United States v. Knauer

• Citation: 149 F.2d 519
• Decision Date: 28 June 1945
• Docket Number: No. 8676.,8676.
• Parties: UNITED STATES v. KNAUER.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

149 F.2d 519 (1945)

UNITED STATES v. KNAUER.

No. 8676.

Circuit Court of Appeals, Seventh Circuit.

May 29, 1945.

Rehearing Denied June 28, 1945.

H. William Ihrig, of Milwaukee, Wis., for appellant.

Timothy T. Cronin and Carl R. Becker, U. S. Atty., both of Milwaukee, Wis., for appellee.

Before EVANS, SPARKS, and MINTON, Circuit Judges.

MINTON, Circuit Judge.

The United States instituted proceedings under Section 338 of the Naturalization Act of 1940, 8 U.S.C.A. § 738, to revoke for fraud and cancel the certificate of naturalization issued to the defendant by the Circuit Court of Milwaukee County, Wisconsin. Judge Duffy, after an extended hearing conducted in his usual fair and considerate manner, sustained the complaint of the United States and revoked and cancelled the certificate of naturalization issued to the defendant on the ground that it was fraudulently and illegally procured, and entered judgment accordingly. From this judgment the defendant appeals.

There were similar petitions pending in the District Court against thirteen other defendants. An order was entered by the District Court consolidating for trial the common issue in all of the actions. It was the contention of the Government that all of the defendants were members of the German-American Bund. The issues which were common to each case concerned the organization, aims and purposes, and activities of the Bund, its national and local subdivisions, predecessors and affiliates, including the Grafton Settlement League, Incorporated. For whatever it was worth, mere membership in the Bund affected each of the defendants identically the same. After the conclusion of the consolidated trial on the common issues, the claim of the Government against each individual defendant was tried separately. The District Court found in favor of thirteen of the defendants, and against the defendant, Paul Knauer.

The defendant contends that it was error to consolidate these cases on the common issues concerning the Bund. In the consolidation of cases, courts exercise a broad discretion. The court should not consolidate the trial, even where the court sits as a chancellor, in cases where the issues affecting various defendants are certain to lead to confusion or prejudice to any one or all of the defendants.

In the case at bar, the matters heard in the consolidated hearing were one and the same, and touched each defendant with exactly the same effect. There were no conflicting or confusing issues as between the defendants in the matter heard on the consolidation. The defendant represented himself at the trial and had the benefit of the able and experienced attorneys who represented the other defendants at the trial of the consolidated issues. At all times during the trial, Judge Duffy, with meticulous consideration for the rights of the defendant, guided and protected him throughout the entire proceeding. So fair and judicial was his conduct that at the oral argument counsel for defendant paid his respects to Judge Duffy in this regard. The defendant had already paid his respects in an insolent, unwarranted attack on the Judge just a few months before the trial began.

Rule 42(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, was designed and intended to encourage such consolidation where possible. This practice has been uniformly adopted by trial courts in similar cases. United States v. Bregler, D.C., 55 F.Supp. 837; United States v. Baecker, D.C., 55 F. Supp. 403; United States v. Kusche, D.C., 56 F.Supp. 201; United States v. Holtz, D.C., 54 F.Supp. 63; United States v. Sautter, D.C., 54 F.Supp. 22.

We think it clear that Judge Duffy did not abuse his discretion in trying the cases together on the common issues concerning the Bund.

The defendant further contends that the evidence is not sufficient to sustain the Court's action. In such a case the evidence must be clear, unequivocal, and convincing, and the court's findings of fact in such cases are not binding on the appellate court as in the ordinary case of review. Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525.

We have examined the immense record in this case and are of the opinion that it clearly, unequivocally and convincingly establishes that the naturalization certificate issued to the defendant by the Circuit Court of Milwaukee County, Wisconsin, was fraudulently and illegally procured; that before, at the time, and ever after, his taking the oath of allegiance to this country, the defendant was not attached to the principles of our Government and our Constitution, but was a thorough-going Nazi and faithful follower of the National Socialist party of Germany; that he did not in good faith forswear and abjure his allegiance to the Third Reich, and was before, at the time of his naturalization, and afterwards, a faithful follower of Adolph Hitler as leader of the Third Reich.

The clear, unequivocal, convincing evidence in this record shows the following. The defendant, Paul Knauer, was born at Saalfeld, Germany, March 3, 1895. After a high school training, he attended Leipzig University for one semester. Then he joined the German Army in World War I and rose to the rank of top sergeant. During the war he was taken prisoner and decorated with the Iron Cross. After the war he studied law and economics for three years at Leipzig-in-Halle in Germany. The defendant arrived in the United States in April, 1925. On December 4, 1929, he filed his declaration of intention to become a citizen. In 1934 he visited Germany for several months and contacted certain Nazi leaders on this visit. He told friends that he was proud of the fact that he had met Hitler on this trip. On November 20, 1936, he filed his petition for naturalization in the Circuit Court of Milwaukee County. It was in the usual form and he took the usual oath of allegiance on April 13, 1937.

The aim and purpose of the German-American Bund and all its predecessors in this country were to unite all Germans with nationalistic leanings and to convince them that Hitler was the leader of Germans everywhere. The Bund proclaimed and supported the principles and purposes of the National Socialist party of Adolph Hitler, which centered around the Nazi concepts of leadership, superiority of the German race, and the totalitarian power of the leader.

The Bund was directly affiliated with the National Socialist party in Germany. The Nazi holidays, especially Hitler's birthday, were always observed by the Bund. Trips to Germany were arranged for Bundists to appear before the leading Nazis and to meet Hitler. The basic qualifications for membership in the Bund were that the applicant should be of Aryan descent, free of Jewish or Negro blood, believe in the leadership principle, and be an adherent to the Nazi world philosophy. German nationals and American citizens of German descent were eligible for membership in the Bund. There had been 25,000 immigrants of German origin who had migrated to Milwaukee County after World War I, among them the defendant. In 1935 or 1936 the order came from Germany to the Bund leadership in this country to have German nationals retire from the organization. At the same time the Nazi salutation, "Heil Hitler," which had been modified to "Heil," or "Sieg Heil," was ordered to be displaced by the salutation, "Free America." This was only to mislead the public, as evidenced by a speech of Fritz Kuhn, the Bundesfuehrer.

The Bund meetings always displayed in the place of honor the swastika flag of the Third Reich. When the "Horst Wessel" and "Deutschland Uber Alles" were sung, which was done as a part of the ritual, the Bundist stood at rigid attention giving the Nazi salute. The American flag was displayed also, and "America" was sung, but there was no salute to the American flag. The United States was divided up into districts or "Gaus" and "Ortsgruppes" or units. Over all was the Bundesfuehrer. It was just as the Nazis in Germany were organized.

The Bund had its Jugendschaft and Madchenschaft just as the Hitler youth movement had in Germany. They wore similar uniforms and carried a similar banner. The Bund's organization, Ordnungs Dienst, referred to as the OD, corresponded to the storm troopers of the Nazis and wore uniforms similar to those of Hitler's storm troopers. The Bund maintained camps where the storm troopers drilled and where the Nazi flags were flown, Nazi paraphernalia exhibited, Nazi propaganda distributed, and Nazi speakers sponsored. One of these camps was at Grafton, Wisconsin, known as Camp Hindenburg.

The Bund published and distributed newspapers which preached the Nazi doctrine in bold and brazen bids for loyalty to Hitler. The following are samples taken from among hundreds of similar pronouncements:

August 31, 1933: "Although it is not possible for us National Socialists and our `Friends of the New Germany' to be present at this year's historic Party Day with a greater delegation, we feel a special need to assure all our comrades in the homeland that we here are whole-heartedly in spirit united with you in the midst of battle for our common goal."

September 16, 1933: "* * * In loyalty to our Fuehrer, Adolf Hitler, we take up the battle on the American front and will not lay down the arms of defense and truth until a victory has been won in this country on the entire line in honor of our homeland."

May 5, 1934: "To us in America, Hitler's birthday is an opportunity to admit that our whole heart belongs to him as the advocate of a new world philosophy which here, too has moved the minds most extensively; and we trust that fate will preserve him through many years for our German homeland. Again we pledge, on the occasion of Hitler's birthday, that we shall be spiritual fighters for a unified Germandom."

March 5, 1936: "We men and women in the Bund, `Friends of the New Germany,' acknowledge from deepest conviction Adolf Hitler as our...