United States v. Hauck

Decision Date02 April 1946
Docket NumberNo. 31.,31.
Citation155 F.2d 141
PartiesUNITED STATES v. HAUCK et al.
CourtU.S. Court of Appeals — Second Circuit

George C. Dix, of New York City, for appellants Hauck and Weiss.

Edwin A. Livingston, of New York City, for appellants Bregler, Markmann and Flick.

T. Vincent Quinn, U. S. Atty., of Brooklyn, N. Y. (Vine H. Smith, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for appellee.

Before SWAN, CHASE and CLARK, Circuit Judges.

SWAN, Circuit Judge.

Between October 1942 and March 1943 the United States filed, pursuant to 8 U.S. C.A. § 738(a), a separate complaint against each of the five appellants and three other naturalized citizens to cancel his certificate of naturalization on the ground of fraud in its procurement. In substance the charge was that the defendant's overriding loyalty to Germany rendered false his oath of allegiance to the United States and his renunciation of allegiance to Germany. In each case the basis for the charge was the defendant's membership and activity in the German-American Bund or its predecessor organizations. The actions were consolidated (United States v. Bregler, D.C., 3 F.R.D. 378) for the trial of the one common issue, namely, the purposes, character and practices of the Bund and its predecessors. After the trial of this common issue evidence as to the disloyal reservation of each individual defendant was admitted only as against the individual concerned. The plaintiff first called each defendant as a witness under Federal Rules of Civil Procedure, Rule 43(b), 28 U.S.C.A. following section 723c, and interrogated him at great length with respect to his activities as a Bund member and his state of mind when he took his oath of allegiance. This was followed by testimony of other witnesses as to what the defendant had done or said. The cases were tried without a jury. In each case the judge made detailed findings of fact, concluded that the defendant's representations in his petition for citizenship and in his oath of allegiance were false, and gave judgment against him. The opinion below is reported as United States v. Bregler, D.C., 55 F.Supp. 837. Five of the defendants have appealed.

With respect to the appellant Bregler, the government's brief states that reversal of the judgment in his case will not be opposed, due to the fact that his naturalization certificate was issued several years before he joined the Bund. See Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 125; United States v. Rossler, 2 Cir., 144 F.2d 463. Therefore, no discussion of Bregler's appeal is required.

The other appellants urge numerous errors, contending that the complaints were insufficient, the actions were barred by the statute of limitations, the cases were improperly consolidated, incompetent evidence was admitted, the trial was unfair, and the United States did not prove its case by the clear, unequivocal and convincing evidence required in proceedings of this character.

Several of these contentions are so clearly without merit that they may be disposed of summarily. The contention that the complaints were insufficient because a judgment of naturalization can be set aside only for extrinsic fraud is contrary to our recent decision in United States v. Siegel, 2 Cir., 152 F.2d 614. Reliance on 28 U.S.C.A. § 791 as the applicable statute of limitations is a hopeless clutching at straws; that statute is completely irrelevant. United States v. Brass, D.C., 37 F.Supp. 698; see United States v. Ali, D.C., 7 F.2d 728. There was no abuse of discretion in ordering consolidation of the cases on the common issue relating to the Bund and its predecessor organizations. See United States v. Knauer, 7 Cir., 149 F.2d 519, certiorari granted 66 S.Ct. 265. Nor is there any merit in the argument that the appellants' constitutional rights of freedom of speech and of assembly render inadmissible evidence concerning the consolidated issue and their membership and activities in the Bund. Such evidence was competent as bearing on the state of mind of the respective appellants when they took the oath of allegiance. Appellant Hauck objects also to the order growing out of the pretrial conference which allowed the United States to offer photostats instead of originals where it was inconvenient to obtain the originals. Since the affidavit filed by counsel for Hauck on February 28, 1944, questioned only the accuracy of the translations, and his request for adjournment, made on March 2, 1944, raised no other point, he is not in a position to urge on this appeal that error was committed in admitting the copies without production of the originals.

With respect to the claim that the trial was unfair we are constrained to note that the record shows numerous instances where the impartiality and decorum which ought to characterize a trial were distinctly lacking. Indeed, in conducting the examination of witnesses the court frequently evidenced such partisanship that had there been a jury, reversal would be required on that ground alone. Since there was no jury, we shall examine the record as to each defendant to see whether the finding of fraud in the taking of his oath of allegiance was adequately proven and whether the trial was fairly conducted as to him.

The evidence offered by the government falls into two categories: one relating to the purposes and activities of the German-American Bund and its predecessor groups, and the other touching the specific conduct and mental attitude of each of the several defendants. A vast mass of evidence is of the first sort. It begins with testimony as to the organization in 1924 in Chicago of a group called the Society of Teutonia1 and follows down through various changes of the society's name to the dissolution of the German-American Bund in January 1942. The four defendants, whose appeals are to be discussed, became members of one of the local units of the Bund at various dates between October 1933 and July 1935. Whether it was an abuse of discretion to permit the government to go at such inordinate length into evidence concerning the Bund, during periods long before any of the appellants joined and long after three of them, (Hauck Markmann and Flick) had ceased to be members, is perhaps questionable in view of Keegan v. United States, 325 U.S. 478, 480, 65 S.Ct. 1203.2 Compare United States v. Knauer, 7 Cir., 149 F.2d 519, 520, cert. granted, Dec. 10, 1945. But the point is unnecessary to our decision. A resume of the testimony concerning the Bund appears in the District Court's opinion and will not be repeated. The judge concluded that the Bund was "un-American and subversive" and that "any person subscribing to or believing in the doctrines of National Socialism and the doctrines of the Bund could not, at the time of the taking of the oath of citizenship, have subscribed to such oath and pledge of allegiance in good faith." 55 F.Supp. at page 840. But the conclusion that an applicant for citizenship who subscribed to the doctrines of the Bund necessarily swore falsely in taking his oath of allegiance cannot be accepted in the light of the Supreme Court's opinions in Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796 and Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525, and this court's decisions in United States v. Rossler, 2 Cir., 144 F.2d 463 and United States v. Sotzek, 2 Cir., 144 F.2d 576.3 The principles of a political organization and the utterances of its more vocal members cannot be imputed to another merely because of his membership. Schneiderman case, supra, 320 U.S. 118 at page 154, 63 S.Ct. 1333, 87 L.Ed. 1796. As the Baumgartner opinion pointed out at page 674, of 322 U.S. 665, 64 S.Ct. 1245, 88 L.Ed. 1525, "the expression of views which may collide with cherished American ideals does not necessarily prove want of devotion to the Nation." And as this court held in United States v. Sotzek, a defendant's membership in the Bund for six years prior to taking his oath of allegiance does not prove with the requisite certainty that he himself was so opposed to the principles of the Constitution that his oath was false or fraudulent. Consequently evidence falling within the second category above mentioned, namely, that relating to the personal conduct and utterances of each of the appellants, is of more importance than evidence relating to the Bund in general.

The district court's opinion reviews the evidence as to each individual defendant. We must also review it, for not only must fraud requisite to denaturalize a citizen have been proved by clear, unequivocal and convincing evidence, but the appellate court must determine for itself "whether that exacting standard of proof had been satisfied." Baumgartner v. United States, supra, 322 U.S. 665 at page 671, 64 S.Ct. 1244, 88 L.Ed. 1525; United States v. Siegel, 2 Cir., 152 F.2d 614.

Appeal of Hauck.

The appellant Henry Hauck was born in Germany in 1894. After attending high school he went to a teacher's seminary. During the first world war he served as a lieutenant in the German army. After the war he taught music, physical training and general subjects in the public schools until 1928, when he came to the United States. Previously, in 1921, he had married in Germany. After his arrival in this country in May 1928, he worked in a laundry, in a factory, in a bakery and as a shipping clerk for a market. In 1936 he leased a restaurant concession at a Bund camp on Long Island, Camp Siegfried, which he operated until October 1938. In February 1939 he purchased a diner-restaurant which he and his wife have continued to operate ever since. His neighbors testified to his good character and steady habits.

Hauck filed his declaration of intention to become a citizen in May 1929, petitioned for naturalization on June 3, 1935 and took the oath of allegiance on October 3, 1935. He joined the Jamaica Unit of the Bund in July 1935. He testified...

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