Iva Ikuko Toguri D'Aquino v. United States

• Decision Date: 10 October 1951
• Docket Number: No. 12383.,12383.
• Citation: 192 F.2d 338
• Parties: IVA IKUKO TOGURI D'AQUINO v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

192 F.2d 338 (1951)

IVA IKUKO TOGURI D'AQUINO v. UNITED STATES.

No. 12383.

United States Court of Appeals Ninth Circuit.

October 10, 1951.

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Wayne M. Collins, Theodore Tamba, George Olshausen and Marvel Shore, all of San Francisco, Cal., for appellant.

Frank J. Hennessy, U. S. Atty., San Francisco, Cal., James M. McInerney, Asst. Atty. Gen., Tom De Wolfe, James W. Knapp, Sp. Assts. to the Atty. Gen., for appellee.

Before HEALY, BONE and POPE, Circuit Judges.

POPE, Circuit Judge.

Appellant was convicted of treason against the United States. The indictment charged that she adhered to the enemies of the United States giving them aid and comfort by working as a radio speaker, announcer, script writer and broadcaster for the Imperial Japanese Government and the Broadcasting Corporation of Japan, between November 1, 1943, and August 13, 1945; that such activities were in connection with the broadcasting of programs specially beamed and directed to the American Armed Forces in the Pacific Ocean area; and, that appellant's activities were intended to destroy the confidence of the members of the Armed Forces of the United States and their allies in the war effort, to undermine and lower American and Allied military morale, to create nostalgia in their minds, to create war weariness among the members of such armed forces, to discourage them, and to impair the capacity of the United States to wage war against its enemies. The indictment alleged the commission of eight overt acts. Appellant was found guilty of the commission of overt act No. 6 only, which in the language of the indictment, was: "That on a day during October, 1944, the exact date being to the Grand Jurors unknown, said defendant, at Tokyo, Japan, in a broadcasting studio of the Broadcasting Corporation of Japan, did speak into a microphone concerning the loss of ships."

Upon this appeal counsel for appellant have filed briefs asserting the commission of numerous errors on the part of the trial court. Their briefs, however, have overlooked this Court's Rule 20d relating to the requirement of a specification of errors and the manner in which the same shall be stated. The failure to comply with this rule has added materially to the task of the court in attempting to evolve from very lengthy briefs the precise contentions made by the appellant, and we take this occasion to call the attention of the members of the Bar of this Court to the fact that the rule is designed to clarify counsel's presentation of an appeal as well as to lighten the labors of the court.

Appellant's contentions fall into two categories: the first, it is asserted, call for a judgment that the defendant-appellant must be discharged; the second relate to alleged errors which would require a new trial.

1. Whether the applicable clause of the Act relating to treason was unconstitutional as applied to appellant.

At the outset appellant contends that those provisions of the treason statute, 18 U.S.C.A. § 1, 1946 Ed.¹ under which she was convicted were void and wanting in due process under the Fifth Amendment by reason of the co-existence of those provisions of the Nationality Act of 1940, 8 U.S. C.A. § 501 et seq., which repealed the former expressed prohibition against expatriation in time of war. In consequence of this, says appellant, the law provided that a person in like position as appellant, might lawfully have been naturalized to an enemy belligerent, and that under the Government's naturalization policy the appellant could, as many other persons of Japanese ancestry did, have transferred allegiance to Japan. Appellant says that a person desiring to adhere to the enemy and give it aid and comfort, and wishing to do a thorough-going job of it, could shed his allegiance to the United States under existing law and thus engage in adherence, aid and comfort to the enemy with impunity. On the other hand, says appellant, she is charged with treason for having done no differently than the person who transferred allegiance. It is said that this constitutes an unreasonable and arbitrary discrimination; that it operates as a denial of equal protection of the law to such a degree as to be a denial of due process under the Fifth Amendment.

Putting the argument in a slightly different form, appellant says that in permitting wartime naturalization to an enemy belligerent, the United States authorized adherence, aid and comfort to the enemy under certain circumstances. It is said that by permitting adherence to Japan after naturalization, the Japanese naturalization order is treated as the equivalent of a license.

In other words, it is said one person adheres to the enemy giving it aid and comfort without any consequences under the treason act because he has a Japanese naturalization order which is in effect a license to adhere to the enemy. Another person, without such an order, is therefore engaged in no more than an unlicensed adherence to the enemy. It is said that punishment of treason cannot be limited merely to unlicensed adherence, aid and comfort because Article III, Section 3, of the Constitution, defining treason provides that it "shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." This clause, it is said, means that treason shall consist only of adherence, aid and comfort, as such. Limiting punishment for treason to unlicensed adherence, aid and comfort, means adding limitations and qualifications not contemplated by the Constitutional definition of treason.

We are unable to perceive any sound basis for such an argument. The reference to licensed and unlicensed adherence to the enemy is, we think, but a play on words. The classification here, of which appellant complains, is none other than the ancient distinction drawn between those who do and those who do not owe allegiance.²

Whether the provisions of the Nationality Act which appellant thinks work unfairly represent a wise or sound legislative policy is a problem for Congress, not for us. We are unable to observe anything unreasonable or arbitrary about preserving the ancient distinction between those who do and those who do not owe allegiance regardless of whether the transfer of allegiance could be made in wartime or not. Reasons both historical and logical exist for the distinction and we find no want of due process here.

2. The question of a speedy trial.

Appellant asserts that she was denied the speedy trial required by the Sixth Amendment and that such denial requires her discharge. Her argument in this respect is predicated upon the circumstance that after the defeat of Japan the occupying military force caused appellant's arrest and internment for the period of approximately one year from October 17, 1945, until October 25, 1946. This arrest was pursuant to an order of the Commander-in-Chief of the Armed Forces of the Pacific authorizing the Commanding Generals of the occupying forces to apprehend and detain citizens and nationals of the United States who were suspected of treason and persons who might constitute a threat to the security of the military forces occupying Japan.

On May 7, 1946, a military order was made to the effect that the appellant was not considered subject to a military trial, but that she was being held until the results of the military investigations were transmitted to the Department of Justice. Immediately prior to her release on October 25, 1946, the War Department advised the Army authorities in Japan that the "Department of Justice no longer desires Iva D'Aquino be retained in custody" and her release followed. Thereafter, on August 26, 1948, the appellant was arrested at Tokyo pursuant to a warrant of arrest issued under the authority of the Supreme Command for the Allied Power. It was issued upon the complaint of the Department of Justice. She was brought to the United States under guard of military police acting under orders from General Headquarters Far East Command who took her on board a United States Army Transport which arrived in San Francisco on September 25, 1948, when she was delivered to special police of the Federal Bureau of Investigation. She was arraigned on the same day in San Francisco and indicted on October 8, following.

There is nothing in the record to disclose failure on the part of the United States to prosecute the charge against appellant with reasonable promptness following the date of her arrest on August 26, 1948. The record is barren of any demand for a speedy trial. Danziger v. United States, 9 Cir., 161 F.2d 299, 301, certiorari denied 332 U.S. 769, 68 S.Ct. 81, 92 L.Ed. 354. Appellant obtained an order permitting one of her attorneys to go to Japan for the purpose of taking depositions at Government expense and she obtained a continuance of the trial date to permit the completion of that task. Under these circumstances there cannot be said to be a denial of a speedy trial. Daniels v. United States, 9 Cir., 17 F.2d 339, 344, certiorari denied Appell v. United States, 274 U.S. 744, 47 S.Ct. 591, 71 L.Ed. 1325.

Appellant however says that her military detention in Japan in the year following October, 1945, demonstrates that she was denied a speedy trial. We shall have occasion to refer to the character of the detention later in this opinion, but wholly apart from whether that detention was or was not in accordance with law, it has no bearing whatever upon the question of her right to a speedy trial, which is one that arises after a formal complaint is lodged against the defendant in a criminal case.

In this connection appellant makes an alternative contention based upon this prior imprisonment, — that such prior imprisonment constitutes former jeopardy. This contention...