Petition of Kohl

• Decision Date: 03 January 1945
• Docket Number: No. 164.,164.
• Citation: 146 F.2d 347
• Parties: Petition of KOHL.
• Court: U.S. Court of Appeals — Second Circuit

146 F.2d 347 (1945)

Petition of KOHL.

No. 164.

Circuit Court of Appeals, Second Circuit.

January 3, 1945.

Harold Epstein, of New York City (Hays, St. John, Abramson & Schulman and William Klein II, all of New York City, on the brief), for appellant.

Louis Mansdorf, Asst. U. S. Atty., of New York City (John F. X. McGohey, U. S. Atty., of New York City, on the brief), for the United States.

Before CHASE, CLARK, and FRANK, Circuit Judges.

CLARK, Circuit Judge.

Stephen Kohl, appellant herein, was born in Bayreuth, Germany, on February 17, 1909, and came to this country on September 22, 1936. He filed his declaration of intention to become a citizen on March 11, 1937, and his petition for naturalization on June 19, 1942. The District Court heard the petition in April, 1944, and immediately denied it, on the ground that appellant had failed "to establish attachment to the Constitution." This appeal followed.

The hearing below appears to have taken a curious turn. The attorney for the naturalization examiner stated that the government had no objection to the granting of the petition; and the only witness was appellant himself, who was interrogated at length by the judge. The judge, however, made no formal findings of fact, and his oral opinion indicates no subordinate facts which would seem to justify the conclusory statement, "I feel that there has been a positive effort on his part to evade military duty." True, the judge appears to have relied on certain statements concerning appellant's patriotism which appeared in the record only because they were presented orally by the naturalization attorney and which were so contradictory that the attorney himself quite satisfactorily reconciled them in appellant's favor as he presented them. The contradictions throughout the record seem almost automatically to remove the basis of objection to the grant of the petition.

Thus, against the hearsay statement attributed to one of appellant's former employers to the effect that appellant was not anxious to fight in the United States Army and was out to make money while American boys were dying, there is appellant's own testimony that the employer had told him he had given him good recommendations to the government agents who had made inquiries — verified apparently by a letter from the employer which he showed the court — and that early in 1942 he had volunteered for service, but was told that as an alien he would have to wait until he was drafted. And an apparent conflict in his statements reported by F. B. I. agents, that he was willing to serve, but, as stated on another occasion, that he desired to obtain a commission, but not to serve as a noncommissioned officer or private, was reconciled by the naturalization attorney by ascribing the second statement to the conditions under which appellant would be willing to volunteer. Had there been any thought of relying on this contradictory evidence as a basis for exclusion, the witnesses should have been produced and the contradictions resolved. Petition of Zele, 2 Cir., 127 F.2d 578; cf. Id., 2 Cir., 140 F.2d 773. But at most there seems little in it to offset other affirmative evidence. As the District Court pointed out, appellant had every reason for his profession of a desire to see the Nazi government crushed to earth in this conflict, because his father, a German soldier in World War I, had met his death by persecution in the present conflict, and his mother had been taken to Latvia by the Germans in 1942 and had not been...