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United States v. Schlotfeldt

June 30, 1943


Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Phillip L. Sullivan, Judge.

Author: Sparks

Before SPARKS and KERNER, Circuit Judges, and LINDLEY, District Judge.

SPARKS, Circuit Judge.

The first appeal here considered, No. 8221, is from a decree entered September 22, 1942, revoking appellant's citizenship, and an order, entered December 29, 1942, denying his motion to vacate that decree for asserted lack of jurisdiction on the part of the court to enter it. The order of December 29 also denied appellant's motions for the appointment of a guardian ad litem to protect the alleged interests of his three year old son whose derivative citizenship fell with that of his father; the issuance of subpoenae duces tecum directed to the heads of the State Department, Selective Service System of Tulsa, Oklahoma, and the Federal Bureau of Investigation; and leave to file an amended motion to vacate the decree. Appellant also asserts error in the action of the District Court in denying these motions.

The first issue raised by this appeal relates to the jurisdiction of the court to enter the decree, the objection being made that appellant was not a resident of the district in which the suit was brought. As proof of his non-residence, he relies upon an affidavit filed by the Government, sworn to July 30, 1942, showing that he had registered under the Selective Service Act in Oklahoma, although he was not a member of the armed forces. The record shows that service was had by publication beginning May 28, 1942. On July 28, an attorney filed his appearance for appellant; on July 31, substitution of attorneys was permitted, and on that day, the substituted attorney obtained leave to file answer to appellee's motion for judgment by default within ten days. Thereafter, on August 10, 1942, appellant filed answer containing the following, inter alia: "And he admits that his residence is now at Chicago, Illinois, within the Northern District of Illinois and within the jurisdiction of this court." Thereafter trial was had, with no question ever raised as to appellant's residence.

The case upon which appellant relies to support his contention of no jurisdiction, United States v. Sotis, 7 Cir., 131 F.2d 783, presnted an entirely different issue. There a former citizen whose citizenship had been revoked by default decree, service having been had by publication, came in three years later, but within one month after he obtained knowledge of the default decree, with a motion to vacate it. Because the purported service by publication did not strictly follow the statutory requirements, this court held that the court did not acquire jurisdiction there by, hence its decree was invalid and subject to being vacated, irrespective of lapse of time after its entry. It is obvious that this case presents no authority for appellant here. Instead of objecting to the jurisdiction, he voluntarily submitted to it. His active participation in the trial without objection thereafter renders any possible irregularities respecting service of process or venue merely an academic question. A personal privilege respecting venue may be asserted or waived at the election of the defendant. Neirbo Co. v. Bethlehem Corp., 308 U.S. 165, 60 S. Ct. 153, 84 L. Ed. 167, 128 A.L.R. 1437; Freeman v. Bee Co., 63 S. Ct. 1146, 87 L. Ed. - , decided by the Supreme Court, June 1, 1943. Certainly appellant waived such privilege. Hence there is no question as to the jurisdiction of the District Court to hear the cause.

Appellee urges that the appeal is improperly before us in view of the fact that notice of it was filed on December 28, from a decree entered September 22. The court permitted the filing of a motion to vacate the decree on December 19, ordered the Government to answer, and set the matter for hearing. Where such motion to vacate is permitted to be filed and taken under consideration prior to the expiration of the period allowed for taking an appeal, we are of the opinion that it suspends such period, and that notice of appeal duly filed after disposition of the motion is filed in time. Cf. Zimmern v. United States, 298 U.S. 167, 56 S. Ct. 706, 80 L. Ed. 1118; Wayne Gas Co. v. Owens-Illinois Glass Co., 300 U.S. 131, 57 S.Ct 382, 81 L. Ed. 557. We think the Federal Rules of Civil Procedure, Nos. 6, 59 and 60, 28 U.S,C.A. following section 723c do not require a contrary ruling

The bill to revoke appellant's citizenship, btought under section 15 of the Act of June 29, 1906, 8 U.S.C.A. ยง 405, alleged that it was illegally obtained by fraudulent renunciation of allegiance to the German Reich of which he had theretofore been a subject, and false representations of attachment to the principles of the Constitution of the United States. The court found the charges sustained by the evidence and accordingly cancelled the certificate of citizenship. Appellant contends that the evidence failed to sustain the charge of perjury and fraud.

The certificate of naturalization in question was issued on October 2, 1929, on a petition showing the applicant's arrival in the United States, January 11, 1924, and declaration of his intention to become a citizen, January 25, 1924.

Appellant was a native of Germany who had served in the German Army in 1915. He was a graduate of a German Polytechnical school, holding a degree as an electrical engineer. After he came to this country he obtained work in his field, being employed at Northwestern University as an instrument maker in the Department of Physics from 1926 to 1935. In 1936 he was employed as European agent for an American company making electronic and mechanical devices. Thereafter he made various trips to Europe, and in 1938 he started a business in Switzerland. In 1941, he returned to this country, intending to remain only a short time, and travelling on a roundtrip ticket. However, at this time, appellant was unable to obtain a passport so had to remain in the United States. He was out of this country the greater part of the four years from 1937 to 1941.

In support of its charge of perjury in appellant's declaration of attachment to the principles of the Constitution of the United States and renunciation of allegiance to the German Reich, the Government introduced the evidence of a number of friends, neighbors and fellow employees as to his conduct and statement made by him in later years. The testimony of these witnesses proves quite conclusively that in these later years at least, he was not attached to the Government of the United States, and the principles of its Constitution. Many testified that he had told them that he regretted having become an American citizen. He repeatedly asserted the superiority of the German system, political, industrial, social, and educational, making invidious comparisons in those respects with the American system. In 1938 and 1939 he was often heard to make derogatory statements as to this country and its form of government, asserting the need of the German form of government and that the German people should and would rule the world. His anti-Semitic bias was frflected in his conversations with several of the witnesses. As early as 1933 or 1934 he and his wife had taught their small daughter, American born, to give the Nazi salute, "Heil Hitler."

This type of conduct and expression indicates a degree of admiration for and devotion to the German form of Government utterly incompatible with the undivided loyalty and allegiance required of American citizens. Certainly his allegiance to our Government and the principles of its Constitution can not have been very deep or sincere if it could so easily be supplanted within a few years by an ideology which is the complete antithesis of everything for which our Constitution stands. That the conduct and expression evidencing such ideology occurred years after the issuance of the certificate of naturalization to appellant is no bar to the cancellation of that certificate. The oath of allegiance and the renunciation of former allegiance must be made without mental reservation. If it appear subsequently that the maker fails in allegiance, fidelity or faith, it may be fairly presumed that he did not absolutely and entirely renounce his former allegiance, and this presumption is all the stronger when the period which has elapsed since the oath is longer. United States v. kuhn, D.C., 49 F.Supp. 407. It is well settled that intent at the time of naturalization may be shown by subsequent acts and declarations.*fn1 As the Court of Appeals for the Ninth Circuit said in Schurmann v. United States, 264 F. 917, 918 18 A.L.R. 1182, determining that the District Court was justified in holding that a naturalized citizen who by reason of his attitude and declarations and expressions in 1916 and 1917, before and after the United States was at war with Germany, swore falsely in 1904 when he declared that he absolutely and entirely renounced all allegiance to the German government,

" * * Under the circumstances of the case, the only way of arriving at what the fidelity and allegiance of Schurmann were in December, 1904, is by trying out his attitude of mind and heart in the later years of 1916 and 1917, when, under then existing conditions men were specially aroused to give utterance to their real sentiments and to avow loyalty to one or another of the belligerent nations. Prior to 1916 his life seems to have been without special event indicative of patriotic feeling. But it was in the crucial times of 1917 that the respondent failed in the fundamental obligation to his oath of true faith and allegiance in 1904. * * (After war was declared he stated) 'And this is the crisis where every German, * * * it is up to him to defend the fatherland.'

"One who spoke in that way, and whose frequent expressions were so plainly against the United States and in favor of Germany, must have taken the oath of full faith and allegiance with a reserved determination, to be kept down, but nurtured, until a momentous time might come. In years, however, the time did come, and the criterion of original fraud must be the later ...

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