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.
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), (l) 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 Overt act (m) was withdrawn upon the Government's motion at the close of the case in chief; overt act (n) was ordered withdrawn from consideration by the jury upon defendant's motion for acquittal pursuant to Rule 29(a) Fed.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 accordane 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.
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"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,  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.
For full text of instructions, see 96 F. Supp. 837.
"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 the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or
"`(g) Deserting the military or naval forces of the United States in time of war, provided he is convicted thereof by court martial * * *; or
"`(h) Committing any act of treason against, or attempting by force to overthrow or bearing arms against the United States, provided he is convicted thereof by a court martial or by a court of competent jurisdiction; or
"`(i) making in the United States a formal or written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense; or
"`(j) Departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the land or naval forces of the United States.'
"Subsection (i) was added to § 401 on July 1, 1944; and subsection (j) was added on September 27, 1944. So subsections (i) and (j) did not become effective until the dates just stated.
"Any American citizen who does voluntarily any of the acts set forth in § 401, which I have just read, is thereby expatriated and thus loses his or her American citizenship. Our law presumes that such action, voluntarily taken, evidences an intent to renounce, or abandon allegiance to the United States, and with it of course American citizenship and all rights pertaining thereto.
* * * * * *
"Section 408 of the Nationality Act of 1940 [8 U.S.C.A. § 808] provides in substance that `loss of nationality * * * shall result solely from the performance by a national of the acts' specified in § 401 which I have read to you. Section 410 provides that nothing in the Nationality Act of 1940 `shall be applied in contravention of the provisions of any treaty or convention to which the United States is a party upon October 14, 1940.' There was no treaty or convention between the United States and Japan in effect October 14, 1940, which made any provision with respect to citizenship or expatriation.
"As applied to this case, then, § 408 means that the acts specified from time to time in § 401 are the sole and exclusive methods whereby a born American citizen can exercise the right of expatriation, and thus lose American nationality or citizenship.
* * * * * *
"At all times therefore since the effective dates of the various provisions of § 401 of the Nationality Act of 1940 — that is to say, since January 13, 1941 with respect to subsections (a) to (h) inclusive, since July 1, 1944 with respect to subsection (i), and since September 27, 1944 with respect to subsection (j) — a born American citizen desiring to lose or terminate or discontinue American nationality or citizenship was required by our law to do voluntarily — of free will — one or more of the acts specified in subsections (a) to (j) inclusive of § 401, thereby evidencing an intention to renounce or abandon American nationality and with it allegiance to the United States.
"When American citizenship is thus renounced or abandoned, all rights and privileges, as well as all duties and obligations, of that citizenship thereupon cease.
"And, as applied to this case, once expatriated, once American citizenship is renounced or abandoned — the former citizen cannot reacquire any right or privilege of American citizenship without first becoming naturalized. As stated before, the acquiring of American citizenship through naturalization proceedings is not involved in this case."
If the plain meaning of the language of § 408 of the Nationality Act of 1940, 8 U.S.C.A. § 808. — "The loss of nationality under this chapter shall result solely from the performance by a national of the acts or fulfillment of the conditions specified in this chapter" — can be said to admit of doubt as to legislative intention, that doubt in my view is entirely dissipated by the legislative history of the Act. See: Dos Reis ex rel. Camara v. Nicolls, 1 Cir., 1947, 161 F.2d 860, 863-868; cf. Mackenzie v. Hare, 1915, 239 U.S. 299, 308-312, 36 S.Ct. 106, 60 L.Ed. 297; Leong Kwai Yin v. United States, 9 Cir., 1929, 31 F.2d 738, 740.
But even if it were an erroneous view of the law to tell the jury that "the acts specified from time to time in § 401 are the sole and exclusive methods whereby a born American citizen can exercise the right of expatriation, and thus lose American nationality or citizenship," — the error must in the circumstances of this case be deemed academic and harmless.
The defendant testified that when he caused his name to be entered in a koseki tohon or family register in Japan, he believed that thereby he renounced or lost American citizenship. And the jury were instructed that: "As to any overt act or acts * * * which you may find to have been committed by the defendant, even though you also find the defendant was an American citizen, if you further find that at the time of such overt act or acts, if any, the defendant honestly believed that he was no longer a citizen of the United States, then the defendant could not have committed such overt act or acts with treasonable intent, and you must acquit him."
So the jury could not erroneously have convicted the defendant under the instructions given without finding that he did not honestly believe he was no longer a citizen of the United States, but had nonetheless somehow expatriated himself and was not aware of it! Thus the defendant's contention becomes ephemeral indeed when it is remembered that the whole burden of his testimony at the trial, and of his counsel's plea to the jury, was to the effect that, during the period when the acts of treason were alleged to have been committed, the defendant did honestly believe he was no longer an American citizen and hence owed no further allegiance to this country of his birth.
The final ground to be noticed is the contention that "The verdict was the result of coercion, compulsion and fear after the jury had announced that they were unable to arrive at a verdict."
Before retiring to deliberate, the jury were instructed as follows as to the forms of verdict:
"Before you may convict the defendant of the crime of treason charged, you must find from the evidence that the prosecution has proved beyond a reasonable doubt the eight essential elements of the charge in the manner required to be proved as previously explained in these instructions. The eight essential elements of the charge are:
"First: That during the period specified in the indictment, namely, August 8, 1944 up to and including August 24, 1945, the defendant was an American citizen owing allegiance to the United States;
"Second: That while an American citizen owing allegiance to the United States, the defendant cast his lot with and adhered to the enemies of the United States, to wit, the Government of Japan, with the intent to betray the United States;
"Third: That while so adhering to the enemies of the United States, the defendant committed one or more of the overt acts alleged in the indictment, and submitted for your consideration, and proved by the direct testimony of at least two witnesses to the whole of the same overt act;
"Fourth: That the overt act or acts so committed by the defendant actually gave aid and comfort to the enemies of the United States, to wit, the Government of Japan;
"Fifth: That in so adhering to the enemies of the United States, and in so giving aid and comfort to such enemies, the defendant acted knowingly, intentionally, wilfully, unlawfully and feloniously;
"Sixth: That in so adhering to the enemies of the United States, and in so giving aid and comfort to such enemies, the defendant acted traitorously and treasonably, and for the purpose and with the intent to betray the United States and to adhere to, and give aid and comfort to the enemies of the United States, to wit, the Government of Japan;
"Seventh: That such overt act or acts of treason were so committed by the defendant at and near Camp Oeyama on the Island of Honshu, Japan, outside the jurisdiction of any particular state or district of the United States; and
"Eighth: That the Southern District of California is the district of the United States wherein the defendant was thereafter first found and apprehended.
"As stated before, the burden is upon the prosecution to prove beyond a reasonable doubt every one of these eight elements as charged. If the evidence fails to convince the jury beyond a reasonable doubt with respect to any of these eight elements, the jury must acquit the defendant.
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"Upon retiring to the jury room, you will select one of your number to act as foreman. The foreman will preside over your deliberations and will be your spokesman in court.
"Thirteen forms of special verdict and a form of general verdict have been prepared for your convenience. You may take these forms to the jury room. I direct your attention first to the forms of special verdict.
For form of special verdict, see 96 F. Supp. 851.
* * * * * *"You will note that the eight specific interrogatories or questions asked as to each of the alleged overt acts submitted to you call for a `yes' or `no' answer covering each of the eight essential elements of the charge with respect to each alleged overt act.
"You are to give the unanimous answer of the jury to each of the eight questions set forth on each of the thirteen special verdicts. Your foreman will write the answer of the jury in the space provided opposite each question, and then date and sign each of the thirteen special verdicts.
"After you have completed your findings and have set them forth in your special verdicts, you will then consider your general verdict.
"The jury will remember at all times that the defendant cannot be guilty of treason for doing any overt act or acts alleged in the indictment and submitted for your consideration, unless you unanimously find from the evidence beyond a reasonable doubt the existence of the eight essential elements of the charge with respect to such overt act or acts; which is to say that, with respect to each of the thirteen overt acts charged in the indictment and submitted for your consideration, the defendant cannot be guilty unless you unanimously find `yes' to be the true answer to each of the eight interrogatories asked on the form of special verdict dealing with the alleged overt act.
"So if your answer be `no' to one or more or all of the eight questions asked as to each of the thirteen overt acts submitted to you, your general verdict must be `not guilty.' On the other hand if, as to any one or more of the overt acts submitted to you, your answer be `yes' to all of the eight questions asked, then your general verdict would be `guilty.'
* * * * * *
"When you have reached unanimous agreement as to your general verdict, you will have your foreman fill in, date and sign this form to show the general verdict — `guilty' or `not guilty' — to which you unanimously agree.
"When you have completed and recorded your findings on the forms of special verdict, and have completed your general verdict, you will return with them into court.
"It is unnecessary of course to add the caution that nothing said in these instructions — nothing in the forms of general and special verdicts prepared for your convenience — is to suggest or convey in any way or manner any intimation as to what verdict I think you should find. Your verdict is your sole and exclusive duty and responsibility."
The jury were also instructed as follows concerning the manner of their deliberations:
"The law of the United States permits the judge to comment to the jury on the evidence in the case. Such comments are only expressions of the judge's opinion as to the facts; and the jury may disregard them entirely, since the jurors are the sole judges of the facts.
* * * * * *
"During the course of the trial, I have asked questions of certain witnesses. My object was to bring out in greater detail facts not then fully covered in the testimony. You are not to assume that I hold any opinion as to the matters to which the questions related. Remember at all times that you, as jurors, are at liberty to disregard all comments of the court in arriving at your own findings as to the facts.
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"There is nothing peculiarly different in the way a jury is to consider the proof in a criminal case from that in which all reasonable persons treat any question depending upon evidence presented to them. You are expected to use your good sense; consider the evidence for only those purposes for which it has been admitted and give it a reasonable and fair construction.
"If the accused be proved guilty, say so. If not proved guilty, say so. Remember at all times that a defendant is entitled to acquittal if any reasonable doubt remains in your minds.
"Remember also that the question before you can never be whether the Government wins or loses the case. The Government always wins when justice is done, regardless of whether the verdict be guilty or not guilty.
"The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.
"It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself but do so only after a consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to change an opinion when convinced it is erroneous. But do not surrender your honest convictions as to the weight or effect of evidence solely because of the opinion of the other jurors, or for the mere purpose of returning a verdict.
"The attitude of jurors at the outset of their deliberations is important. It is seldom helpful for a juror, upon entering the jury room, to make an emphatic expression of opinion on the case or to announce a determination to stand for a certain verdict. When a juror does that at the outset, individual pride may become involved, and he or she may hesitate to recede from an announced position even when later shown it is not correct. You are not partisans. You are judges — judges of the facts. Your sole interest is to ascertain the truth. You will make a definite contribution to the administration of justice if you arrive at an impartial verdict in this case.
"If it becomes necessary during your deliberations to communicate with the Court, do not indicate in any manner how the jury stands, numerically or otherwise, on the question of the guilt or innocence of the accused, until you have reached an unanimous verdict."
The case was submitted to the jury at 3:30 on Wednesday afternoon, August 25, 1948. The jury were taken to dinner at 5 P.M., returned at 6:50 P.M., and taken to their hotel for the night at 9:30 P.M. Jury deliberations on Wednesday thus consumed 4 hours and 10 minutes.
On Thursday, August 26th, the jury returned to the jury room at 9:40 A.M., requested the reading of certain testimony at 10:15 A.M., were taken to lunch at 11:50 A.M., returned at 1:30 P.M., were taken to dinner at 6 P.M. and thence to their hotel for the night. The labors of the jury on Thursday thus consumed 6 hours and 40 minutes.
For Aug. 26, 1948 proceedings, see 96 F. Supp. 852.