United States v. Holtz, 22398-G.

• Decision Date: 10 January 1944
• Docket Number: No. 22398-G.,22398-G.
• Citation: 54 F. Supp. 63
• Parties: UNITED STATES v. HOLTZ et al.
• Court: U.S. District Court — Northern District of California

54 F. Supp. 63

UNITED STATES v. HOLTZ et al.

No. 22398-G.

District Court, N. D. California, S. D.

January 10, 1944.

COPYRIGHT MATERIAL OMITTED

Frank H. Patton, Sp. Asst. to the Atty. Gen., for plaintiff.

Andrew F. Burke and Wayne M. Collins, both of San Francisco, Cal., for defendant Andreas Peter Jessen.

Casper A. Ornbaum and Everett H. Roan, both of San Francisco, Cal., for defendant Friedrich Wilhelm Kuehn.

Wayne M. Collins, of San Francisco, Cal., for defendant Johannes Frederick Bechtel.

Marshall Rutherford, of Oakland, Cal., for defendants Otto Fuerst and Kurt Max Frederick Nitz.

Henry B. Lister, of San Francisco, Cal., for defendants Fred Bernard Christophel, Herbert Landes, and Karl Theodor Stauts.

Allen & Schroth, of San Francisco, Cal., for defendant Paul Fix.

Joseph J. Bullock, of Redwood City, Cal., for defendants Louise Andermahr and Frank Joseph Andermahr.

Gottfried Karl Hein, in pro. per.

GOODMAN, District Judge.

Solely for the purpose of receiving evidence as to the principles and practices of the organization known as the German-American Bund, its predecessors and affiliates, all of the above entitled actions were consolidated for trial by order of this court heretofore entered with consent of all parties. Rule 42(a) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c. By the order of consolidation there was reserved to each of the defendants the right to a separate trial on all other issues, save and except the common one for which consolidation was had. Each of the above actions was initiated under section 338 of the Nationality Act of 1940, 8 U.S.C.A. § 738, to cancel and revoke the certificates of naturalization of the several defendants on the ground of fraud and illegality in the procurement thereof. Section 338 of the Nationality Act 1940, 8 U.S.C.A. § 738. The complaint in each of the cases is substantially the same, except as to certain allegations individually applicable to the several defendants. The complaint alleges in substance the jurisdictional facts; that naturalization was procured fraudulently and illegally in that the defendant claimed attachment to the principles of the Constitution of the United States and favorable disposition to the good order and happiness of the United States, whereas, said claim was false and attachment to the Constitution and favorable disposition to the good order and happiness of the United States were non-existent at the time of naturalization and were so known to the defendant; that the representation of intention to become a permanent citizen was false and known to the defendant to be false; that the oath of allegiance to the United States and renunciation of allegiance and fidelity to any foreign prince, potentate, state or sovereign of whom or of which he had theretofore been a subject or citizen and particularly Germany was false and known to be false at the time by the defendant; that the oath to support and defend the Constitution and laws of the United States against all enemies foreign and domestic, and to bear true faith and allegiance to the United States was false and known to the defendant to be false; that the defendant's oath that he took his obligation freely and without any mental reservation or purpose of evasion was false and known to the defendant to be false.

The allegations of the complaint as to fraudulent and illegal procurement of citizenship were specifically denied in the answer, and, in addition the following special defenses were urged:

a. Lack of jurisdiction in the court to revoke citizenship.

b. Abatement of the action by lapse of time.

c. Res adjudicata in that the court decree granting citizenship fully and finally determined the question of citizenship and is not subject to collateral attack.

d. Section 338 of the Nationality Act is "ex post facto" and therefore not here invocable.

Certain of the defendants moved to dismiss on the above grounds and upon the further ground that the complaint failed to state a cause of action. Decision on these motions was reserved.

I am satisfied that the complaint states a cause of action. United States v. Kuhn, D. C., 49 F.Supp. 407.

The special defenses are without merit. The special defense of res adjudicata cannot be sustained inasmuch as the statute specifically authorizes this proceeding. Section 338 of the Nationality Act of 1940, 8 U.S.C.A. § 738. United States v. Dietz, D. C., 52 F.Supp. 201. The case of Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796, is urged in support of the plea of res adjudicata. However, there the Supreme Court specifically failed to pass upon the res adjudicata point, but based its decision wholly upon the merits of the case before it.

Jurisdiction comes from § 338 of the Nationality Act of 1940, which duplicates the provisions of § 15 of the Act of June 29, 1906, 34 Stat. 596. Schneiderman v. United States, supra; Luria v. United States, 231 U.S. 9, 34 S.Ct. 10, 58 L.Ed. 101; United States v. Ovens, 4 Cir., 13 F.2d 376; United States v. Plaistow, D.C., 189 F. 1006; United States v. Koopmans, D. C., 290 F. 545; United States v. Fox, D.C., 14 F.2d 242.

No doubt exists that the 1906 Act applied to certificates of naturalization issued prior thereto. Luria v. United States, supra; Johannessen v. United States, 225 U.S. 227, 32 S.Ct. 613, 56 L.Ed. 1066. Since § 338 of the 1940 Act duplicates the provisions of the 1906 Act there is no merit in the so-called "ex post facto" contention. United States v. Dietz, supra. The motions to dismiss are severally denied.

The government contends that the defendants were members of the so-called German-American Bund or its predecessor organizations or affiliates, that the principles and practices of these organizations were un-American in character and that participation by the defendants in the principles and practices of these organizations, together with other acts on the part of the defendants, precluded good faith and legality in the taking of the oath of citizenship requisite for the issuance of citizenship certificates.

The evidence presented on the so-called consolidated issue as to the principles and practices of the German-American Bund, its predecessors and affiliates, discloses the following:

The seed that eventually developed into the German-American Bund was planted in the United States on October 12, 1924 by the witness Peter Gissibl and associates, young German immigrants, who had been members of the Nationalsozialistische Deutsche Arbeiterpartei (N.S.D.A.P.) in Germany, an organization then headed by Rossbach, who was subsequently liquidated in the so-called Blood Purge of 1934.

The "Free Society of Teutonia" organized in Chicago on October 12, 1924, purposed the furthering of the National Socialistic movement of Germany. In 1926 the name of the organization was changed to "National Socialist Society of Teutonia." The evidence showed that from and after 1924 many of the members of the organization retained their membership in the N.S. D.A.P., that the organization was patterned in form after the N.S.D.A.P. of Germany; that it received communications from the party in Germany; contributed to the German organization; made contributions to Hitler; had a uniformed group patterned after the Storm Troopers (Sturm Abteilung) and taught and followed the principles and practices of the N.S.D.A.P. The name of the organization was again changed in 1932 to the "Bund of the Friends of the Hitler Movement," and, shortly after the accession to power of Hitler, in January 1933, the name was again changed to "Friends of the New Germany." At that time the N.S.D.A.P. in America went out of existence. In 1936 a convention of the organization was held and by change of name it converted itself into the "German-American Bund" (Amerikadeutscher Volksbund). Thereafter only American citizens of German nationality were admitted to membership in the Bund, although it had an adjunct affiliate called the "Prospective Citizens' League" or Bund "Sympathizers" in which German Nationals, and particularly those on the way to becoming American citizens, were admitted. The German-American Bund continued its activities until December 1941, when shortly after the attack on Pearl Harbor, it was dissolved, i. e. it went through the motions of dissolution, but the government contends a substantial number of its former members continued their activities subrosa in German singing societies.

In addition to the witness Gissibl, who after participating in the founding organization in 1924, was treasurer of the National Socialist Society of Teutonia from 1931 to 1932 and from 1937 to 1938 was unit leader of the Chicago unit of the German-American Bund and from 1934 to 1938 was President of the Teutonia Publishing Company, which printed the official newspaper of the German-American Bund and from 1935 to 1938 was President of the German American Business League, an affiliate of the German-American Bund, the government presented the testimony of Severin Winterscheidt, a member of the "Stahlhelm" or steel helmet group, which was a part of the United German Societies, of which the witness was secretary in 1937. Winterscheidt was active in bringing about the amalgamation of the Stahlhelm and the Bund of the Friends of the New Germany in 1933 and later in 1937 became the editor of the "Deutscher Weckruf und Beobachter", the official organ of the German-American Bund, by appointment of Fritz Kuhn, the national leader (Bundesfuhrer) of the German-American Bund. In general, the witness was the press agent and director of propaganda of the organization, obtaining material from Germany for use in America and in like manner forwarding material from America to Germany.

Another witness produced by the government, was William Luedtke, who after coming to America, in 1933 became a member of the "Volkischer Bund," an organization of "racially conscious German Americans" which later...