Korematsu v. United States

• Decision Date: 19 April 1984
• Docket Number: No. CR-27635 W.,CR-27635 W.
• Citation: 584 F. Supp. 1406
• Parties: Fred KOREMATSU, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of California

584 F. Supp. 1406

Fred KOREMATSU, Plaintiff, v. UNITED STATES of America, Defendant.

No. CR-27635 W.

United States District Court, N.D. California.

April 19, 1984.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

William T. McGivern, Asst. U.S. Atty., San Francisco, Cal., Victor Stone, Counsel for Special & Appellate Matters, General Litigation & Legal Advice Section, U.S. Dept. of Justice, Washington, D.C., for defendant.

Dale Minami, Minami & Lew, San Francisco, Cal., Peter Irons, Leucadia, Cal., Robert L. Rusky, Hanson, Bridgett, Marcus, Vlahos & Stromberg, Ed Chen, Coblentz, Cahen, McCabe & Breyer, Eric Yamamoto, San Francisco, Cal., for plaintiff.

OPINION

PATEL, District Judge.

Fred Korematsu is a native born citizen of the United States. He is of Japanese ancestry. On September 8, 1942 he was convicted in this court of being in a place from which all persons of Japanese ancestry were excluded pursuant to Civilian Exclusion Order No. 34 issued by Commanding General J.L. DeWitt. His conviction was affirmed. Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944).

Mr. Korematsu now brings this petition for a writ of coram nobis to vacate his conviction on the grounds of governmental misconduct. His allegations of misconduct are best understood against the background of events leading up to his conviction.

On December 8, 1941 the United States declared war on Japan.

Executive Order No. 9066 was issued on February 19, 1942 authorizing the Secretary of War and certain military commanders "to prescribe military areas from which any persons may be excluded as protection against espionage and sabotage."

Congress enacted § 97a of Title 18 of the United States Code, enforcing the exclusions promulgated under the Executive Order. Section 97a made it a misdemeanor for anyone to enter or remain in any restricted military zone contrary to the order of a military commander.

In the meantime, General DeWitt was designated Military Commander of the Western Defense Command which consisted of several western states including California.

On March 2, 1942 General DeWitt issued Public Proclamation No. 1 pursuant to Executive Order 9066. The proclamation stated that "the entire Pacific Coast ... is subject to espionage and acts of sabotage, thereby requiring the adoption of military measures necessary to establish safeguards against such enemy operations."

Thereafter, several other proclamations based upon the same justification were issued placing restrictions and requirements upon certain persons, including all persons of Japanese ancestry. As a result of these proclamations and Exclusion Order No. 34, providing that all persons of Japanese ancestry be excluded from an area specified as Military Area No. 1, petitioner, who lived in Area No. 1, could not leave the zone in which he resided and could not remain in the zone unless he were in an established "Assembly Center." Petitioner remained in the zone and did not go to the Center. He was charged and convicted of knowingly remaining in a proscribed area in violation of § 97a.

It was uncontroverted at the time of conviction that petitioner was loyal to the United States and had no dual allegiance to Japan. He had never left the United States. He was registered for the draft and willing to bear arms for the United States.

In his papers petitioner maintains that evidence was suppressed or destroyed in the proceedings that led to his conviction and its affirmance. He also makes substantial allegations of suppression and distortion of evidence which informed Executive Order No. 9066 and the Public Proclamations issued under it. While the latter may be compelling, it is not for this court to rectify. However, the court is not powerless to correct its own records where a fraud has been worked upon it or where manifest injustice has been done.

The question before the court is not so much whether the conviction should be vacated as what is the appropriate ground for relief. A description of the procedural history of these proceedings explains this posture.

PROCEDURAL HISTORY OF THESE PROCEEDINGS

Petitioner filed his petition for a writ of coram nobis on January 19, 1983. The first scheduled status conference was conducted on March 14, 1983, when all parties appeared before the court. At that time the petition was deemed a motion and the government was ordered to respond by August 29, 1983. Petitioner's reply to the government's response was set for September 26, 1983, and a hearing on the petition was scheduled for October 3, 1983. Informal discovery was conducted in accordance with the agreement arrived at during the conference. Thereafter, the government moved for an extension based upon the forthcoming report of the Commission on Wartime Relocation and Internment of Civilians ("Commission"), which it anticipated would have a substantial bearing on these proceedings. The motion for a continuance was opposed. The court granted the motion, giving the government until September 27, 1983 to respond, and setting October 25, 1983 for petitioner's reply and November 4 for a hearing on the petition. Thereafter, the government was given a further extension, to October 4, for the filing of its response. On October 4, 1983, a document entitled "Government's Response and Motion Under L.R. 220-6" ("Response") was filed. The substance of the Response consists of less than four pages. In fact, it is not an opposition to the petition, but a counter-motion to vacate the conviction and dismiss the underlying indictment.¹ It is denominated a motion under Local Rule 220-6, pertaining to the hearing of related motions.

On October 31, petitioner filed his reply and Request for Judicial Notice. The government filed its Preliminary Response to the Request for Judicial Notice on November 7, 1983. A hearing on the petition and counter-motion was conducted on November 10, 1983.

Because the government maintains that the court should grant its motion and not reach the merits of the petition, the counter-motion is considered first.

THE GOVERNMENT'S COUNTER-MOTION

The government does not specifically designate in its memorandum the grounds for its motion. It relies upon Rinaldi v. United States, 434 U.S. 22, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977) and United States v. Hamm, 659 F.2d 624, 631 (5th Cir.1981) (en banc), in which motions were made pursuant to Fed.R.Crim.P. 48(a). At the hearing the government acknowledged Rule 48(a) as the premise for its motion.

Rule 48(a) has its antecedents in the common law doctrine of nolle prosequi. An understanding of that doctrine is necessary to a discussion of the Rule's application here. As the literal translation of nolle prosequi—"I am unwilling to prosecute"— makes clear, the primary purpose of the doctrine was to allow the government to cease active prosecution. At common law, and before Rule 48(a) was enacted, prosecution was within the exclusive jurisdiction of the prosecuting attorney at the early stages of the proceedings and a nolle prosequi could be entered at any time before the jury was empaneled. Confiscation Cases, 74 U.S. (7 Wall.) 454, 457, 19 L.Ed. 196 (1868).

However, as the case progressed, the prosecuting attorney lost the unilateral right to enter a nolle prosequi. After the jury was sworn and evidence heard, the defendant had the right to object to the entry of a nolle prosequi and the effect of the entry at that stage was a verdict of acquittal. United States v. Shoemaker, 27 F.Cas. 1066 (C.C.D.Ill.1840) (No. 16,279). While the prosecutor's unilateral power to enter a nolle prosequi apparently revived just after the verdict was returned, once a sentence had been handed down or final judgment entered, that unilateral right of the prosecutor was again extinguished. United States v. Brokaw, 60 F.Supp. 100 (S.D.Ill.1945).

With the adoption of Rule 48(a), the absolute authority of the prosecutor was tempered and leave of court was required for dismissal of an indictment, information or complaint at any stage of the proceedings. Although there is a substantial body of case law dealing with the scope of the court's authority to grant or deny leave to dismiss, little has been written about the time within which a Rule 48(a) dismissal may be brought.

There is nothing to suggest that the Rule was intended to extend the nolle prosequi privilege beyond that allowed at common law. In fact, the purpose of the Rule was to place some fetters on prosecutorial discretion. Fed.R.Crim.P. 48(a) advisory committee note 1. The plain language of the section is also instructive. The Rule allows for dismissal, with leave, of an indictment, information or complaint, whereupon "the prosecution shall ... terminate." As the Rule provides that upon the court's approval of a nolle prosequi, the prosecution will terminate, it clearly contemplates action by the prosecuting agency only while control of the prosecution still lies, at least in part, with it. By contrast, the prosecutor has no authority to exercise his nolle prosequi prerogatives at common law or to invoke Rule 48(a) after a person has been subject to conviction, final judgment, imposition of sentence and exhaustion of all appeals and, indeed, after a lapse of many years. At that stage, there is no longer any prosecution to be terminated.

United States v. Weber, 721 F.2d 266 (9th Cir.1983) does not compel a different interpretation. In Weber, as in the cases upon which it relies, the Rule 48(a) motion was made during the pendency of the proceedings. Applying the same rationale, that dismissal is a possibility while the case is still being actively prosecuted, the Supreme Court, even after it has granted a petition for a writ of certiorari, has remanded to allow the government to dismiss charges against the petitioner. E.g., Watts v. United States, 422 U.S. 1032, 95 S.Ct. 2648, 45 L.Ed.2d 688 (1975). This is because Rule 48(a) and the right of nolle prosequi emanate from...