United States v. Geisler
| Decision Date | 09 July 1949 |
| Docket Number | No. 9783.,9783. |
| Citation | 174 F.2d 992 |
| Parties | UNITED STATES v. GEISLER |
| Court | U.S. Court of Appeals — Seventh Circuit |
A. F. W. Siebel, Arthur F. Siebel, Chicago, Illinois, for appellant.
Otto Kerner, Jr., U. S. Atty., Chicago, Illinois, John P. Lulinski, Asst. U. S. Atty., Chicago, Illinois, C. Wylie Allen, Asst. U. S. Atty., Chicago, Illinois, Dewey G. Hutchinson, United States Naturalization Examiner, Dept. of Justice, Immigration and Naturalization Service, Chicago, Illinois, for appellee.
Before MAJOR, Chief Judge, and MINTON and DUFFY, Circuit Judges.
This is an appeal from a judgment restoring a judgment denaturalizing the defendant-appellant which had heretofore been vacated upon a petition for rehearing. The defendant was admitted to citizenship in the United States on September 19, 1940. He formerly had been a German citizen.
On September 4, 1942, while he was confined in the guardhouse at Fort Sheridan, Illinois, after his conviction by a court martial for violation of the 96th Article of War, 10 U.S.C.A. § 1568, while a private in the Army, a complaint based upon the same facts relied upon in the court martial was filed in the District Court for the Northern District of Illinois to cancel the certificate of naturalization issued to the defendant on September 19, 1940, because of fraud and bad faith of the defendant in obtaining the certificate. The pertinent paragraphs of that complaint are set forth in the margin.1
On November 24, 1942, the defendant in that proceeding filed his answer to the complaint, consisting of three short paragraphs which are set forth in the margin.2 Upon this complaint and answer, the defendant's statements made in open court that he did not desire to be represented by counsel and that he admitted the truth of the allegations contained in the complaint, and on testimony of witnesses in support of the complaint, the District Court found that the certificate of naturalization was fraudulently obtained and the defendant's oath of allegiance was false in that he never intended to forswear his allegiance to the German Reich and to pledge his allegiance to the United States. The District Court cancelled the certificate.
Nothing more was heard from the defendant until March 27, 1946, over three years after the final decree cancelling his citizenship and almost a year after hostilities with Germany had ceased, when he appeared by counsel and filed a petition for rehearing in the old proceeding wherein his naturalization had been cancelled as fraudulent. In this petition he alleged that the statements on which he was convicted in the court martial and which formed the basis for cancelling his citizenship were involuntary and made without the benefit of counsel;3 that the answer he filed was induced by circumstances of his confinement, without stating what those circumstances were, and by statements made and advice given him by certain Army officers and representatives of the United States Attorney's office in Chicago. He then alleged that the statements made in his petition for naturalization were not false or fraudulent nor was his oath of allegiance; that the petition was filed and presented and the oath taken in good faith; that the proceedings were a denial of due process of law to him; that he does not allege that the officers of the United States Army or the representatives of the office of the United States Attorney in Chicago intentionally or fraudulently misinformed him to his disadvantage, intending to deprive him of due process of law and of his citizenship in the United States, but that the entire circumstances of the trial and his court martial so beclouded the defendant's rights that the result was a deprivation of due process of law; that he was advised by all with whom he spoke that he had no chance to retain his citizenship; that people in his situation would automatically be denaturalized; that Germans at that time had no chance to enforce their rights in court; and that, relying upon these representations to his disadvantage, he filed the answer which he filed in the proceeding to cancel his citizenship. He then alleged that he had since been informed and now believed that he had a good defense and answer on the merits of the complaint and that he was desirous of having the cause tried on its merits and having his day in court, that he had a full, complete and true answer in defense to the complaint, and that he reaffirmed the allegations in his petition for naturalization and his oath of allegiance. He prayed that the order of November 24, 1942, be set aside and held for naught, that a new trial of the issues contained be granted, and that he have such other relief as might seem just and equitable.
To this petition the United States directed a motion to dismiss, for the reasons that the petition did not state grounds upon which relief could be granted; that the court lost jurisdiction of the cause by expiration of the term of rendition, and further by the expiration of the six-month period provided for in Rule 60(b) of the Federal Rules of Civil Procedure;4 that the present petition is in effect a bill for review and the United States has not consented to become a party; that the errors alleged in the petition were within the knowledge of the defendant within six months after the entry of the judgment; that if the petition is construed as a motion for a new trial, it was too late because not filed within ten days of the rendition of judgment as required by Rule 59(b) of the Federal Rules of Civil Procedure; that if the petition is construed as a motion for a new trial based on newly discovered evidence, it was not filed before the expiration of the time for appeal from the final judgment, as required by Rule 59(b); and that if the petition is construed as a bill of review, it fails to state the usual grounds therefor, namely, (a) error of law apparent on the face of the record, and (b) newly discovered evidence.
The court overruled this motion to dismiss and without hearing any evidence vacated the decree of November 24, 1942, and reinstated the defendant's citizenship. This order was entered November 7, 1946.
The District Court having vacated the decree of November 24, 1942, without hearing any evidence but solely upon the petition of the defendant, proceeded on April 21, 1947, to hear again the issues tendered by the complaint filed by the United States September 4, 1942, for the cancellation of the defendant's citizenship. The answer filed by the defendant on November 24, 1942, was not withdrawn. The complaint then stood confessed, but the confession contained in the defendant's answer was sought to be avoided by proving the allegations of the petition for rehearing. On this state of the record, the cause went to hearing, the defendant voluntarily appearing in person and by counsel.
The facts adduced at this hearing are as follows. The defendant was placed upon the stand by the Government and testified that on January 27, 1942, he signed the affidavit taken down before Lieut. De Love, Post Intelligence Officer at Fort Sheridan, and sworn to before Capt. Ure, the Post Adjutant. The pertinent parts of this affidavit read as follows:
The defendant testified that he took an oath of allegiance when he became a citizen of the United States. He admitted to the statements in the affidavit that Germany was fighting for its daily bread and that he hoped Germany would win over England. He could not remember if he had said it was a capitalistic war to make a few people rich. He denied that he stated he refused to fight against Germany or Japan. He was then asked:
A. Well, that needs a little explanation to clarify that.
He was not asked either when called by the Government, when a witness in his own behalf, or on cross-examination to clarify that statement, and he did not clarify it. He denied that he did not intend to fulfill his oath of allegiance to the United States against Japan, Italy, and Germany. He admitted that he had stated that he had attended Bund meetings and had been a...
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