141 F.2d 825 | 5th Cir. | 1944
Lead Opinion
From a judgment entered against him in a denaturalization proceeding
The district judge’s findings, conclusions and judgment were handed down before the Supreme Court had, in the Schneider-man case, Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796, authoritatively rejected the views acted on by some, but by no means all,
In assessing the adequacy, therefore, of the district judge’s findings to support his ultimate conclusion, and in determining the validity of that conclusion itself, it must be borne in mind that the findings were not made, the conclusions were not drawn with the benefit and in the light of the correct principle the Schneider-man case reaffirmed. In short, they were not made in the light of the principle; that, native born and naturalized citizens, we are one people;
The statutes clearly and fully lay down ing of citizenship. In support of the petition to cancel, not a word or line of evidence was offered as to any jurisdictional deficiency or defect in the proceedings leading up to the grant of the certificate. Not a line or word was offered as to things said and done in the five years’ probationary period prior to its granting, from which it might be inferred that the citizenship was not sought and assumed in the utmost good faith and sincerity.
Appellant, pointing this out and insisting that some of the facts found as to what Meyer did and said have not been truly found and that the findings as a whole do not fairly reflect the record, urges upon us that if all are taken as well found, they do not furnish any basis for the ultimate finding that Meyer, with fraud in his heart and on his lips, took the oath of allegiance, and that the solemn judgment of the court, which admitted him as qualified, should be set aside. We agree with appellant. Taken at best for the government, there was a showing merely that some of the views attributed to Meyer with regard to the war and Germany’s part in it showed that questions of right as between England and Germany and Germany and other European countries had been resolved by Meyer in Germany’s favor, and that his sympathies as between England and Germany were with Germany. Taking his views, as shown by the record as a whole rather than by isolated expressions attributed to him by persons holding views violently opposed to the ones they attribute to him, there is not a thing that Meyer said that was not lawfully said thousands of times during the same period by citizens both naturalized and native born. Taking them most strongly against him, there is not a thing that would support the conclusion that his citizenship was obtained by fraud.
In support of his ultimate conclusion, the district judge set down that the record showed: (1) that Meyer spoke disparagingly of the American people as contrasted with the German people;
Viewing the record as a whole and not picking it to pieces to find small hooks to hang adverse conclusions on as, since this is a suit to set aside a judgment, must be done, the picture emerges clearly, and it is not a picture of fraud but one, though sometimes of bad taste as well as bad judgment, of sincerity, of honesty, indeed, of honor. It is a picture of a highly educated specialist in German History, Literature and Language, holding views, some idealistic, some realistic, a sensitive, individualistic, and democratically inclined, but very human and very temperamental, person, contentious, combative, argumentative, excitable, with a strong sense of humor coupled with a meddlesomeness, indeed a kind of puckishness, but a person without pretense or guile. He was employed by Rice Institute while he was still teaching in Germany to come here as a part of the German Department, and hired to teach German because, being German, he was supposed to know German Language, German Literature, German History, German culture and the German people. He was so employed, and he was so admitted to this country and to citizenship, because it was thought that the culture of America was big enough and broad enough, and our people catholic enough to have and benefit from the best instruction obtainable in the cultures of the world. Emotional, excitable, neurotic,
The record contains a mass of things written and said by Meyer in the most complete accord with the highest American traditions of liberty, of free thought and of free speech, and the development of democratic institutions. At times, goaded or goading, he did give expression more in the nature of arguments or of philosophical disquisitions than of deliberate expressions of feeling, to sentiments with which most of us were not in' agreement then, and none of us, including the defendant are in agreement now that Germany has declared war on us and has shown that she is truly an Ishmaelite, her hand against every man’s, and every man’s hand against hers. We think it clear though that the sum and substance of what he said, and did, and wrote, the head and front of his offending, when considered in the light of the controlling principles of law, affords not the slightest basis for the conclusion that the solemn oath he took in the United States District Court for the Southern District of Texas, in 1935, was taken in fraud, that that tribunal or the United States was in any manner imposed upon, or that the judgment conferring citizenship on him must be set aside. Naturalized citizens are not wards of United States district attorneys, United. States investigators, United States judges. Whatever may have formerly been thought, it is now settled law
Section 338 of the Nationality Act of 1940, 8 U.S.C.A. § 738.
Compare Thomas Jefferson’s: “I have sworn upon the altar of Almighty God eternal enmity to every form of tyranny over the human mind”.
R.S. § 1999, 8 U.S.C.A. § 800; Cf. Secs. 801, 802.
Comitis v. Parkerson, C.C., 56 F. 556, 558, 22 L.R.A. 148.
Cf. United States v. Rovin, D.C., 12 F.2d 942; Rowan v. United States, 9 Cir., 18 F.2d 246; United States v. Sharrock, D.C., 276 F. 30. In United States v. Grenfeld, D.C.S.D.Tex., 34 F.2d 349, 350, it was said:
“ * * * unless- from a consideration of the evidence fraud plainly appears, the certificate may not be cancelled, for what must be here determined is the state of mind of the defendant at the time he obtained his certificate, and, since the effort is to set aside a solemn judgment of a court, that evidence must clearly establish the existence of a fraud.”
“Except for eligibility to the Presidency, naturalized citizens stand on the same footing as do native-born citizens”. United States v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 449, 73 L.Ed. 889. Cf. Sec. 801, Note 2, supra, applicable alike to naturalized and native born.
United States v. Herberger, D.C., 272 F. 278; United States v. Wursterbarth, D.C., 249 F. 908; United States v. Bergmann, D.C., 47 F.Supp. 765; United States v. Baumgartner, D.C., 47 F.Supp. 622; United States v. Ebell, D. C., 44 F.Supp. 43; United States v. Fischer, D.C., 48 F.Supp. 7. For instance, in United States v. Bergmann, supra, [47 F.Supp. 767], the district judge, quoting from a speech he had made as reported in the public press, declared:
“Fascism, Nazism, Communism postulate the omnipotence of the state and do not recognize the rights of the individual which may be asserted against it. They are the opposite of what you have been taught about the American government. The oath requires you to defend the Constitution and the laws of the United States against enemies for-, eign and domestic. This means that you must defend them against political philosophies opposed to them. If, after leaving this courtroom, you attempt to foster these alien philosophies in America, it will show that you do not mean this oath you take before God.”
“The Decision whether he was lawfully entitled to the citizenship which he procured, and consequently whether he is now entitled to retain it, must turn on the existence of his attachment to the principles of the Constitution when he applied for citizenship, and that must be inferred by the trier of fact from his conduct during the five year period. * * * Our concern is only that the declared will of Congress shall prevail—that no man shall become a citizen or retain his citizenship whose behavior for five years before his application does not show attachment to the principles of the Constitution.” (Emphasis supplied.) Stone, C. J„ dissenting in Schneiderman v. United States, 320 U.S. 171, 172, 63 S.Ct. 1358, 1359, 87 L.Ed. 1796.
This finding, though not material, is completely refuted by the record as a whole.
The record shows only that he did not blame Germany as others did for these victories, and sought to justify them as acts of war.
The meaning conveyed by this finding, that he was anti-American, finds no support in the record. He wrote and spoke often of the fine qualities of Americans, and his pleasure in being a citizen, and his statement that he could never be a real American was made, half in jest, half in earnest, to persons who were boasting of their long American ancestry as opposed to his lack of it.
One witness said that Meyer had said this, but his vast body of writings in the record and everything Meyer said and did showed him to be an individualist, a democrat, as that term has long been understood among us, a vigorous opponent of Fascism here and abroad. He was especially opposed to Communism, to National Socialism, to the idea of one party, and to the New Deal because he thought it akin to National Socialism.
Moraud, an unnaturalized Frenchman, testified that on one occasion in a discussion with him, Meyer used the words, “our countries”, as indicating Germany and France, a perfectly reasonable and natural thing to do.
This finding is without support in the record.
Among other things, this statute (note 2, supra) declares that the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty and the pursuit of happiness, and it concludes, “therefore any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs or questions the right of expatriation, is declared inconsistent with the fundamental principles of the Republic.”
Mrs. Meyer testified: “He felt here that people were drawing away from him after the war started. He felt that his colleagues were drawing away from him and were discriminating against him. * * * and I might say he was getting in a condition bordering on the stage of melancholia, and I was doing my best to bring him out of it but he came back from school every day, and there was an upheaval or something that had happened, some one had said something that hurt his feelings, he was discriminated against as a German bom naturalized citizen, and he was becoming more and more distressed over it, and he was very much worried.”
Mr. Meyer: “That was the feeling, everybody against me it seemed”. “When I said anything, everybody said, ‘Oh, just a Nazi, that—German’. Nobody would say, ‘That—Republican’. If I said something which everyone else could say, it was attributed to my not being a real American, so gradually I just got in the habit of feeling unwanted, and whenever I came to the Faculty Club I sat down, and people would just sit at another table. * * * I didn’t know that I had so many friends as I see now but at that time I was just under that constant pressure.”
Deevey, a student of Meyer, testified: “I should say he is inclined to be critical of a great many things. It seems to me it grows out of his technique of teaching, that is, the technique of conversation is of this sort. He likes to make statements, the more extreme the better, providing they strike fire from the opposition and drive the other person to take the opposite extreme position, and then, of course, in the conversation to work around to a common ground. Many of the statements made particularly in the first part of conversations as no doubt in his classes, although I cannot say, are of a very critical nature, of the kind that would sound bad in court or in print.”
“Q. Would you say that he was very outspoken? A. I would, yes.”
In their concurring opinions in the Schneiderman case, supra, Mr. Justice Douglas and Mr. Justice Rutledge eloquently state the matter thus:
Mr. Justice Douglas: “If findings of attachment which underlie certificates may be set aside years later on the evidence, then the citizenship of those whose political faiths become unpopular with the passage of time becomes vulnerable. It is one thing to agree that Congress could take that step if it chose. * * * But where it has not done so in plain words, we should be loath to imply that Congress sanctioned a procedure which in absence of fraud permitted a man’s citizenship to be attacked years after the grant because of his political beliefs, social philosophy, or economic theories.” 320 U.S. at page 165, 63 S. Ct. at page 1355, 87 L.Ed. 1796.
Mr. Justice Rutledge: “If this is the law and the right the naturalized citizen acquires, his admission creates nothing inore than citizenship in attenuated, if not suspended, animation. * * * Until the Government moves to cancel his certificate and he knows the outcome, he cannot know whether he is in or out. And when that is done, nothing forbids repeating the harrowing process again and again. * * *
“No citizen with such a threat hanging over his head could be free. If he belonged to ‘off-color’ organizations or held too radical or, perhaps, too reactionary views, for some segment of the judicial palate, when his admission took place, he could not open his mouth without fear his words would -be held against him. For whatever he might say or whatever any such organization might advocate could be hauled forth at any time to show ‘continuity’ of belief from the day of his admission, or ‘concealment’ at that time. Such a citizen would not be admitted to liberty. His best course would be silence or hypocrisy. This is no citizenship. Nor is it adjudication.” 320 U.S. at page 166, 63 S.Ot. at page 1356, 87 L.Ed. 1796. While Judge Wbodrough in his dissent in the Baumgartner case on appeal, 8 Cir., 138 F.2d 29, declares:
“The gist, as I see it, is that in actions in this form the ‘allegiance’ of the accused is an issue of fact, and that means, as I take it, the federal district judges have power to look into the utterances of foreign-born citizens arguing public questions to decide as ‘facts’ whether they are true believers in Americanism or tainted with heresy in that field. That is to say, that the judges have the same inquisitorial power over the minds of foreign-bora citizens in matters political that the Spanish Inquisition had over the human mind in religion. I deny it.
“It matters not what foreign country may be interested in a public question being debated before our people. Our constitutional- guarantee, maintains inviolate the right of every man to have his say about the public question notwithstanding.” 138 F.2d 36.
Concurrence Opinion
(specially concurring).
I cannot concur in the opinion of the majority; it is too extreme; it goes further than is necessary to dispose of the case. Therefore, I must state my own reasons for concurring in the result.
In granting citizenship to aliens, the sovereign has no divine power to look into the hearts of applicants and say: “One of you will betray me.” Therefore, every certificate of naturalization is issued upon the condition that it may be revoked if fraudulently or illegally obtained. The doctrine of res judicata does not apply to judgments granting naturalization.
It is said that in the United States the right of citizenship is a precious thing, dearer than the right to life itself. As to the patriot, whether native born or naturalized, this may be true; but to the alien, who is not attached to the principles of the Constitution and does not intend to reside permanently in this country, citizenship may be a mere matter of temporary convenience: but generalities aside, let us go immediately to the point in the case. The strongest evidence in the record against appellant tended to prove the following facts:
Appellant had opinions and expressed them freely, even in the class room, a fertile field for propaganda. He often stated to his classes that he was “in favor of Hitler and his actions.” A student in Freshman German under Dr. Meyer testified that the latter defended German aggression in Europe and compared it with what the United States had done in their relations with the Indians. As to Germany’s failure to observe the various treaties, he said that was just a part of the war; that the breaking of treaties was of small consequence.
On September 30, 1940, he voluntarily applied for a passport. On that occasion, he said he could not remain in this country, because he was not in sympathy with the American attitude “toward the German Reich.” He refused to sign the oath of allegiance printed on the passport, and feared he might become a fifth columnist. He said: “While my lips may not be a fifth columnist, I am uncertain about this” (putting his hand upon his heart). He said his friends and colleagues had fallen away from him, and blamed it on them rather than on himself. Many times he spoke of Germany as “my country”, and the United States as “your country.” He said he could never become a real American.
There was also evidence of other circumstances, such as appellant’s association with German agents and propagandists in this country, his trips to Germany in 1936 and 1938, his request for an interview with Hitler and his alleged effort to see Goebbels while there, his conditional desire to win this case and then become an alien enemy anyway, his covert threat against several hundred Americans in German custody if anything happened to him, and his statement that he would remain in this country only so long as it was to his material advantage. These and the other facts above stated, which are mainly relied on to support the findings, occurred after the grant of citizenship to appellant.
Not being within the crucial five-year' period, they have little relevance and are entitled to little weight under the decision in Schneiderman v. United States, decided June 21, 1943.
“Direct Examination.
“Q. Do you recall what, if anything, was said about the various invasions that Germany had made? A. Yes, he justified Germany’s grabs in these various countries in Europe by saying that it was nothing more or less than the United States had done in their relations with the Indians.
“Q. What, if anything, did he say regarding 'the observance of the various treaties? A. He said that was just a
part of the war; that breaking the treaties was of small consequence.
“Cross Examination.
“Q. The statements you have attributed. to Dr. Meyer occurred during the school year 1940-1941, is that correct? A. Yes, sir.
“Q. Were those statements all made in open class? A. Yes.
. “Q. Approximately how many students were there in that class? A. It varied from, around 20 to 30, I guess.”
320 U.S. 118, 63 S.Ct. 1333, 87 L. Ed. 1796. Schneiderman was born in Russia. He was granted citizenship in the United States on June 10, 1927. In December, 1939, the District Court held that his naturalization was illegally procured because, as a member of the Communist Party, he advised, taught, and advocated the overthrow of this Government by force and violence, and, therefore, was not attached to the principles of the Constitution. Its decision, 33 F. Supp. 510, which had been affirmed by the Circuit Court of Appeals, 9 Cir., 119 F.2d 500, was reversed by the Supreme Court. Referring to the five years preceding naturalization, the court said, 320 U.S. at page 147, 63 S.Ct. at page 1347, 87 L.Ed. 1796: “Since the immediate problem is the determination, with certainty of petitioner’s beliefs from 1922 to 1927 events and writings since that time have little relevance, and both parties have attempted to confine themselves within the limits of that critical period.” At pages 151, 152 of 320 U.S., page 1349 of 63 S.Ct., 87 L.Ed. 1796, the court said: “The Government also sets forth excerpts from other documents which are entitled to little weight because they were published after the critical period.”