noting the court's "broad discretion" in the consolidation of cases and observing that it is inappropriate where "the issues . . . are certain to lead to confusion or prejudice"Summary of this case from Sommerfield v. City of Chicago
May 29, 1945. Rehearing Denied June 28, 1945.
Appeal from the District Court of the United States for the Eastern District of Wisconsin; F. Ryan Duffy, Judge.
Action by the United States of America against Paul Knauer to revoke for fraud and cancel defendant's certificate of naturalization. From a judgment revoking and canceling the certificate, defendant appeals.
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.
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 spiritual leader. We pledge ourselves to the community of blood of all Germans in all the world."
The Bund slogan was, "One folk, One state, One leader." The Bundesfuehrer had supreme and unlimited authority. The Bund was the means of conveying the idea to all persons of German blood in this country that they owed obedience and loyalty to the leader of the German nation, Adolph Hitler, and regardless of where they were or of what obligations they had assumed toward other countries, under the concept of racial superiority, the German "Volkstum" was superior to any obligation to the United States, and persons of German blood were to remain always Germans.
The Bund looked forward to the day when National Socialism would supplant the constitutional form of government in the United States, and its political program here was actively isolationist. Its endeavor was to keep America out of war, not to help America, but to help Germany. Bund commands advocated and directed noncompliance with the Alien Registration Act of 1940, 8 U.S.C.A. §§ 137, 155, 156a, 451 et seq., and Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq.
There was a Bund unit in Milwaukee. There were no records kept of membership. George Froboese was the Midwestern Gauleiter and Bundesfuehrer. He was the leader of the Milwaukee unit. The Bund principles were followed by the unit in Milwaukee, and the Bund's commands which were received monthly from national headquarters, were read to the meetings. The Milwaukee unit observed the Hitler salute and closed its meetings with the "Horst Wessel" song. They sponsored motion pictures furnished by the Nazi propagandist, Dr. Goebbels. In fact, the defendant himself made arrangements while in Germany in 1934 to have the Nazi propaganda films sent to the Milwaukee unit.
The Milwaukee unit had its storm troopers, its camps, its Jugendschaft, and Madchenschaft. It was very much interested in the training of youth, and one of its subleaders was sent to Germany for a course of training in the Nazi practices. Upon his return to Milwaukee, this Bund representative tried to put into force and effect the devices for youth training which he had learned in Germany.
The Milwaukee unit sent representatives to the district and national conventions of the Bund. In the Bund pilgrimage to Germany in 1936, George Froboese, Milwaukee Bundesfuehrer, was present, and he paraded in Bundist uniform before the leading Nazis of Germany. Froboese was permitted to meet Hitler and had a picture taken shaking hands with Hitler. While in Germany, the Bund representatives placed wreaths on the grave of Horst Wessel. Representatives of the Milwaukee Bund, together with other Bund leaders, made Hitler a gift of $3,000.00 together with a "Golden Book" containing the names of the persons who had contributed to the fund.
The trial court found that the German-American Bund and its predecessor organizations were un-American and subversive, and that the teachings of such organizations were contrary to the principles of the United States. Many other courts have held the same. United States v. Claasen, D.C., 56 F. Supp. 71; United States v. Wilmovski, D.C., 56 F. Supp. 63; United States v. Bregler, supra; United States v. Baecker, supra; United States v. Holtz, supra; United States v. Sautter, supra; United States v. Wolter, D.C., 53 F. Supp. 417; United States v. Haas, D.C., 51 F. Supp. 910; United States v. Ritzen, D.C., 50 F. Supp. 301; United States v. Schuchardt, D.C., 49 F. Supp. 567; United States v. Baumgartner, D.C., 47 F. Supp. 622; United States v. Kuhn, D.C., 45 F. Supp. 407.
The record abundantly supports this finding. This was no beer drinking, song singing gab-fest in Deutsch by a group of nostalgic old burghers. This organization had a serious purpose, a tragically serious and sinister purpose. It was, as the defendant said, "Hitler's grip on America." It was the instrument chosen to lay the ground work for Nazi infiltration into this country, and was the Nazi way of training little fuehrers and gauleiters and fifth columnists in anticipation of the day when Adolph Hitler would conquer and rule the world. One cannot read this record without being profoundly impressed with the serious aims and purposes of the subversive, un-American Bund. How one can be an understanding, purposeful member of such an organization and still claim to be loyal to the principles of our government and to have forsworn all allegiance to the Third Reich is beyond us to understand.
This defendant was not only a member of this subversive, un-American Bund, he was an active participant and an enthusiastic worker in forwarding the purposes of the Bund. True, there is no record of his membership in the Bund in the sense that a membership roll has been discovered. Membership rolls of the Bund were not kept. Such as did exist were ordered destroyed. Organizations that act clandestinely do not keep membership rolls and other records that may be used to illuminate their purposes. Next to George Froboese, no man was as active in the affairs of the Milwaukee unit of the Bund as was this defendant. He attended its district conventions. He attended faithfully the open and secret meetings of the Bund held at Forst Keller and the Highland Cafe. He worked with Froboese in conducting the affairs of the Milwaukee unit. He went to Froboese's home and collaborated with him in drawing up planks for the Bund platform to be introduced at its national convention. Jointly with Froboese, he wrote letters to Hitler and sent copies to Hess and Himmler. One letter was written by Froboese and the defendant to Adolf Hitler on his birthday. Letters to Hitler were closed with the expression, "In blind obedience," or, "In blind obedience I follow you." One of the letters to Hitler contained the names of 700 German nationals. The defendant helped Froboese prepare articles for publication in the Bund paper, Weckruf. The defendant was not only a subscriber and reader of this publication, he was also a reader of Facts In Review, a publication issued and circulated by the well known propaganda agency of the German Reich, the German Library of Information. Nothing in the way of statements or propaganda was to be sent out from the Milwaukee Bund unless approved by Froboese or the defendant.
Under the guidance of Froboese, the defendant, and other Bundists of Milwaukee, the American Protective League was formed. This was a violently anti-Semitic organization. The defendant was admittedly an intense anti-Semite. A copy of the organization papers was sent to Hitler by Froboese and the defendant acting together. Some of the joint communications were sent to Herr Bohle at Stuttgart, Germany. He was head of the Nazi Deutsches Ausland Institut, the organization responsible for effective German infiltration in foreign countries.
When German nationals were being assembled to be sent back for work in Germany, defendant, at the Bund headquarters in the Highland Cafe, interviewed the German workers and aided in their return to Germany. This was done in cooperation with the German consuls. The Milwaukee unit of the Bund kept close touch with the German Consulate both in Milwaukee and in Chicago, and the defendant was one of the most active contacts with the German consuls. The defendant, acting under the credentials of the German consul in Chicago, collected funds for the winter relief in Germany and he forwarded the collections made to the German consul. This was an undertaking officially conducted by the German government and handled by the German Ministry of Propaganda under Dr. Goebbels.
Persistent efforts were made by the Bund to gain control of the Federation of German-American Societies of Wisconsin, and the defendant and other Bund leaders tried to have the swastika flag carried in the parades of the Federation and displayed in the parks where celebrations were held. When the question came to a vote before the Federation, the defendant voted in favor of displaying the swastika at the Federation's meetings. This attempt failed. The next year the defendant brought the question up again and urged that the swastika flag be displayed, but he was again voted down. Froboese and other Bundists left the hall in anger when this action was taken. Notwithstanding the fact that the Federation had voted against displaying the swastika flag, the Bundists raised it at the German Day celebration in 1936 and when it was torn down there was a violent disturbance. Again the defendant sought approval of the Federation for the display of the swastika flag, and again the Federation refused to follow the defendant. The Federation was not dominated by the Bundists.
The Bundists then set out to organize societies in opposition to the Federation, and in doing so circulated a pamphlet entitled Merely Our Point of View. In this pamphlet it was stated:
"* * * With heads high and in the firm belief in the greatness of the German Reich Fuehrer we shall wear the Honor Cross conferred by Adolf Hitler."
Thereafter the German-American Citizens Alliance was formed. It was organized in January, 1937. At first its meetings were held at Bauman's Tavern, but later they were moved to Bund headquarters at the Highland Cafe. The most frequent attendants at the meetings of this organization were the defendant, Froboese, and other Bund leaders. Often the same people who attended the meetings of the Bund were the attendants at the meetings of the Alliance. The Alliance was used to organize Germans who were not bold enough to join the Bund. In other words, it was a front for the Bund.
Fifty-five days before his naturalization, the defendant was accepted as a member of the Alliance and was immediately put upon its executive committee. His first activity in the Alliance was to collect newspaper articles that attacked Germans and German-Americans. In 1937 he made monthly reports on these articles. In March of 1938, the defendant was elected Vice President of the Alliance, and conducted 42 out of 57 of its meetings. The Alliance was dominated and controlled by the defendant. Fifty-three days after his naturalization, the defendant acted as master of ceremonies at the Alliance's celebration of German Day. Shortly after his naturalization, he began the preparation of the program for this celebration which included as a speaker, one Dr. Baer, a representative of the German Reich. Two months after his naturalization, the defendant urged the Alliance to sponsor a Solistice ceremony, which was a solemn rite of the Nazis at which a wooden swastika was burned while around the burning swastika the observers joined hands in a circle to symbolize the unity of the German people everywhere, a well known tenet of Nazi philosophy which was faithfully accepted and followed by the Bund.
The defendant wrote letters attacking the Kenosha City Council for its refusal to allow the Bund the use of the city park for a meeting. When use of the Milwaukee Auditorium was denied to the Alliance, defendant led the successful court fight in obtaining its use, and his testimony in the hearing which was held in that case was to the effect that there was no connection between the Bund and the Alliance. When steps were taken by the authorities of Wisconsin to revoke the license of the Highland Cafe, the defendant was the leader in the creation of a fund to finance an appeal to the courts to test the validity of this revocation of the Cafe's license. When the court refused to reinstate the license, defendant wrote a threatening letter to the judge.
The defendant was well acquainted with the national Bundesfuehrer, Fritz Kuhn, and solicited funds for his defense. When Kuhn was convicted in New York, defendant sent a scurrilous telegram to the presiding judge and gave newspaper publicity to this telegram. Defendant attended the trial of Nazis in Chicago. He was well acquainted with Wilbur Keegan, the national legal counsel for the Bund, and the defendant conferred with him relative to his denaturalization proceedings months before they were instituted. When Froboese committed suicide, it was the defendant who eulogized him as friend and comrade and called him "the most persecuted man in Milwaukee."
The defendant was active in enrolling his own daughter in the Jugendschaft of the Bund. This was prior to his taking the oath of American citizenship. He took his daughter to and from the meetings held by the Milwaukee Jugendschaft. He owned a cottage at the Bund camp where he was frequently in conference with Froboese.
At every opportunity the defendant favored and advocated cooperation between the Alliance and the Bund. Dr. Tannenberg, the acting Consul General of the German Reich, presented to the Alliance the swastika flag that had been torn down at the German Day celebration. The Nazi activities of the Milwaukee unit of the Bund became so offensively Nazi that it was suggested that the reputation of the Bund might be a hindrance to the growth of the Jugendschaft, and the Jugendschaft activities and members were transferred to the sponsorship of the Alliance with the defendant's approval.
The defendant worked with Froboese to establish a united front of Germans. One hundred delegates from various German groups attended a meeting in Milwaukee in 1940, and both defendant and Froboese addressed the meeting. When a delegate at this meeting suggested that the American public would not support persons connected with the Bund, Froboese replied, "We do not have to have the support of public opinion. Give me my Germans and I will do the job." The event was repudiated by the Wisconsin Federation of German-American Societies as "another one of the discredited Bund activities." A meeting of the Alliance was scheduled for December 10, 1941, three days after Pearl Harbor, and two days after Germany had declared war on the United States, but no one came except the defendant and the secretary, and the meeting was called off "because of bad weather."
With full knowledge of the aims and purposes of the Bund, defendant was Bundesfuehrer Froboese's right hand man in the direction of the activities of the Bund. He was fully acquainted with the Bund's connection with the German consular representatives and with the German Foreign Institute in Stuttgart, Germany. He was the ardent defender in print and on the platform of the Bund and all of its subversive activities. He was part and parcel of it. He was not just a passive member or a fellow traveler. He was an active leader. If anyone criticized or took issue with the Bund, he was the first to rush to its defense. He continued even at his trial to defend the Bund. Although he denied Bund membership, his innumerable contacts with the Bund and its Bundesfuehrer, Froboese, before, at the time, and after, his naturalization, warrant the District Court's finding that defendant was a member of the Bund and fix his membership during a period from 1936 to 1941.
Notwithstanding all of his work and activities on behalf of the Bund, the Alliance, and the Nazi party of Adolf Hitler and Germany in general, the record reveals no single act of loyalty to the United States on the defendant's part. The evidence is too clear that his heart was not in America except as he could use America to further the purposes of the Nazis in Germany. The trial court in his findings pointed out more in detail than we have the various activities of the defendant in the interest of Germany. We find all of the trial court's findings clearly, substantially, and unequivocally supported by the record. How any fair minded, conscientious judge could have heard and considered the evidence in this record and reached any other conclusion than Judge Duffy reached is beyond us to understand.
This case in all its aspects has no resemblance to the case of Baumgartner v. United States, supra. In that case the defendant had given only lip service to his belief in the Nazi theory that all things German were superior. He was not shown to be, as this defendant clearly was, an ardent Nazi and obedient follower of Adolf Hitler, and a tireless worker in "his master's vineyard."
Counsel for the defendant at the argument admitted that the judgment of the District Court was correct, that the record would support the judgment, if Judge Duffy was warranted in believing the testimony of one Claire Mertons, who was the secretary of George Froboese. The defendant testified that he did not know her and had never seen her until she testified at the trial. Her clear, straight forward testimony that she was attending these meetings and acting as she did act, is corroborated by the testimony of two members of the Milwaukee Police Force to whom at various times she reported her activities with Froboese and the defendant and by the testimony of a judge in Milwaukee with whom she had discussed her activities at the time. The judge testified in response to questions put to him by the defendant that the reputation of Claire Mertons for truth and veracity was good.
Her testimony placed the defendant in close collaboration with Froboese in the management of the Milwaukee Bund program. She met with Froboese and the defendant at the home of Froboese where she did the secretarial work as Froboese and the defendant wrote letters to Hitler and other Nazis in Germany, prepared the program for Bund meetings, and wrote the organization papers for the American Protective League, planks for the Bund platform, and articles for publication in the Bund papers and others. She tied the defendant firmly to the subversive activities of the Bund. It was an inside view of the secretive part played by the defendant in forwarding the Nazi program in Milwaukee. Mrs. Mertons' testimony was wholly credible and corroborated in many respects.
This record fairly reeks with the slimy tactics of Nazi propaganda and delineates the pattern of Nazi infiltration. It places the defendant in active, understanding, purposeful cooperation with the Nazi scheme. It had worked in Austria and other countries of Europe. That it failed here is due to no fault of the defendant, but is due to the sacrifice of brave American boys and their stalwart allies. This record is unmatched in our experience for infidelity, disloyalty, and conscious misrepresentation.
The defendant capped the climax and indelibly stamped his conduct as fraudulent in becoming naturalized when he said, when questioned as to whether his pro-Nazi conduct was not contrary to his allegiance to his American citizenship, "That (American citizenship) is a good thing to hide behind." That was a typical Nazi statement, deep rooted in the teachings of Mein Kampf.
The judgment of the District Court is affirmed.