United States v. Sotzek

• Decision Date: 15 August 1944
• Docket Number: No. 420.,420.
• Citation: 144 F.2d 576
• Parties: UNITED STATES v. SOTZEK et al.
• Court: U.S. Court of Appeals — Second Circuit

144 F.2d 576 (1944)

UNITED STATES v. SOTZEK et al.

No. 420.

Circuit Court of Appeals, Second Circuit.

August 15, 1944.

James B. M. McNally, U. S. Atty., of New York City (Louis Bender, Asst. U. S. Atty., of New York City, and George Jaffin, Sp. Atty., Department of Justice, of Washington, D. C., of counsel), for plaintiff-appellant.

David S. Kumble, of New York City, for defendants-appellants.

Before AUGUSTUS N. HAND, CHASE, and CLARK, Circuit Judges.

CHASE, Circuit Judge.

Twenty actions to revoke orders admitting aliens to citizenship and to cancel certificates of citizenship issued thereunder were brought by the United States in the District Court for the Southern District of New York, and consolidated for the purpose of trial. A judgment was entered in favor of the plaintiff in each of eleven cases and in favor of the defendants in each of nine cases. United States v. Kuhn, D. C., 49 F.Supp. 407. See also United States v. Sotzek, D.C., 53 F.Supp. 708. Appeals have been taken by the defendants Sotzek, Von Holt, Koehler and Wunschel and by the United States in the case of Finders. The government has withdrawn its appeal from the judgment in the Finders case and has confessed error in the judgments against Von Holt and Wunschel.

The actions were commenced under § 338(a) of the Nationality Act of 1940, 8 U.S.C.A. § 738(a), which provides in part that such proceedings may be instituted "on the ground of fraud or on the ground that such order and certificate of naturalization were illegally procured." Subsection (e) empowers the court when such cause has been proved to revoke the order admitting the defendant to citizenship and to cancel his certificate.

In their respective petitions for naturalization the appellants swore that they were attached to the principles of the Constitution of the United States and were well disposed to the good order and happiness of the United States, as they were required by law to do (Act of June 29, 1906, 34 Stat. 596, reenacted as § 332 of the Nationality Act of 1940, 8 U.S.C.A. § 732), and on the day of their admission to citizenship they swore that they renounced all allegiance to Germany and that they would support and bear true faith to the Constitution and laws of the United States. The government contends and the trial judge found that these oaths were taken falsely or with mental reservations by appellants Sotzek and Koehler and therefore that the orders admitting them to citizenship were fraudulently obtained. The evidence was sufficient to show the following as to each of appellants Sotzek and Koehler.

In the case of Sotzek, the court found that he emigrated from Germany to the United States in 1928, filed his petition for naturalization on September 20, 1935, and was admitted to citizenship on March 2, 1936. Several months later he became a member of the German American Bund in New York and for the next four years took an active part in its affairs, being appointed a member of the Ordnung Dienst, or O. D., a uniformed group of men patterned after the Nazi Storm Troopers in Germany and organized as a military unit of the bund. At meetings which he attended, there were celebrations of the anniversary of Hitler's rise to power and of other events which by the appellant's own admission no American organization would celebrate. He denied, however, that he ever heard National Socialism discussed. In 1940 he was expelled from the German American Bund for "undisciplined conduct," though he says he had previously left the organization. Thereafter he joined the Kyffhaeuser Bund, a group consisting of German veterans of the first World War who worked for the relief of German war prisoners by sending them money and bundles. This organization was dissolved after the attack on Pearl Harbor.

Aside from this evidence of the appellant's membership and activity in the bunds, there was considerable other testimony adduced to show his state of mind with respect to an adherence to principles of government. On the day of his naturalization he asserted, "I am an American, but don't forget that I am a German too." He was quoted as endorsing Hitler's anti-Semitic purge of occupied Europe, and as approving as good for workers the sort of socialist government which Hitler was imposing on Germany. In his own behalf Sotzek denied having done anything inimicable to the welfare of the United States, explained his bund membership on the ground that he had joined for purely social reasons, and asserted that he left the organization when he began to realize that there was something wrong about it. He testified that he opposes the present German government because of its persecution of religious minorities and he recognizes that there is a conflict between the tenets of the German and the American governments. He claimed to value his citizenship highly and asserted a disposition to do anything to retain it, including a willingness to fight for this country against Germany. There was evidence that Sotzek had a commendable record of performance as a tool maker in a factory engaged wholly in the production of war materials.

After analyzing the evidence and making his findings, the trial judge concluded that the government had sustained its case against him and he therefore ordered a revocation of the order of naturalization and a cancellation of the certificate.

In the case of Koehler, the evidence and findings show that in 1934 he became a member of the Friends of New Germany and later of its successor organization, the German American Bund. His petition for naturalization was filed on February 29, 1940, and granted on December 9 of the same year. Since 1923 he had been employed by the publishers of bund newspapers and he admitted having promoted the things which they advocated. In 1939 he registered for military service with the German army as he was required by German law to do, though at the time he was expecting to become an American citizen. He stated that he would not fight against Germany under any circumstances, but he now claims that he was provoked by the district attorney into making such a statement, to which he does not in fact subscribe. His membership in the bund and his registration for German military service he testified were required of him by his employers as a condition of retaining his employment. While according to his testimony he was not a member of the O. D., he did wear its uniform and march in parades through the streets of New York City; this too he says was necessary to keep his position with the bund newspaper. He did not on the whole, take a very active part in the bund affairs, the judge found, but the court felt that his membership for six years preceding his naturalization and his statements since showed an attitude of at least divided allegiance, and judgment was, accordingly, entered for the United States.

During the pendency of this appeal the...