United States v. Tomoya Kawakita

• Decision Date: 22 June 1951
• Docket Number: No. 19665.,19665.
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. TOMOYA KAWAKITA.

96 F. Supp. 824

UNITED STATES v. TOMOYA KAWAKITA.

No. 19665.

United States District Court S. D. California, C. D.

November 1, 1950.

Judgment Affirmed June 22, 1951.

James M. Carter, Cameron L. Lillie, Los Angeles, Cal., for plaintiff.

Morris Lavine, Los Angeles, Cal., for defendant.

MATHES, District Judge.

The defendant was charged with the crime of treason against the United States by indictment returned November 14, 1947. Fourteen overt acts of treason, identified in the indictment as "(a)" to "(n)" inclusive, were alleged to have been committed by the defendant in Japan.

Trial by jury opened on June 18, 1948 and concluded some ten weeks later on September 2, 1948. The jury were unable to reach unanimous agreement as to overt acts (e), (f), (h), (1) and (o), but found the defendant guilty as to overt acts (a), (b), (c), (d), (g), (i), (j) and (k). Overt act (m) was withdrawn upon the Government's motion at the close of the case in chief; overt act (n) was ordered withdrawn from consideration by the jury upon defendant's motion for acquittal pursuant to Rule 29(a) Fed.Rules Crim.Proc. 18 U.S. C.A.

The defendant now moves for judgment of acquittal, including in the alternative a motion for a new trial as permitted by Rule 29(b) Fed.Rules Crim.Proc. This alternative motion is based upon thirty-five separate grounds. The defendant also presents a motion in arrest of judgment under Rule 34 Fed.Rules Crim.Proc. upon the thirty-five grounds set forth in the motion for acquittal and eleven additional grounds.

Only three of these grounds merit discussion here. The first is: "The court erred in instructing the jury as to dual citizenship."

On this subject the jury were instructed as follows:

"It is stipulated here that the defendant was born at Calexico, California, on September 26, 1921, and thus became a born citizen of the United States.

"Every born citizen and every naturalized citizen is termed a `national of the United States.' The term `national' includes all persons owing permanent allegiance to the United States 8 U.S.C.A. § 501(a), (b).

"The phrase `permanent allegiance' refers to the duty of loyalty and obedience which every American citizen owes `to defend the Constitution and laws of the United States against all enemies, foreign and domestic,' so long as he or she remains a citizen of the United States.

"The terms `citizen,' `subject' and `national' are used interchangeably in this case to denote a member of a sovereign state or nation who owes allegiance to such state or nation in return for protection received from such state or nation.

"It is stipulated that the defendant's parents were born in Japan, and by reason thereof have always been Japanese nationals or subjects owing allegiance to Japan.

"According to the law of Japan, the defendant himself, by reason of his Japanese parentage, was from birth a Japanese national or subject owing allegiance to Japan.

"This conflict in the laws of the two countries gives rise to what is sometimes called `dual' nationality or citizenship; which means, as applied to this case, that the defendant became an American citizen upon birth, according to our law, because born in the United States; and also, became a Japanese national upon birth, according to Japanese law, because of his Japanese parentage.

"Under our law, any American citizen of alien parentage may, on becoming of age, renounce his American citizenship and thus become a citizen of only the country of his parents.

"The question for you to determine on this phase of the case from all the evidence is whether or not at any time prior to or during the period specified in the indictment, the defendant did renounce or abandon his American citizenship.

"Questions as to whether or not a person is an American citizen and his or her duty of allegiance as such are determined in accordance with the law of the United States. But whenever our laws incorporate by reference or adopt the laws of another country, the foreign law thus adopted is to be considered the same as if a part of the law of the United States. What the foreign law is — in this case the law of Japan — is a question of fact to be determined by the jury from the evidence, the same as any other question of fact.

* * * * * *

"Under our law an American citizen cannot owe `permanent allegiance' to more than one country at any given time. That is to say, it is legally impossible for any American citizen to owe conflicting allegiance to any other country so long as he or she remains a citizen of the United States.

"However, our law declares the right of expatriation to be `a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness * * *.' 8 U.S. C.A. § 800. Expatriation is the voluntary renunciation of one's citizenship — a voluntary act done with intent to renounce or forswear allegiance to the country of one's birth.

"In order then to be relieved of the duty of allegiance imposed by American citizenship, one must do some voluntary act of renunciation or abandonment of American nationality and allegiance. And it is the policy of our law to permit free exercise of the right of expatriation by all American citizens everywhere."

The defendant urges that: "Persons residing in Japan who have * * * dual citizenship of both the United States and Japan, are * * * called upon while in Japan to respond to that country's call of loyalty."

He obviously refers to what is recognized in our law as temporary allegiance, i. e., the duty of every person to obey the local laws of the country where he may happen to be. As Mr. Justice Field put it in Carlisle v. United States, 1872, 16 Wall. 147, 83 U.S. 147, 154-155, 21 L.Ed. 426; "By allegiance is meant the obligation of fidelity and obedience which the individual owes to the government under which he lives, or to his sovereign in return for the protection he receives. It may be an absolute and permanent obligation, or it may be a qualified and temporary one. The citizen or subject owes an absolute and permanent allegiance to his government or sovereign, or at least until, by some open and distinct act, he renounces it and becomes a citizen or subject of another government or another sovereign. The alien, whilst domiciled in the country, owes a local and temporary allegiance, which continues during the period of his residence." (cf. Rex v. Joyce, 173 L.T. 377 (1945), aff'd sub nom. Joyce v. Director of Public Prosecutions, 1946 A.C. 347.)

For any conduct required of him by the laws of Japan, the defendant at bar was unequivocally excused by an instruction to the jury that: "As to any overt act * * * which you may find to have been committed by the defendant, if you further find that the defendant did not do the act * * * willingly or voluntarily, but so acted only because performance of the duties of his employment required him to do so or because of other coercion or compulsion, you must acquit the defendant."

And as added safeguard the jury were further instructed: "You have been cautioned that this is not a so-called `war crimes' trial — that the defendant is not on trial for maltreatment or deprivations suffered by American prisoners of war. It is not charged here that mistreatment or even cruelty to prisoners of war alone, if such occurred, constitutes the crime of treason. Nor is it claimed that the defendant is responsible for the conditions which existed generally in any Japanese prisoner of war camp. The defendant is not here sought to be charged with responsibility for any acts of others."

The next contended ground of the motions which merits discussion is that the court erred in instructing the jury that § 401 of the Nationality Act of 1940, 8 U.S.C.A. § 801, specifies the exclusive methods whereby a born American citizen can exercise the right of expatriation, and thus lose American nationality or citizenship.

The instructions¹ on this phase of the case were as follows:

"In 1940 the Congress enacted and the President approved an act `to revise and codify the nationality laws of the United States into a comprehensive nationality code' known as the Nationality Act of 1940.

"The Nationality Act of 1940 has been in effect since January 13, 1941.

"Prior to the effective date of the Nationality Act of 1940, our law provided that any American citizen could expatriate himself by doing any voluntary act which evidenced an intent to renounce or abandon American nationality and allegiance; but our law further provided: `That no American citizen shall be allowed to expatriate himself when this country is at war' 34 Stat. 1228.

"When the Nationality Act of 1940 became effective, those provisions of our law were repealed; and at all times since January 13, 1941, American citizens have been permitted to expatriate themselves during wartime, but only in the manner provided by treaty or by the provisions of the Nationality Act of 1940.

"Section 401 of the Nationality Act of 1940 8 U.S.C.A. § 801, in effect since January 13, 1941, provides that:

"`A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:

"`(a) Obtaining naturalization in a foreign state * * *; or

"`(b) Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state; or

"`(c) Entering, or serving in, the armed forces of a foreign state * * * if he has or acquires the nationality of such foreign state; or

"`(d) Accepting, or performing the duties of, any office, post, or employment under the government of a foreign state or political subdivision thereof for which only nationals of such state are eligible; or "`(e) Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory; or

"`(f) Making a formal renunciation of nationality before a diplomatic or consular officer of...