United States v. Kuhn

• Decision Date: 18 March 1943
• Citation: 49 F. Supp. 407
• Parties: UNITED STATES v. KUHN, and nineteen other cases.
• Court: U.S. District Court — Southern District of New York

49 F. Supp. 407

UNITED STATES v. KUHN, and nineteen other cases.

District Court, S. D. New York.

March 18, 1943.

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Mathias F. Correa, U. S. Atty., of New York City (Howard F. Corcoran, John C. Hilly, and Louis Bender, Asst. U. S. Attys., all of New York City, of counsel), for the Government.

Fritz Julius Kuhn, pro se.

Charles A. Oberwager, of New York City, for defendant William Charles Kunz.

Edwin A. Livingston, of New York City, for defendants Konrad Koehler, Henry Von Holt, and Ernst Schwenk.

Stanley J. Harte, of New York City, for defendants Leo Cyler, Hermann Jack Hoeflich, William Heller, Ernst Sotzek, and Werner Ulrich.

David Kumble, of New York City, for defendants Martin Heinrich and Paul August Rausch.

William W. Pellet, of New York City, for defendant Carl Steger.

Cohalan & Morosini, of New York City (Daniel F. Cohalan, Jr. and Emil Morosini, Jr., both of New York City, of counsel), for defendants Franz Xaver Schneller and Franz Wunschel.

John P. Griffith, of New York City, for defendant Friedrich Hackl.

Clarence E. Sutherland, of New York City, for defendant Urban Kugler.

Herbert Otto Finders, pro se.

Benjamin F. Schwartz, of New York City, for Richard Schmidt.

James Bennett, of Yonkers, N. Y., for defendant Gotthilf Faigle.

BRIGHT, District Judge.

Each of the twenty above entitled actions, consolidated for the purpose of trial, was brought under Section 338 of the Nationality Act of 1940, 54 Stat. 1158, 8 U.S.C.A. § 738, to revoke the order admitting the defendant to citizenship and cancelling the certificate of naturalization "on the ground of fraud or on the ground that such order and certificate of naturalization were illegally procured".

Defendants move to dismiss the complaints on the ground that they fail to state a cause of action. Decision on this motion was reserved. The complaint is identical in each cause, except for the necessary difference in dates and with respect to some allegations individually applicable to the particular defendant named therein.

It alleges, in substance, that the action is brought under the section of the Nationality Act mentioned; that plaintiff is a sovereign power; the defendant's residence within the jurisdiction of the court; his petition for citizenship; the taking of his oath; and the making of the order admitting him to citizenship, all of which allegations are admitted in each action. It then alleges that before or after the defendant became naturalized he was an active member and supporter of either the Bund Friends of New Germany, or the German American Bund, or both, which organizations advocated and instilled in their adherents a lack of attachment to the principles of the Constitution, an ill disposition to the good order and happiness of the United States, encouraged, fostered and demanded unswerving allegiance to Germany, and engaged in the furthering of the totalitarian principles of German National Socialism, all to the end that their adherents would fail to support and defend our Constitution and laws against all enemies. It further alleges the defendant's individual participation in Bund activities and his statements as to his individual feelings toward Germany, or this country. It charges that naturalization was fraudulently and illegally obtained, in that at the time thereof defendant was not attached to the principles of the Constitution, did not intend to renounce all allegiance to the German Reich, that he took his oath with a mental reservation which nullified it, and that he did not intend to support against all enemies the Constitution and laws of the United States, or to bear true faith and allegiance to the same.

I think the complaints adequately state a cause of action and the motions of the several defendants are denied.

Each defendant by his oath, taken at the time of his naturalization, declared that he absolutely and entirely renounced and abjured all allegiance and fidelity to the country of which he had formerly been a citizen, that he would support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, would bear true faith and allegiance to the same; and further, "I take this obligation freely without any mental reservation or purpose of evasion". The question here is, did each defendant, at that time, honestly and without any reservation or purpose of evasion so declare? If he did not, there is ample justification for the judgment here sought.

Under the issues created by the pleadings, the question of fraud necessarily relates to the state of mind of the defendant at the time he obtained his certificate of naturalization. The requirements of the Nationality Act, and the petition and oath of each defendant contemplate that he would be a citizen in fact, as well as in name, and that he would assume and bear the obligations and duties of that status, as well as enjoy its rights and privileges. The proof of his qualifications to become a citizen was exacted because of what they promised for the future rather than what they told of the past. Luria v. United States, 231 U.S. 9-23, 34 S.Ct. 10, 58 L.Ed. 101. Proof of statements and actions subsequent to naturalization is properly admitted as bearing upon the mental condition of the defendant at the time he took his oath, and upon the purposes for which citizenship was sought. Luria v. United States, supra, 231 U.S. page 27, 34 S.Ct. 10, 58 L.Ed. 101; United States v. Wursterbarth, D.C., 249 F. 908; United States v. Darmer, D.C., 249 F. 989; Schurmann v. United States, 9 Cir., 264 F. 917, 18 A.L.R. 1182; United States v. Herberger, D.C., 272 F. 278; United States v. Ebell, D.C., 44 F. Supp. 43; United States v. Baumgartner, D.C., 47 F.Supp. 622; United States v. Bergmann, D.C., 47 F.Supp. 765; United States v. Fischer, D.C., 48 F.Supp. 7. The fraud or illegality charged must "be proved by the clearest and most satisfactory evidence, for it is obviously unfair that an alien who has become a citizen should feel that his citizenship is an unstable status which can be easily destroyed by government proceedings against him, irrespective of how long he may have lived here or of the ties of family or property by which he may have become bound". Woolsey, D. J. in United States v. Marini, D.C., 16 F.Supp. 963-965.

Generally, an applicant for citizenship shall have resided continuously within the country for at least five years at the time of filing his petition, and continuously since such filing, and during all of these periods shall have been a person of good moral character, attached to the principles of the Constitution and well disposed to the good order and happiness of the United States. 8 U.S.C.A. § 707. The petition for naturalization embodies these and other requirements and clearly requires a statement of the applicant's intentions with reference thereto. His oath crystalizes these requirements into declarations made, without any mental reservation or purpose of evasion, by which he renounces all allegiance and fidelity to his native land, and obligates himself to support and defend against all enemies, our Constitution and laws, and to bear true faith and allegiance to the same. Id. Sec. 735.

No alien can take this oath with any mental reservation nor retain any allegiance or fidelity to his homeland, nor with any qualification agree to support and defend our Constitution and laws against all enemies, nor for any sentimental or other reason be unwilling to bear such true faith and allegiance, without being guilty of fraud. These declarations were required in the process of his amalgamation into our "melting pot" of creed, nationality, and political thought. It was not intended that memories of his native land should be entirely forgotten, or that he should divorce himself from all political action. They did not deny the rights which all citizens of this country have under the Constitution, of freedom of religion, or of speech. The defendants here are to be judged with those thoughts in mind, and as their actions and statements may have been considered in times of peace.

On the other hand, each defendant renounced all allegiance and fidelity to his homeland; he agreed to support and defend the Constitution and our laws against all enemies, and his faith and allegiance was to be true. These three requirements preclude any divided concept. They contemplate full and complete citizenship. It is to be expected, of course, that new citizens will not have completely divested themselves of some sentimental feeling for their old country. It is also to be expected that as the years grow longer after their oath that this sentiment will diminish and their love for their adopted land will increase. United States v. Wursterbarth, supra. The test of how strong those sentiments were at the taking of the oath and how much, if at all, they created a mental reservation or purpose of evasion as to any or all parts of the oath, may be presumed from defendants' subsequent actions and statements. Particularly is this so when the real test comes, when war or dispute between their new country and their old, is imminent or declared. If it appears that they then fail in allegiance, fidelity or faith, it may fairly be presumed that they did not absolutely and entirely renounce their former allegiance, and this presumption is all the stronger when the period which has elapsed since the oath is longer.

The government contends that the membership of each defendant in the Bund is sufficient upon which to base the judgments sought. In appraising that contention I think a consideration of the historical background of the Hitler movement and of the German American Bund, as revealed by the evidence, will be helpful.

The treaty of Versailles was signed on June 28, 1919, and became effective January 10, 1920. Almost simultaneously with it, Adolf Hitler commenced his agitation for National...