and is now being held as such prisoner of war; that petitioner has never been released by the United States military authorities from their custody as a prisoner of war.

(Petitioner rightly claims that a statement in X. is erroneous in that he enrolled in the Italian Service Unit at Fort Benning, Georgia, March 13, 1944.)

The court concluded:

I. That in conformity with Article I of the Geneva Convention by reference to the regulations annexed to the Hague Convention, Article III, a Treaty between the United States and Italy, petitioner was captured on the field of battle at a time when he was a member of the armed forces of a belligerent party, to-wit, Italy, and at a time when the United States and Italy were at war and in open conflict; and then and there was legally taken on July 23, 1943, a prisoner of war under the Geneva Convention by the United States Army, and the capture and retention of the petitioner by the military authorities of the United States was and is in accordance with the provisions of the said Geneva Convention.

II. That Italian Service Units are in no manner a part of the armed forces of the United States or any allied country; that they were organized as labor battalions for the purpose of allowing those prisoners of war so desiring an opportunity to work for pay and to obtain more privileges; that Italian Service Units are labor battalions formed under authority of the Geneva Convention and composed entirely of prisoners of war of Italy being held in the United States by American military authorities; that those prisoners of war voluntarily joining Italian Service Units do not cease to be prisoners of war.

III. That petitioner, upon voluntarily joining an Italian Service Unit, did not cease to be a prisoner of war and remained in the custody of the American Military authorities as a prisoner of war at all times since being captured on July 23, 1943; that petitioner has never been released by the American military authorities as a prisoner of war and at the present time is being held as a prisoner of war by American military authorities.

IV. That it is immaterial to the legality of petitioner's detention as a prisoner of war by American military authorities whether petitioner was a combatant or noncombatant member of the armed forces of the Italian army.

V. That it is immaterial to the legality of petitioner's detention as a prisoner of war by American military authorities whether petitioner is or is not a citizen of the United States of America.

VI. That under the Geneva Convention, petitioner's capture as a prisoner of war by American military authorities was valid and legal; that his detention by American military authorities and respondent herein has been and at all times is legal and valid as an Italian prisoner of war; that under the Geneva Convention, it is the obligation of the United States through the American military authorities to repatriate petitioner to Italy.

VII. That the Petition for a Writ of Habeas Corpus should be denied and the petition be dismissed.

Petitioner claims that conclusions of law II. and III. are not supported by the evidence, and that V. is erroneous in holding petitioner's claim to United States citizenship is immaterial as he makes no claim that he is entitled to be released unless he is, in fact, an American citizen. As to conclusion VI., petitioner claims the Geneva Convention was not intended to cover instances such as is here presented.

Petitioner claims on appeal, as he claimed in the district court, that he is and always has been an American citizen and because of that fact the circumstances of the case do not make him legally a...