Before PRETTYMAN, WILBUR K. MILLER, and FAHY, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT.
Petition for Rehearing In Banc Denied Oct. 4, 1955.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FAHY
The District Court, in an action by appellant for a judgment declaring him to be a citizen of the United States, held that he had expatriated himself and was no longer a citizen. He was born in the United States October 6, 1914, and thus became a citizen under our Constitution and laws. Perkins v. Elg, 307 U.S. 325, 328-329, 59 S. Ct. 884, 83 L. Ed. 1320. His parents were nationals of Italy and so he was also a citizen of Italy under the laws of that country. He was taken to Italy by his parents in 1920 when he was six years old. He apparently returned to this country in 1952 or 1953 in the effort to establish his status as a citizen.
The District Court held appellant had expatriated himself by voluntary service in the Italian army, voluntarily taking an oath of allegiance to the King of Italy, and voluntary participation in the Italian political elections of 1946 and 1948.
*fn1. While still a minor he took an oath of allegiance1 to the King of Italy in July, 1935, after entering the Italian army in April of that year. He was discharged the following December. The Secretary of State concedes that one who takes such an oath during minority does not thereby lose his American citizenship. And no law effective in 1935 made service in a foreign army even during majority an expatriating act. The Government's position is that appellant's subsequent army service in 1940-1946, and his voting in post-war political elections, confirmed the 1935 oath with like effect as though taken during majority. The statute does not so provide, and we cannot read this into the law. See Pandolfo v. Acheson, 2 Cir., 202 F.2d 38, 41, and Di Girolamo v. Acheson, D.C.D.C., 101 F.Supp. 380, 382, the latter holding that in the absence of a showing of intent to relinquish American citizenship military service after attaining majority is not to be considered as confirmation of the taking of an oath of allegiance during minority.
*fn2. Appellant re-entered the Italian army September 23, 1940. Though then of age he did not take another oath of allegiance to the King, and army service alone did not become a ground of expatriation until January 13, 1941.2 The question is whether his remaining in the service from January 13, 1941, until June 5, 1946, brought about his expatriation. If entering the service was involuntary his continuing therein ordinarily would seem no less so; but we must examine more fully the circumstances. Appellant testified he entered the army in September, 1940, in response to a general call "that even without personal notice to each individual draftee, everybody was supposed to appear and report for duty." He was a reservist and there is evidence that under the laws of Italy the call obliged him to serve. Army service in Italy under conditions then existing has been held to have been under legal compulsion. See Acheson v. Maenza, 92 U.S.App.D.C. 85, 90-91, 202 F.2d 453, 458-459, and Alata v. Dulles, 95 U.S.App.D.C. 182, 221 F.2d 52, with its reference to Mandoli v. Acheson, 344 U.S. 133, 73 S. Ct. 135, 97 L. Ed. 146. While each case must stand upon its own facts, there are some circumstances more favorable to appellant then were present in Alata's case. Within a few weeks after the Nationality Act of 1940 became effective, appellant, on February 5, 1941, became a prisoner and so remained until March 30, 1946. On April 5, 1946, he was given special leave for 60 days and at its conclusion was discharged June 5, 1946. *fn3 His failure while a prisoner to seek release from the army cannot without more be held to have rendered voluntary his service during that period. When he was given special leave April 5, 1946, there was no longer any practical reason to seek release since he was to be discharged at the end of the leave. Thus it appears that except for the time he was a prisoner and that spent on special leave appellant's period of actual military service after the 1940 Act became effective was only a few weeks in 1941 and a few days in 1946. His failure in these two short intervals to seek release from the army did not cause a loss of citizenship.
The Government, however, points to evidence of personal reasons of appellant for re-entering the army in September, 1940, as indicative of the voluntary character of his service. Thus, in his affidavit given the American Vice Consul at Naples May 19, 1952, he said that before he was recalled on September 23, 1940, he had asked to join because he was unemployed and had no way to support his wife and four children. But the fact is he was recalled under circumstances which placed legal pressure upon him to respond. His motives for desiring to re-enter the army do not alter the compulsive nature of the call.
We conclude that his service involuntarily begun did not change its character by his failure to prove affirmative efforts to obtain release during (a) the few weeks of active service after the Act became effective and before his capture, and (b) the few days of service four years later before his leave preceding discharge. See Perri v. Dulles, 3 Cir., 206 F.2d 586, 589. *fn4
3. There remains for consideration the effect of appellant's voting.Section 401(e) of the Nationality Act of 1940, 54 Stat. 1137, 1169, provides for loss of American citizenship by "[voting] in a political election in a foreign state . . .." Part of the evidence on this subject is appellant's affidavit before the American Vice Consul at Naples May 19, 1952, in which he says he voted in 1948 "because of all the electoral propaganda and what they were saying around", that he did not know it would compromise his American citizenship, and he desired to give his contribution against Communism. At the trial he stated that he voted only in 1946 and that the affidavit to the Vice Consul giving the time of voting as 1948, as well as 1946, is a mistake. Furthermore, the statements in the affidavit must be considered with his testimony at the trial that he voted because if he did not do so he would lose his civil rights, his "certificate of good behavior would have been disqualified and I do not find any more job", that his relatives and immediate family would have been deprived of their ration card, that the Parish priest urged him to vote, and that the law forced him to do so. When asked why he did not tell the Vice Consul that he was compelled to vote he replied that the Consul knew it was an obligation to vote in Italy. He added that he had gone alone to the Consul's office without a lawyer and the statement he signed was not re-read to him. *fn5
His testimony is buttressed partially by a lawyer who had been admitted to the bar in Italy and who testified that Italian law required appellant as an Italian citizen to vote as a matter of duty, and that when appellant entered military service all citizens whether born in the Kingdom or abroad were compelled to serve in the Italian army unless they could prove they had already served in the armed forces of the country of their birth. Another witness testified that during the war if one refused to be drafted he would be arrested, and if one did not vote in the national election of 1946 he would be punished with sanctions such as a fine and loss of his food ration cards.
We note at this point that the May, 1952, affidavit before the Vice Consul is not the handiwork of appellant, who testified at the trial through an interpreter, but appears to have been composed by the Consular official on the basis of appellant's answers to various questions. Its composition indicates that the questions were not designed to elicit an exposition of the situation which confronted appellant regarding either his military service or voting. And except as the affidavit does so, the Government made no attempt to rebut appellant's testimony as to the pressures upon him. *fn6
We conclude that appellant's military service after January 13, 1941, and his voting, should not be held to have brought about the loss of his American citizenship. As ...