United States v. Kusche

• Decision Date: 13 June 1944
• Docket Number: Civil Action No. 2425-PH.
• Citation: 56 F. Supp. 201
• Parties: UNITED STATES v. KUSCHE.
• Court: U.S. District Court — Southern District of California

56 F. Supp. 201

UNITED STATES v. KUSCHE.

Civil Action No. 2425-PH.

District Court, S. D. California, Central Division.

June 13, 1944.

COPYRIGHT MATERIAL OMITTED

Charles H. Carr, U. S. Atty., successor to Leo V. Silverstein, John Marvin Dean, Asst. U. S. Atty., all of Los Angeles, Cal., for plaintiff.

Eugene L. Graves, of Bell, Cal., for defendant.

A. L. Wirin and Nathan Newby, both of Los Angeles, Cal., amici curiae, by appointment of the Court.^*

HALL, District Judge.

Preliminary Statement.

This is a denaturalization proceeding brought under 8 U.S.C.A. § 738, formerly Section 15 of the Naturalization Act of 1906.

It is one of a series of cases prosecuted by the Government in different District Courts throughout the country. They have become known as the "Bund" cases, because the grounds of cancellation are based upon the defendants' alleged membership in the "German-American Bund."

In this District there were 27 such cases. Twenty-six of them were consolidated by stipulation, and one (Schultz) by order over the objection of the defendant, for the sole purpose of receiving testimony on one issue, only, viz., the nature and character of the "Bund", which was to be, and was, done first; thereafter each case was to, and did, proceed individually. Since the conclusion of the evidence, four have been dismissed by the Government and one defendant has died, leaving 22 pending for decision.

At the time set for the commencement of the trial, various defendants, by appropriate and timely objections, and motions, raised the question as to the sufficiency of the complaint, the admissibility of any evidence relating to the nature and character of the "Bund," the admissibility of any evidence concerning the defendant's membership in and connection with and activities in and about the "Bund" and the general admissibility of evidence under the complaint. All of these ordinarily would be settled before or at the commencement of the trial. But they were not in this instance, for several reasons; a number of the Government's witnesses were brought here in custody from Penitentiaries in the east; they, as well as several of the other Government witnesses were scheduled to appear at other trials of similar cases in other districts in the country; several of the defendants having been previously excluded from this area by order of the military authorities, were brought here as Government witnesses at considerable Government expense, to say nothing of the formalities necessary to permit their return by the Army; other defendants who were here at their own expense which they claimed they could ill afford, and with no less formalities, were willing to proceed on the basis hereinafter mentioned; and the Assistant United States Attorney, who with the Naturalization Department had done a tremendous task of preparation¹ was anxious to conclude the trial so that he could commence the service of his enlistment in the Navy, and it would have delayed beyond good sense the entire proceeding, had some other lawyer been compelled to examine, to the point of understanding, the vast amount of material for purposes of the trial.

So the cases proceeded to trial, and were tried on all issues; but all objections to the sufficiency of the complaint, the general admissibility of the evidence and other objections which went to the general legal issues involved were overruled, with the distinct understanding and consent of all parties that their rights under such objections would be preserved to them to be ruled on at the conclusion of the case. Appropriate and timely motions to strike, motions for judgment, and other proper expressions to the record were made by the defendants for the preservation of these rights.²

In addition to that, by express consent in all the cases (except the Specht case) all legal issues raised in all cases were to be considered as having been raised in each case.³

At the conclusion of the evidence both the Government and the defendants were permitted to and did, without objection, amend the pleadings to conform to their conceptions and contentions.

While this memorandum is addressed to the within entitled case many of the questions herein considered are nevertheless common to most, if not all the cases.

So much has been written and so many cases reported on the subject that I have hesitated to reduce my views to writing. But the complexity of the subject will permit neither presentation nor solution except by comprehensive statement.

Before doing so, I feel that I should say that I cannot escape the consciousness that we are here dealing with people who were born and raised as Germans, and that twice within my generation the German nation has precipitated the unspeakable horrors of modern war upon the world. These things must not, indeed they cannot, be permitted to shade in the slightest the rules of law and reason applicable to these controversies. I make these statements, not with the idea that they have any bearing on the law of the case, but because they are present in the minds of every one connected with these cases, and it is simply much better that they be said than unsaid.

The opening comment of Mr. Justice Holmes in his first dissent in the Supreme Court is helpful by way of introduction to the treatment of the questions here, Northern Securities Co. v. United States, 193 U.S. 197 at page 400, 24 S.Ct. 436, at page 468, 48 L.Ed. 679:

"I am unable to agree with the judgment of the majority of the court, and although I think it useless and undesirable, as a rule, to express dissent, I feel bound to do so in this case and to give my reasons for it.

"Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend. What we have to do in this case is to find the meaning of some not very difficult words. We must try,—I have tried,— to do it with the same freedom of natural and spontaneous interpretation that one would be sure of if the same question arose upon an indictment for a similar act which excited no public attention, and was of importance only to a prisoner before the court. Furthermore, while at times judges need for their work the training of economists or statesmen, and must act in view of their foresight of consequences, yet, when their task is to interpret and apply the words of a statute, their function is merely academic to begin with,—to read English intelligently,—and a consideration of consequences comes into play, if at all, only when the meaning of the words used is open to reasonable doubt."

The Complaint.

In substance, the complaint as finally amended, first recites (a) defendant's arrival in the United States on November 1, 1923; (b) the filing of his petition for citizenship on November 2, 1929, containing the customary statement of attachment and intentions of allegiance and residence; (c) the taking of his oath of allegiance, in the form required, and the making of the order of admission and the issuance of the certificate thereon on the 9th day of May, 1930; and (d) his previous nativity and citizenship in Germany. The complaint then asserts that the defendant induced the plaintiff by the representations of attachment to the principles of the Constitution in his petition for naturalization and his oath of allegiance to rely thereon and to issue him the certificate of naturalization on May 9, 1930, and that the certificate was issued in reliance upon these representations. It then alleges: (1) That between July 1, 1934, and about July 1, 1941, the defendant was a member of the "Bund," "which (a) advocated and demanded of each of their adherents, regardless of his status as a citizen of the United States, a lack of attachment to the principles of the Constitution of the United States, and an ill-disposition on his part to the good order and happiness of the United States; (b) encouraged, fostered and demanded in their adherents supreme and unswerving allegiance and fidelity to Germany; (c) engaged in the furtherance of the totalitarian principles of German National Socialism, said principles being inconsistent with and opposed to the principles of the Constitution of the United States, all to the end that their adherents would fail to support and defend the Constitution and laws of the United States, against all enemies, foreign and domestic;" (2) that defendant during his period of membership in the Bund knew that such were the purposes and functions of the Bund and that the defendant approved of and believed in, both at the time he took the oath of citizenship and subsequent thereto, the principles, policies, and purposes of the said Bund as above set forth; (3) that "during said period" of his membership in the Bund the defendant "by statement and conduct indicated" that he did not intend to reside permanently in the United States, that he was not attached to the principles of the Constitution, and that he reserved allegiance to the German Reich.

No statement of the defendant, either in substance or otherwise, is set forth in the complaint, and no conduct except his joinder of the Bund four years after admission.

Upon the basis of these allegations it is asserted that his statements of (1) attachment to the principles of the Constitution; (2) his intention to swear allegiance to the United States and renounce allegiance to Germany; (3) his intention to reside permanently in the United States contained in his petition for citizenship, were false, as well as the same or similar representations and facts contained in his oath, and that the certificate of naturalization was hence procured by...