Orth v. United States, 5235.

• Decision Date: 24 May 1944
• Docket Number: No. 5235.,5235.
• Parties: ORTH et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

142 F.2d 969 (1944)

ORTH et al. v. UNITED STATES.

No. 5235.

Circuit Court of Appeals, Fourth Circuit.

May 24, 1944.

Thomas P. Stoney and Malcolm E. Crosland, both of Charleston, S. C. (Edward K. Pritchard and Paul M. Macmillan, both of Charleston, S. C., on the brief), for appellants.

Louis M. Shimel, Asst. U. S. Atty., of Charleston, S. C. (Claud N. Sapp, U. S. Atty., of Columbia, S. C., and D. E. Balch, Sp. Asst. to Atty. Gen., on the brief), for appellee.

Before PARKER, DOBIE, and NORTHCOTT, Circuit Judges.

DOBIE, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the Eastern District of South Carolina, cancelling the naturalization certificate of Albert Orth and Anna Orth under Section 338 of the Nationality Act of 1940, Title 8 U.S.C.A. § 738.

We are in hearty agreement with the attitude so succinctly expressed by Judge Foster in United States v. Kramer, 5 Cir., 262 F. 395, 397, as follows: "American citizenship is a priceless possession, and one who seeks it by naturalization must do so in entire good faith, without any mental reservation whatever, and with the complete intention of yielding his absolute loyalty and allegiance to the country of his adoption. If he does not, he is guilty of fraud in obtaining his certificate of citizenship."

Our approval of this attitude, however, is tempered by our belief that the deprivation of citizenship should be carefully limited to proper cases. The criteria which we must follow were determined by the United States Supreme Court in Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 1341, 87 L.Ed. 1796. The evidence required to establish the Government's right to cancel the certificate of citizenship must be "clear, unequivocal and convincing."

We repeat that American citizenship is a priceless possession, a fact even more patent when two-thirds of the world today is being devastated by bombs, and should not be extended to one who merely seeks physical protection, with no attendant idea of allegiance; nor should one be allowed to retain the benefits of citizenship when he has obtained it through fraud or illegality. It is equally clear that once the rights of citizenship have been granted, more than mere speculation or war time suspicion should be required to annul these rights, United States v. Polzin, D.C., 48 F.Supp. 476; and the approval of the District Court in granting citizenship should be neither lightly considered nor tampered with, in the absence of sound reason for so doing.

As Judge Hutcheson said in Meyer v. United States, 5 Cir., 141 F.2d 825, 831: "It ought to be, it is, in the absence of downright proof of fraud or illegality, enough that one district judge has judicially determined the right of a naturalized citizen to his citizenship. If that right, established by solemn judgment, is to be taken from him, it ought to be, it can be, taken only upon evidence clearly and positively establishing definite fraud. It cannot be taken upon suspicion or surmise of fraud or upon mere proof that since his naturalization the citizen has given expression to views or allied himself with organizations which in the then state of public opinion seem dangerous or inimical to the public welfare. If these expressions or acts of the naturalized citizen are criminal, he is subject like every other citizen to prosecution for them; if they are not, they subject him to no other legal consequences then a native born citizen doing or saying the same thing would be subject to."

We do not believe that such "downright proof of fraud or illegality" has been established in the instant case.

We set out certain pertinent and undisputed facts, as they appear from the record, and subsequently we shall consider, more or less in detail, the most important evidence relied upon by the Government.

Albert Orth (hereinafter called Orth) was born in Germany, of German parents, in 1872. He came to the United States in April, 1891. In the same year he was followed here by his parents, brothers and sisters. Orth's parents were naturalized in September, 1900, prior to his naturalization in November, 1900. In 1896 Orth married a native of Germany, now Anna Orth, codefendant in this action. Her citizenship is derivative, so that it was not necessary for her to take an oath of allegiance to the United States. Orth, in 1904, purchased the Deutsche Zeitung, a German language newspaper published in the City of Charleston, South Carolina. In the same year, he established his residence in that city, where he now resides. The publication of the Deutsche Zeitung comprised only about one-twentieth of Orth's general printing business. Its publication was discontinued as a German language publication in 1917, and it was replaced by a paper published in the English language.

The record discloses that Orth, in 1914, was indicted for aiding one Gustav Drewes, a German reservist, who deserted the crew of the British Steamship Wingate, which came into the Charleston harbor in August, 1914, after a state of war had been declared between Germany and England. However, this indictment was later nolle prossed by the Government.

Further undisputed evidence shows that in the year 1917, after the United States and Germany were at war, Orth was convicted under an indictment containing two counts for offenses committed in 1916. The first count charged Orth with aiding and abetting the escape, from the Atlanta Penitentiary, of one Knobloch, and one Captain Fay, a German officer convicted of placing bombs on ships sailing out of New York and carrying military stores and supplies. The second count charged Orth with harboring and concealing Knobloch and Fay after their escape. This Court reversed the District Court on the count alleging that Orth aided in the escape, and affirmed the conviction under the second count, 252 F. 566-569. Orth served his sentence imposed under the conviction on the second count.

Additional uncontradicted testimony reveals that after the First World War, the District Attorney's office in Charleston recommended to the Department of Justice that proceedings be instituted to revoke Orth's citizenship. The Department of Justice, after consideration of this recommendation, for reasons which were not disclosed, refused to institute such proceedings.

Counsel for the Government have adduced no evidence of misconduct on the part of Orth prior to his naturalization. Evidence of his first allegedly un-American activity was the testimony in regard to aid given to Drewes, the German deserter, in 1914. Even if we attach the worst implications to this act, we see nothing therein clearly inimical to the United States, nor is it "clear" or "convincing" evidence of Orth's mental reservation of allegiance to Germany when he took the oath of allegiance to the United States in 1900. Great Britain, not the United States, was at war with Germany in 1914. Orth's giving aid to Drewes (assuming that he gave such aid) was clearly a violation of the Immigration Law of the United States, and is to be condemned. However, we see nothing in his conduct here which would justify the cancellation of his citizenship.

It is strenuously urged by counsel for the Government that certain editorials appearing in the Deutsche Zeitung, the editorial policies of which were allegedly dictated by Orth, in the year 1916, while not alone sufficient to convict him, are indicative of his real allegiance and show that he held a mental reservation of attachment for Germany when he took his oath of allegiance to the United States in 1900. A careful reading of these editorials, however, convinces us that they do not tend to establish any such mental reservation. They were written prior to the entry of this country into the First World War; and, while they show an interest in the cause of Germany as against England and a desire that this country stay out of the war, they cannot be said to show a lack of loyalty to this country, much less a lack of loyalty and good faith as of the time the naturalization oath was...