United States v. Bergmann, 2304.

• Decision Date: 23 November 1942
• Docket Number: No. 2304.,2304.
• Parties: UNITED STATES v. BERGMANN.
• Court: U.S. District Court — Southern District of California

47 F. Supp. 765

UNITED STATES v. BERGMANN.

No. 2304.

District Court, S. D. California, Central Division.

November 23, 1942.

Leo V. Silverstein, U. S. Atty., and James L. Crawford and John Marvin Dean, Asst. U. S. Attys., all of Los Angeles, Cal., for plaintiff.

Walhfred Jacobson and Fred N. Howser, both of Long Beach, Cal., for defendant.

YANKWICH, District Judge.

The Government seeks to cancel the certificate of naturalization issued to the defendant, Friedrich Walter Bergmann, a former citizen of Germany, on April 9, 1937.

As grounds for the cancellation, the Government has alleged, in its complaint, that the certificate was obtained by fraud. More particularly, it has alleged that, contrary to his representations and to his oath of allegiance, the defendant was, "not in fact attached to the principles of the Constitution of the United States at the time of the filing thereof nor during the five years prior thereto; in that he did not in good faith intend to renounce absolutely and forever all allegiance and fidelity to The German Reich, of which he was then a subject, but in fact intended to retain allegiance and fidelity to the said German Reich."

And that "he did not in fact renounce and abjure all allegiance and fidelity to the said, The German Reich; in that he did not in fact intend to support the Constitution and laws of the United States of America against all enemies foreign and domestic; and in that he did not in fact intend to bear true faith and allegiance to the same, but in fact did intend to remain a subject of The German Reich and to maintain his allegiance thereto".

The defendant has denied these allegations and has protested his loyalty to the Government of the United States. Has the charge been proved?

Naturalization is a privilege. It is granted only upon strict compliance with the conditions laid down by the Congress. 8 U.S.C.A. § 701 et seq. As said by the Supreme Court in Luria v. United States, 1913, 231 U.S. 9, 23, 34 S.Ct. 10, 13, 58 L. Ed. 101: "These requirements plainly contemplated that the applicant, if admitted, should be a citizen in fact as well as in name, — that he should assume and bear the obligations and duties of that status as well as enjoy its rights and privileges. In other words, it was contemplated that his admission should be mutually beneficial to the government and himself, the proof in respect of his established residence, moral character, and attachment to the principles of the Constitution being exacted because of what they promised for the future, rather than for what they told of the past." See United States v. Beda, 2 Cir., 1941, 118 F.2d 458, 459; Samras v. United States, 9 Cir.,1942, 125 F.2d 879, 881.

Thus, in many respects, more is demanded of an alien than of a native-born citizen. A native-born citizen need not be literate to exercise his civil rights, unless the state law so requires. But an alien must know the English language. 8 U.S.C. A. § 704. No matter how well educated he might be in other languages, ignorance of English is a bar to citizenship.

A native-born citizen may be a conscientious objector. An alien, even a woman, who refuses to bear arms, cannot be naturalized. United States v. Schwimmer, 1929, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889; United States v. Macintosh, 1931, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302; United States v. Bland, 1931, 283 U.S. 636, 51 S.Ct. 569, 75 L.Ed. 1319; In re Warkentin, 7 Cir., 1937, 93 F.2d 42.

A native-born citizen may be immoral. And, unless he is convicted of a felony, he cannot be denied his civil rights. But an alien must be of good moral character before he can be admitted to citizenship. 8 U.S.C.A. § 707.

More, a native-born citizen may be opposed to the principles of our constitutional government. And, unless he actually advocates its overthrow, by force, he may go unmolested. But an alien must be "attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States". 8 U.S.C.A. § 707. (And see United States v. Tapolcsanyi, 3 Cir., 1930, 40 F.2d 255, 257; Kjar v. Doak, 7 Cir., 1932, 61 F.2d 566, 569.)

When, through concealment, a certificate of naturalization is obtained in violation of any of these requirements, there is fraud, for which the certificate may be cancelled. 8 U.S.C.A. § 738; United States v. Ginsberg, 1817, 243 U.S. 472, 37 S.Ct. 422, 61 L.Ed. 853; Maney v. United States, 1928, 278 U.S. 17, 49 S.Ct. 15, 73 L.Ed. 156; United States v. Kramer, 5 Cir.,1919, 262 F. 395; Schurmann v. United States, 9 Cir.,1920, 264 F. 917, 18 A.L.R. 1182; Glaser v. United States, 7 Cir.,1923, 289 F. 255; United States v. Woerndle, 9 Cir.,1923, 288 F. 47; Rowan v. United States, 9 Cir.,1927, 18 F.2d 246; Turlej v. United States, 8 Cir.,1929, 31 F.2d 696.

The spirit of these requirements and of the oath of renunciation and allegiance prescribed by the Congress, 8 U.S.C.A. § 735, I have sought to express in addresses delivered at various times to persons about to be naturalized. I repeat a portion of one of them, as reproduced in the press.

"The oath you are about to take requires the renunciation of allegiance to the country of your birth, and the assumption of a new loyalty to the United States.

"Americanism does not brook a divided allegiance. You are not required, however, to surrender any religious ideal, nor to give up any of your cultural heritage. American civilization is a composite pattern to which many different racial and national groups have contributed.

"However, loyalty to the United States implies the surrender of whatever there may be in the culture of your country which is contrary to the fundamental ideals of America." * * *

"The chief characteristic of American constitutional government is its insistence on the rights of the individual, rights of which he cannot be deprived by the state. This heritage is embodied in our Bill of Rights.

"Fascism, Nazism, Communism postulate the omnipotence of the state and do not recognize the rights of the individual which may be asserted against it. They are the opposite of what you have been taught about the American government. The oath requires you to defend the Constitution and the laws of the United States against enemies foreign and domestic. This means that you must defend them against political philosophies opposed to them. If, after leaving this courtroom, you attempt to foster these alien philosophies in America, it will show that you do not mean this oath you take before God." (From Los Angeles Times Sunday Magazine, January 21, 1940, page 11.)

The facts here must be considered in the light of these principles.

Citizenship once granted should not be revoked except upon positive proof of fraud. Allowance must be made for statements made in the heat of passion. At times, people are "goaded" into making extravagant statements. We must also take into consideration the fact that in and out of the Congress, prior to America's entry into the war, most fantastic opinions regarding the European war and the part the United States should play in the world crisis were uttered with impunity.

In fact, the most extreme forms of denunciation of everyone from the President down who took a friendly attitude towards Britain occurred in the Congress and the Press. The motives of the German Reich were extolled. Those of Britain and of the United States were denounced. (For some of these utterances, See Time Magazine, Vol. XL, No. 20, November 16, 1942, p. 20, Col. 1). An otherwise gentle woman poet, advised the United States to accept totalitarianism and ride along on the "wave of the future." (See Anne Morrow Lindbergh: The Wave of The Future, 1940.)

Such dissidence is of the essence of our freedom. We not only allow it. We protect it by constitutional guarantee. (See my recent article, Freedom of the Press in Prospect and Retrospect, 1942, 15 So. Calif. Law Review, 322, 332.)

But here we have more than the advocacy of a policy which later events proved unrealistic and detrimental to the United States. In season and out of season, without provocation, the defendant, both before and after America's entry into the war, has upheld the cause and governmental philosophy of present-day Germany and has berated those of the United States. They embody antipodal systems of thought. One cannot profess or serve both, without disloyalty to one. "No man can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other." Matthew 6:24.

To my mind, the facts testified to by the many witnesses who appeared in this case gave expression to the feeling which the defendant himself entertained when, in his statement of facts filed in connection with his application for citizenship, dated November 5, 1936, in answer to the question: "26. If necessary, are you willing to take up arms in defense of this country?" he first wrote "Yes". After discussing the answer with the Examiner, he caused this reservation to be added: "But will not take up arms in an attack upon Germany". When informed by the Examiner that refusal to bear arms against a particular country may result in a denial of citizenship, he caused the reservation to be deleted. He stated at the trial that the Examiner left him for about fifteen minutes and that he notified him of his change of attitude when he returned. ("I then and there changed my mind", — to use his own words.)

The fact was not called to my attention when, on April 9, 1937, I acted on the Examiner's recommendation that the defendant be admitted to citizenship.¹

To refer to one's self as a Nazi when being introduced to a stranger, to give Hitler's salute, "Heil Hitler", on taking leave from non-German speaking persons, to praise Hitler, to identify one's self with him by saying "We, — Hitler" will do thus and so, ("use gas"), to approve and advocate world dominion by Germany and Japan, to...