United States v. Jogwick, 33-F.

• Decision Date: 24 August 1943
• Docket Number: No. 33-F.,33-F.
• Citation: 51 F. Supp. 2
• Parties: UNITED STATES v. JOGWICK.
• Court: U.S. District Court — Northern District of West Virginia

51 F. Supp. 2

UNITED STATES v. JOGWICK.

No. 33-F.

District Court, N. D. West Virginia.

August 24, 1943.

Joe V. Gibson, U. S. Atty., of Kingwood, W. Va., and C. Brooks Deveny, Asst. U.S. Atty., of Fairmont, W. Va., for the United States.

James F. Burns, of Fairmont, W. Va., for defendant.

HARRY E. WATKINS, District Judge.

This is a proceeding under Sec. 338 of the Nationality Code of 1940, 8 U.S.C.A. § 738, to cancel and set aside, on the ground of fraud, the certificate of naturalization issued to the defendant by this court on May 24, 1932.

The Government alleges in its complaint that the defendant, Walter Emil Albert Jogwick, filed his verified petition for naturalization on October 8, 1931; that he took the required oath of allegiance on May 24, 1932; and that, relying upon the truth and good faith of the representations of the defendant, as contained in his petition for naturalization and his oath of allegiance, the United States of America issued a certificate of naturalization to him.

It is 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 said The German Reich; and in that he did not in fact intend to reside permanently in the United States". And that "he did not in fact renounce and abjure all allegiance and fidelity to 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 maintain his allegiance thereto". The defendant has denied these allegations, and professed his loyalty to the United States.

In order to decide this case it is necessary to determine the state of mind of the defendant on May 24, 1932, when he took the oath of allegiance. The burden of proof is upon the government, and it takes more than a mere preponderance of the evidence to establish the government's case. This is a case in which fraud is charged and such fraud must be established by clear and satisfactory proof. But it is well settled law that the state of a person's mind on a given date may be proved by his subsequent actions and statements. Schurmann v. United States, 9 Cir., 264 F. 917, 18 A.L.R. 1182, appeal dismissed 257 U.S. 621, 42 S.Ct. 185, 66 L.Ed. 401; Glaser v. United States, 7 Cir., 289 F. 255, certiorari denied 263 U.S. 700, 44 S.Ct. 6, 68 L.Ed. 513; United States v. Baumgartner, D.C., 47 F.Supp. 622; United States v. Bergmann, D.C., 47 F.Supp. 765; United States v. Schuchhardt, D.C., 49 F.Supp. 567; United States v. Kuhn, D.C., 49 F.Supp. 407; United States v. Polzin, D.C., 48 F. Supp. 476; United States v. Ebell, D.C., 44 F.Supp. 43; United States v. Meyer, D.C., 48 F.Supp. 926; United States v. Fischer, D.C., 48 F.Supp. 7; United States v. Murray, D.C., 48 F.Supp. 920; United States v. Wursterbarth, D.C., 249 F. 908, wherein a certificate of citizenship was cancelled after a lapse of more than 35 years; United States v. Wezel, D.C., 49 F.Supp. 16; United States v. Ritzen, D.C., 50 F.Supp. 301.

Walter Emil Albert Jogwick, age 48, came to this country from Danzig with his wife in 1926 at the age of 31. He has a mother and six brothers in Germany, most of whom are now serving in the German army. He served in the German army during the first World War, and while in Danzig was a member of the Citizens Guard, a war veteran's organization, the members of which served as auxiliary police, helping to fight communism. This organization was active throughout Germany following the Treaty of Versailles, which was signed on June 28, 1919. Defendant admits that he has been bitter about the treatment Germany received in that treaty, which he terms "unjust", especially that part of it which took Danzig away from Germany, and believes that Germany was entitled to have back the territory which it lost in the last war, and is entitled to colonial possessions. When coming here he had the equivalent of a two year college education. He came to this country at the instance of a brother-in-law, who published a newspaper over here, printed in the German language. Both before and after coming here in 1926, defendant admits that he has been intensely interested in the internal affairs of Germany and has read all he could on this subject in newspapers and magazines. Nevertheless, he stated on direct examination that he had never even heard of Hitler or his theories until he became Chancellor of Germany in 1933. Adolph Hitler commenced his agitation for National Socialism in Germany immediately after the Treaty of Versailles. Defendant admitted on cross examination that he remembered hearing about the "Beer Hall Putsch" in Munich on November 9, 1923, when sixteen of Hitler's adherents were killed in one of his first efforts to obtain power. Hitler himself was imprisoned and remained in prison until December 20, 1924. He says that he never belonged to the German American Bund, was never asked to join, and never heard of the "Teutonia Society" or the "Friends of the Hitler Movement", names by which the National Socialistic movement was known here before it put Hitler into power in Germany.

He had not been in this country long until he found employment at a good salary. He became an active church member, purchased property and formed friendships. Two sons became citizens of this country by reason of their birth on American soil. The elder son was a Boy Scout, and defendant became active in this organization, often taking the boys on hikes. He contributed money to charitable and humanitarian organizations. It is only natural to assume that as the years passed the ties to his fatherland would become less binding and his loyalty and fidelity to this country would increase. United States v. Schuchhardt, supra; United States v. Kuhn, supra. After he was naturalized in 1932, nothing occurred to test his true feelings and loyalty to this country until about 1939, when Germany started on the march to regain territory which Hitler claimed had been unjustly taken away from them at Versailles.

Several witnesses, including fellow employes working in the same room with him, have testified to many anti-American statements made by him both before and after our entry into war with Germany. Some of these statements are admitted as true by defendant, with the explanation that he did not mean what he said, or had since changed his mind. Others are denied, but neither the explanations nor the denials are convincing to this court. Prior to Pearl Harbor he stated that he favored the German form of government and their philosophy of life; that if the United States entered the war, they had better put him in a concentration camp so he could not do any harm; that a man of his age should never migrate as it was impossible to get his native country out of his system, and that he made a mistake in coming over here; that he approved of German invasion of Poland, and admired Hitler; that he thought the German Empire should once more become a power and have the prestige it had before the last war; that our American boys were not physically fit and would make no capable opposition for Germans; that the culture of the German people was higher — we were used to jazz music and Hollywood. Between January 1 and June 1, 1942, after Pearl Harbor, and after we were at war with Germany, he stated that he wanted to make some improvements in the basement of his house so that he could sell his house easier, because, win or lose, he was going back to Germany with his family after the war; that America had done nothing for him; that he was not satisfied with conditions here; that he wished he was in Germany — he could do more good there than here; that he would cheerfully give his right arm if he could be back in Germany to help; that under no conditions would he buy war bonds or stamps unless compelled to do so — that it would be like murdering his own people in Germany; that he could not sleep well on account of conditions in Germany, and wished he could do something to help them out; that the allies were dirty, yellow cowards — crude pioneers with no knowledge of the finer things in life; that we were nothing but a group of pie eating fools — and referred to our hillbillies who sat on the front porch eating peanuts; that he would be thrown in a penitentiary if people knew how he felt, and didn't care — because he saw no reason for covering up; that he was for Germany — he had always been on the winning side and intended to keep on the winning side; that Germany had never been defeated militarily, that we didn't win the last war — our soldiers were fighting high school boys and men two and three times wounded — that the German people back home were starved out; that the Allied Nations could not cope with Germany since they could not hold out against a handful of Japs; that he wanted to be put in a concentration camp so that he could hate freely. He referred to good war news as "Jewish propaganda", and on one occasion said: "Democracy! Bah!" He admits that since we have been in the war he has become angry when persons about him played "Praise the Lord and Pass the Ammunition" because he thought this sacrilegious. On one occasion a few months after Pearl Harbor a fellow employe stated "I would like to go out and kill a dozen Japs and a dozen Germans". Defendant admits that this made him angry, and explained: "I mentioned whether he intended to kill the dozen Japs and Germans with T-square and triangle"....