The Kawakita treason case

96 F. Supp. 824, 1950 U.S. Dist. Decision

UNITED STATES
vs.
TOMOYA KAWAKITA

[ Version 1 ]

No. 19665

United States District Court Southern District Of California, Central Division

November 1, 1950

COUNSEL: James M. Carter, Cameron L. Lillie, Los Angeles, Cal., for plaintiff. Morris Lavine, Los Angeles, Cal., for defendant.

AUTHOR: MATHES [*825]

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 Overt act (m) was withdrawn upon the Government's motion at the close of the case in chief; overt act (n) was ordered withdrawn from consideration by the jury upon defendant's motion for acquittal pursuant to Rule 29(a) Fed.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 19(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:

[*826] "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 accordance 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.

"Under our law an American citizen cannot owe 'permanent allegiance' to more than one country at a 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; [*827] "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, (1946) 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 Sec. 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.

The instructions1 on this phase of the case were as follows:

"In 1940 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

"'(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

[*828] "';(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 Sec. 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 Sec. 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 Sec. 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, Sec. 408 means that the acts specified from time to time in Sec. 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 Sec. 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 Sec. 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."

[*829] If the plain meaning of the language of Sec. 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 Sec. 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 of 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 23, 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, [*830] 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.

"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.

"A form of special verdict has been prepared for each of the thirteen alleged overt acts submitted to you.2

"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 over 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 your, 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 [*831] 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.

"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 questions 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.3 , 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.

[*832] On Friday, August 27th, the jury resumed deliberations at 9:30 A.M., were taken to lunch at 12:30 P.M., returned at 2:15 P.M., were taken to dinner at 6:15 P.M. and thence to their hotel for the night. Deliberations on Friday thus consumed 7 hours.

On Saturday, August 28th the jury returned to the jury room at 9:30 A.M., were taken to lunch at 12:30 P.M., returned at 1:30 P.M. and at approximately 3 P.M. the foreman, a lawyer, sent by the bailiff a note reading: "The jury is unable to arrive at a verdict. A majority of the jury feel there is no probability of doing so."

Pursuant to stipulation of the parties the bailiff was instructed to advise the jury that the court desired them to deliberate further; and within a few minutes the jury sent a further note requesting to be relieved from further deliberations until Monday morning.4

By stipulation of the parties the jury were relieved from further deliberations until 9:30 on Monday morning, and were taken to their hotel at 4:08 P.M. on Saturday afternoon.

Before excusing the jury on Saturday, the court informed them "that the court's orders are that you be taken to luncheon or dinner or breakfast whenever you are ready, and that you be taken to the hotel to retire whenever you are ready." The jury's labors on Saturday consumed 5 hours and 38 minutes.

The jury rested from their deliberations throughout Sunday, August 29th. On Monday morning, August 30th, they returned to the jury room at 9:30, and the foreman sent the following communication to the court:

"The Foreman, personally, respectfully requests permission to approach the bench, or other similar action, for the reason of securing aid and advice of the Court, on a matter of procedure, concerning the proper deliberating of this jury. This matter is, in my belief serious and I am supported in that belief by other members of the jury. The Court's consideration of this request will be appreciated, and of help.

"(Signed) Wm. W. Andrews, Foreman."

The jury were then brought into open court where colloquy5 between court and foreman and juror Mrs. Ziegler disclosed that personal or personality differences were hampering the deliberations. At length Mrs. Ziegler inquired: "Would it be out of form to have a new foreman?" To which the court replied: "You are entitled to elect your own foreman at any time."

The court then gave the jury certain supplemental instructions based upon those given by Judge Hoar in the Court of Common Pleas and approved by the Supreme Judicial Court of Massachusetts in Commonwealth v. Tuey, 1851, 8 Cush. 1, 62 Mass. 1, later modified by Circuit Judge Sanborn in United States v. Allis, C.C.E.D. Kan. 1893, 73 F. 165, 182-183, affirmed 1894, 155 U.S. 117, 123, 15 S. Ct. 36, 39 L. Ed. 91, and later approved in Allen v. United States, 1896, 164 U.S. 492, 501-502, 17 S. Ct. 154, 41 L. Ed. 528.6

Following these proceedings on Monday morning, the jury retired to deliberate further, were taken to lunch at 12:05 P.M., returned at 1:30 P.M., were taken to dinner at 6 P.M. and thence to their hotel for the night. Their labors on Monday thus consumed 7 hours and 5 minutes.

On Tuesday morning, August 31st, the jury returned to the jury room at 9:20, and shortly after eleven sent the following communication:

"Your Honor: The Jury respectfully requests the Court's clarification of all the instructions."

"Respectfully submitted, Elsie B. Nickel."

The jury were then returned into court for further instructions "on the special verdicts, and * * * the words 'betray' and 'felonious' * * *."7 Although the jury made no statement on the subject, it [*833] was plain from the fact that Mrs. Nickel was then acting as foreman that Mrs. Ziegler's fellow jurors had granted her wish -- Mr. Andrews was no longer foreman.

After receiving further instructions on Tuesday morning, the jury of nine women and three men resumed deliberations with their new foreman, and were not heard from again until Thursday afternoon, when they returned their verdict.

On Tuesday the jury were taken to lunch at 12:05 P.M., returned at 1:25 P.M., were taken to dinner at 5:40 P.M. and thence to their hotel for the night. Their labors on Tuesday thus consumed 7 hours. On Wednesday, September 1st, the jury deliberated from 9:25 to 11:50 A.M., and from 1:20 to 5 P.M. -- a total of 6 hours and 5 minutes; and on Thursday, September 2nd, from 9:20 A.M. to 12:05 P.M., and from 1:45 until 3:47 P.M. -- a total of 4 hours and 47 minutes, -- when the verdict was returned.

In the aggregate the labors of the jury consumed 48 hours and 25 minutes. The taking of testimony had extended over a period of two months. Some 60 witnesses had testified in person and by deposition, thus compiling some 5000 pages of transcript. Literally dozens of exhibits were received in evidence. The arguments of counsel consumed most of four days. There were submitted for consideration by the jury thirteen separate overt acts of alleged treason. And the jury were requested to answer 104 special interrogatories in reaching their verdict. See: Cramer v. United States, 1945, 325 U.S. 1, 36, note 45, 65 S. Ct. 918, 89 L. Ed. 1441.

No one can question either the magnitude or the gravity of the jury's task. To be sure, their labors extended over a period of nine days. But one of those days was a day of complete rest, and on no day except the first were deliberations carried on after dinner.

In United States v. Haupt, 7 Cir., 1945, 152 F.2d 771, 779, affirmed, 1947, 330 U.S. 631, 643, 67 S. Ct. 874, 91 L. Ed. 1145, the verdict withstood attack even though "the jury deliberated 28 hours without sleep." The jury in the case at bar never deliberated more than 7 hours and 5 minutes at any time without an intervening full night of rest.

In all the circumstances the duration of the jury's deliberations at bar was entirely reasonable. See Hyde v. United States, 1912, 225 U.S. 347, 383, 32 S. Ct. 793, 56 L. Ed. 1114; United States v. Sorcey, 7 Cir., 1945, 151 F.2d 899, 902 certiorari denied, 1946, 327 U.S. 794, 66 S. Ct. 821, 90 L. Ed. 1021; United States v. Olweiss, 2 Cir., 1943, 138 F.2d 798, 801, certiorari denied, 1944, 321 U.S. 744, 64 S. Ct. 483, 88 L. Ed. 1047; United States v. Novick, 2 Cir., 1941, 124 F.2d 107, 110, certiorari denied, 315 U.S. 813, 62 S. Ct. 795, 86 L. Ed. 1212, rehearing denied, 1942, 315 U.S. 830, 62 S. Ct. 913, 86 L. Ed. 1224; United States v. Rosso, 2 Cir., 1932, 58 F.2d 197; Bernal v. United States, 5 Cir., 1917, 241 F. 339, certiorari denied, 1918, 245 U.S. 672, 38 S. Ct. 192, 62 L. Ed. 540.

On Monday, August 30th, at the time the jury were given the supplemental instructions now complained of, they were admonished:

"When a situation like this is reached, the court tries to be of assistance to the jury. Frequently the position is made -- and in many instances, perhaps, properly so -- that the court is attempting to coerce the jury or to force the jury to arrive at a verdict.

"A verdict is desirable, but it is only desirable if it is a true verdict. It is only a true verdict if it represents the individual judgment, the honest individual judgment of each juror.

"It is unnecessary for me to say again that the court does not wish any juror to surrender his or her conscientious convictions. As I stated at the time the case was submitted to you, do not surrender your honest convictions as to the weight or effect of evidence solely because of the opinion of other jurors, or for the mere purpose or arriving at a verdict.

"Let me repeat again so that you will not feel that any remarks I have made are intended to put any coercion or pressure upon you: No juror is expected to yield a conscientious [*834] conviction he or she may have as to the credibility of any witness or as to the weight or effect of any evidence, but, as I have previously said, it is your duty, members of the jury, to agree, unless after a full and impartial consideration of all the evidence with your fellow jurors, to agree would do violence to your individual judgment and conscience.

"There has been some suggestion here -- there was Friday -- that some of you were very tired. Perhaps I should have suggested to you at the outset that you may be as leisurely in your deliberations as the occasion and circumstances may require. Sometimes jurors may fail to agree because they hurry too much to try to agree. Sometimes people do that.

"I do not speak in any critical vein. We are dealing with an attempt to get 12 human beings to arrive at a common conclusion as to the truth.

"You will remember at all times if any doubt remains in your mind, any reasonable doubt as to the guilt, the defendant is entitled to your verdict of acquittal.

"The bailiffs have been instructed to take you to your meals whenever you wish to go, to take you to your hotel whenever you wish to go. You are to take all the time you may feel necessary for your deliberations.

"You may now retire and continue your deliberations as your good and conscientious judgment as reasonable men and women may determine.

"It has been a long trial, as I say, and I know you are tired and you would like to be done with it. But in all the circumstances which have been mentioned here, I would ask you to deliberate further, to try further to see if you can't come to a unanimous agreement. If you can't answer all the questions, answer as many as you can. And remember, again, that no juror is expected to surrender his honest convictions if, after full deliberation and attention to the views of his or her fellow jurors, he or she remains convinced of the correctness of his or her stand on any matter involved."

When on Tuesday, August 31st, the jury returned with a new foreman and sought clarification of certain instructions, the court again admonished: "And you are the sole judges of the manner in which you shall proceed, and you are the sole judges, of course, of the weight and effect of all the evidence and the credibility of all the witnesses; and you are entitled to and should disregard all comments of the court which are at variance with your own conscientious judgment in the matter."

As the Supreme Court said in Hyde v. United States, supra, 225 U.S. at page 808: "It is hard to believe that with that admonition yet in their ears they bartered their convictions* * were coerced by a threat of confinement to * * * convict those who they were convinced were innocent."

The very suggestion that twelve men and women would unanimously agree to convict a defendant of treason -- a capital offense and the most heinous of crimes -- merely because a trial judge kept them deliberating when they preferred the comforts of home seems an unwarranted affront to this most distinctively characteristic institution of our Anglo-American legal system.

Here was a jury composed of a Neisi Japanese, a Negro, and one or more men and women of English, Irish, Scotch, German, Scandinavian, Italian descent -- a veritable cross section of America. Here was a jury whose very colloquies with the court demonstrate total freedom from coercion; twelve men and women who knew their duties and their solemn responsibilities, who were told and appreciated the fact that in this case they served as judges -- "the judges of the facts."

Here was a jury which on Monday, hampered by personal differences, had been unable since the preceding Wednesday to find a unanimous answer to even one of the 104 interrogatories submitted to them, but thereupon selected a new foreman, renewed deliberations and by Thursday afternoon returned their verdict as to 8 overt acts with unanimous answers to 64 of the interrogatories.

[*835] It is doubtful whether the best trained and most experienced of psychologists could ever determine with any degree of certainty whether, and if so to what extent, a jury might have been coerced. But the sense and the decencies common to mankind suggest that, in a capital case at least, it might be possible to coerce a jury to acquit, but never to convict.

If the verdict here were coerced as the defendant contends, then it must be said that the jury convicted the defendant in order to be excused to go home. That thought suggests inquiry why, if led to convict the defendant only because they were in a hurry to go home, did the jury not bring in a verdict on only one overt act, as they were told they might do. It seems unlikely that, in their assumed haste, the jury would choose to answer 64 interrogatories after they had been instructed that answers to only 8 would suffice for a conviction.

Moreover the special verdicts themselves serve to rebut any reasonable doubt that the jury's findings were freely and fairly arrived at. The defendant was found guilty of overt acts (a), (b), (c) and (d). The jury were unable to agree as to overt acts (e) and (f). The defendant was found guilty of overt act (g). The jury were unable to agree as to overt act (h). The defendant was found guilty of overt acts (i), (j) and (k); and the jury were unable to agree as to overt acts (l) and (o).

Far from indicating coercion, it is my opinion that the time element involved, the daily hours of deliberation, the change of foreman on Monday, the absence of any hint or intimation on the part of any member of the jury that there existed the slightest desire to be discharged at any time from Monday until the jury returned into court with their verdict on Thursday afternoon, -- all indicate that the jurors were taking their time as they should, and as the court had instructed them they might do. Furthermore, the factors just mentioned, and others above discussed, point to a calm, deliberate and conscientious consideration of the evidence with respect to each of the 13 overt acts charged, and a unanimous verdict voicing the considered opinion of each juror as to 8 of the overt acts, without surrender of the conscientious convictions of any of the jurors.

There has been no verdict in my experience where the actions of the jury more clearly showed both a full consideration of the evidence and a complete understanding of the problems involved. Even the personal friction marking the early part of the jury's deliberations gave emphasis to prior and subsequent indicia that the jury took to heart this instruction given at the outset:

"Early in our national life one of the greatest of our Chief Justices, John Marshall, wrote:

"'As there is no crime which can more excite and agitate the passions of men than treason, no charge demands more from the tribunal before which it is made, a deliberate and temperate inquiry. Whether this inquiry be directed to the fact or to the law, none can be more solemn, none more important to the citizens or to the government; none can more affect the safety of both.' Ex parte Bollman, 1807, 4 Cranch 75, 8 U.S. 75, 124, 2 L. Ed. 554. "The wise caution of the venerable Chief Justice is as timely today as it was in 1807."

The defendant was lawfully and fairly indicted, tried and convicted. There appears no basis in fact or law to acquit, arrest the judgment, or order another trial.

The presumption of innocence, with which our common-law system of justice clothed the defendant throughout the trial, ceased when the jury returned their unanimous verdict of "Guilty." That verdict being fully supported by the evidence, the law now presumes the facts to be as the jury found them.

Born in America, reared in America, educated in the public schools of America, the defendant, like the classic traitor of all time, "was numbered with us" (Acts 1:17.) He had lived most of his life among us; had been fed by our land; had been nurtured by our institutions; had enjoyed the privileges of American citizenship. Exercising one of the privileges of that citizenship, he went to Japan in 1939 under the protection of an American passport.

After almost two years in Japan, the defendant renewed his American passport and [*863] at that time made solemn oath to support and defend the Constitution of the United States against all enemies foreign and domestic and to bear true faith and allegiance to the same; and further swore that he took this obligation freely, without any mental reservation or purpose of evasion.

Following Pearl Harbor, the defendant was caught in the maelstrom of war between the United States and Japan. His allegiance was claimed by both countries. Because born the son of Japanese nationals, he was a Japanese subject according to the law of Japan. Because born on American soil, he was an American citizen by birth according to our law. But the defendant was not a poor illiterate who knew not what to do. Graduate of an American high school and a Japanese university, he was trained in the language and customs of both countries. The documentary evidence here shows that in 1942 and 1943 at Meiji University, Tokyo, he was graded "good" in "civil law" and "commercial law," and "excellent" in "outline of law," "controlled economy," "military training," and "maneuvers."

It has always been comparatively easy to acquire American citizenship, and easy to acquire American citizenship, and even easier to lose it. The right of expatriation is declared by our law to be "a natural and inherent right of all people". 8 U.S.C.A. 800. The defendant knew these things. He knew it was his unquestioned right to renounce at any time all duty of allegiance to this country. But he also knew that if he cast off his allegiance to the United States, he would at that moment lose all the rights and privileges of an American citizen.

The United States Supreme Court has said "it is safe to assert that nowhere in the world today is the right of citizenship of greater worth to an individual than it is in this country. It would be difficult to exaggerate its value and importance." Schneiderman v. United States, 1943, 320 U.S. 118, 122, 63 S. Ct. 1333, 87 L. Ed. 1796.

Affidavits and other documents submitted by him to the American Consul at Yokohama after the Japanese surrender show that -- far from renouncing American nationality during his sojourn in Japan -- the defendant avoided any act of record which would result in loss of his American citizenship.

In 1940 the defendant registered in Japan as an American citizen under the Japanese Alien Registration Law. But he made no record of his Japanese parentage in the Japanese census register until 1943 -- after he had passed the military age for conscription in Japan. Then he entered gainful private employment with a Japanese mining company at Oeyama. As interpreter for the company he was selling knowledge of the English language which he had gained in the public schools of America. But unlike his fellow American, Fujizawa, the defendant was not content with doing only what his duties as interpreter required of him. Instead, the defendant violated his oath of allegiance to the United States, transferred his loyalty to the enemy, and actively cast his lot with those then engaged in a life and death effort to destroy the country of his birth. The zeal with which the defendant practiced his treachery is witnessed in many ways, but perhaps most eloquently by the nicknames-"efficiency expert" and "empire builder" -- given him by American prisoners of war at Oeyama.

The defendant was not, however, the kind of traitor who gives his all to some real or fancied cause espoused by an enemy. His devotion first and last was to Tomoya Kawakita. He wanted Japan to win the war, hoped and believed she would win, but feared she would not. If Japan won, he planned to return to the United States -- as he boasted to American prisoners of war -- and be a "big shot" because of his knowledge of the language and the people. But in the, to him remote, contingency that Japan might lose, the defendant determined to hold fast to his birthright -- his American citizenship.

Thus his craven mind conceived that throughout the tragedy of the war he could contrive to be on each side in such a manner that neither would be the wiser. Evidently he believed the moral axiom -- old in human experience when Christ preached it -- that "No man can serve two masters * * * ." (Matthew, 6:24; Luke 16:13) -- did not apply to him.

[*837] By his own testimony, from March 1943 on to the end the defendant did everything he could to help Japan win the war. If the aid and comfort resulting from his efforts weighed little in the decision, this is so only because his opportunity was limited, and not because his desire to help the enemy was slight. All traitors are not given the chance to commit treason in a grand manner. Means to commit the classic type of treason -- to betray the United States in a dramatic fashion as did Benedict Arnold -- were not available to the defendant. But his testimony at the trial leaves no doubt that he would willingly have blown up our Pacific fleet and disclosed to Japan the secrets of our atom bomb, if it had only been within his power to do so.

Like Hans Haupt, Haupt v. United States, 1947, 330 U.S. 631, 67 S. Ct. 874, 91 L. Ed. 1145, the defendant gave every aid and comfort to the enemy that he was able to give. And the evidence compels the conclusion that what the defendant was able to do, with his brutal, slave-driving tactics, added many tons of nickel ore to Japan's war effort that never otherwise would have been mined or smelted by American prisoners of war.

Morally treason is a crime of the mind and heart. The traitor's conscience tells him what he is. So it may have been in defiance of a sense of guilt and shame that the defendant asserted his rights as an American citizen soon after the surrender of Japan. Why he wished to return to the country which he hated remains his secret. Whatever the reason, he again swore the American's oath of allegiance, although he admittedly felt none; and procured a passport under the protection of the nation he so recently wished to see prostrate before her enemies. The affidavits he made to procure that American passport show clearly -- both by what was said and by what was unsaid -- that the defendant returned to our shores fully conscious of his guilt.

The motion in arrest of judgment is denied. The motion of the defendant for a judgment of acquittal and the alternative motion for a new trial are also denied.8

1. Jury Instructions

The full text of the instructions to the jury prior to commencement of deliberations follows:

No. 19,665 Criminal

In the District Court of the United States, Southern District of California, Central Division.

UNITED STATES OF AMERICA, Plaintiff, v. TOMOYA KAWAKITA, Defendant.

1 MEMBERS OF THE JURY:

It is now my duty to instruct you as to the law governing this case. It is your duty, as jurors, to follow the law as stated in the instructions of the Court and to apply the law so given to the facts as you find them from the evidence before you.

The jury must accept the instructions of the Court as comprising together a complete and correct statement of the law governing the case. Do not single out one instruction alone as stating the law, but consider the instructions as a whole.

Regardless of any opinion you may have as to what the law ought to be, it would be a violation of your sworn duty to pass a verdict upon any other view of the law than that given in the instructions of the Court.

2 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.

3 You are here for the purpose of trying issues of fact presented by the allegations in the indictment and the denial made by the plea of the accused. You are to perform this duty without bias or prejudice as to either party. The law does not permit jurors to be governed by sympathy, prejudice, or public opinion. The accused and the public expert that you will carefully and dispassionately consider all the evidence, follow the law as stated by the Court, and reach a verdict just to each side, regardless of what the consequences may be.

3-A Early in our national life one of the greatest of our Chief Justices, John Marshall, wrote:

"As there is no crime which can more excite and agitate the passions of men than treason, no charge demands more from the tribunal before which it is made, a deliberate and temperate inquiry. Whether this inquiry [*838] be directed to the fact or to the law, none can be more solemn, none more important to the citizens or to the government; none can more affect the safety of both."

Ex Parte Bollman, 1807, 4 Cranch 75, 8 U.S. 75, 124, 2 L. Ed. 554.

The wise caution of the venerable Chief Justice is as timely today as it was in 1807.

4 An indictment is simply a legal accusation charging a defendant with the commission of a crime. It is not evidence of any kind against the accused, and does not create any presumption or permit any inference of guilt.

5 A defendant is presumed to be innocent of any crime. This presumption of innocence continues throughout the trial, and has the weight and effect of evidence in the defendant's behalf. When you retire to the jury room to deliberate upon a verdict, you must consider the evidence in the light of this presumption.

The presumption of innocence is sufficient to acquit a defendant, unless the presumption is outweighed by evidence satisfying you beyond a reasonable doubt of the defendant's guilt.

6 A reasonable doubt is a fair doubt based upon treason and common sense and arising from the state of the evidence in the case. It is rarely possible to prove anything to an absolute certainty.

6-A A reasonable doubt exists whenever, after full and impartial consideration of all the evidence in the case, the jurors do not feel satisfied to a moral certainty that a defendant is guilty of the charge.

A reasonable doubt may arise not only from the evidence produced, but also from a lack of evidence. The law does not impose upon a defendant the duty of producing any evidence. The burden is upon the prosecution to prove the accused guilty beyond a reasonable doubt of every essential element of the crime charged. A defendant has the right to rely upon a failure of the prosecution to establish such proof. A defendant may also rely upon evidence brought out on cross-examination of witnesses for the prosecution.

In order to establish proof beyond a reasonable doubt, the evidence must be such that you would be willing to act upon it in the most important of your own affairs. You are not to convict a defendant on mere suspicion or conjecture.

The requirement that a defendant's guilt be proved beyond a reasonable doubt is to be considered as included in each instruction given.

7 There are two types of evidence from which a jury may properly find a defendant guilty of an offense. One is direct evidence -- such as the testimony of an eye witness. The other is circumstantial evidence -- the proof of a chain of circumstances pointing to the commission of the offense.

As a general rule, the law makes no distinction between direct and circumstantial evidence, but simply requires that, before convicting a defendant, the jury be satisfied of the defendant's guilt beyond a reasonable doubt from all the evidence in the case.

7-A In order to justify a verdict of guilty based in part upon circumstantial evidence, the facts in the chain of circumstances relied upon must be consistent with the guilt of the accused, and inconsistent with every reasonable supposition of innocence. If the facts and circumstances shown by the evidence are as consistent with innocence as with guilt, the jury should acquit the accused.

7-B Where the crime charged is treason, there is an additional requirement stated in our Constitution that "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." This added burden of proof upon the prosecution in treason cases will be explained in detail later in these instructions.

8 You, as jurors, are the sole judges of the credibility of the witnesses and the weight to which their testimony is entitled. A witness is presumed to speak the truth. However, this presumption may be outweighed by the manner in which the witness testifies, by the character of the testimony given, or by contradictory evidence. You should carefully scrutinize the testimony given, the motive and state of mind of each witness, and all the circumstances under which each witness has testified. Consider each witness's intelligence, demeanor and manner while on the stand, and the relation which he or she may bear to each side of the case. Consider also the manner in which each witness might be affected by the verdict, the extent to which, if at all, he or she is either supported or contradicted by other evidence, and every other matter in evidence that tends to indicate whether the witness is worthy of belief.

If you find that the presumption of truthfulness has been outweighed as to any witness, you will give the testimony of that witness such credibility, if any, as may be dictated by your judgment as reasonable men and women.

If you find that the presumption of truthfulness has been outweighed as to any witness, you will give the testimony of that witness such credibility, if any, as may be dictated by your judgment as reasonable men and women.

9 A witness may be impeached and discredited by contradictory evidence; or by evidence that at other times the witness has made statements which are inconsistent with the witness's present testimony.

If you believe any witness has been impeached, it is your exclusive province to give [*839] the testimony of that witness such credibility, if any, as you may think it deserves.

If a witness is shown knowingly to have testified falsely concerning any material matter, you have a right to distrust such witness's testimony in other particulars; and you may reject all the testimony of that witness or give it such credibility as you may think it deserves.

10 Section 632 of Title 28 of the United States Code (1948 Revised Criminal Code, 18 U.S.C.A. § 3481) provides that "in the trial of all indictments, informations * * * and other proceedings against persons charged with the commission of * * * offenses * * * in the United States courts * * * the person so charged shall, at his own request but not otherwise, be a competent witness. And his failure to make such request shall not create any presumption against him."

That is to say, a defendant is not compelled to take the witness stand and testify, and no presumption of guilt shall be raised and no inference of any kind shall be drawn from the failure of a defendant to testify.

10-A A defendant, however, who wishes to testify, is a competent witness; and the defendant's testimony is to be judged in the same way as that of any other witness.

10-B All testimony as to any statements or admissions alleged to have been made by a defendant outside of court should be considered with caution and weighed with great care.

11 Since the founding of our National Government, Article III, Sec. 3 of the Constitution has provided as follows:

"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."

Likewise, since 1790, Sec. 1 of the Criminal Code has in substance provided that:

"whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason".

11-A The defendant, Tomoya Kawakita, is not charged with levying war against the United States, so it is not necessary to consider here that aspect of the crime of treason.

The alleged treason charged in the indictment is that the defendant adhered to the enemies of the United States, giving them aid and comfort in Japan.

11-B More specifically, the charge set forth in the indictment is that between August 8, 1944 and August 24, 1945, at or near Camp Oeyama on the Island of Honshu in Japan, the defendant, Tomoya Kawakita, while a citizen of the United States and owing allegiance to the United States, did knowingly, intentionally, wilfully, unlawfully, feloniously, traitorously and treasonably adhere to the enemies of the United States, particularly the Government of Japan, with which the United States had been at war since December 8, 1941, giving aid and comfort to Japan in violation of his duty of allegiance to the United States. The indictment then describes the claimed manner and means whereby the defendant is alleged to have manifested his alleged adherence to the enemies of the United States.

In substance it is charged in the indictment that the defendant's claimed adherence to the enemies of the United States is shown by voluntary conduct of the defendant consisting of: (1) the defendant's alleged serving as an interpreter and foreman at a prisoner of war camp at Camp Oeyama and at an open pit ore mine and smelter nearby, and compelling members of the armed forces of the United States, who were then and there prisoners of war of the Japanese Government, to perform labor at the mine and the smelter; and (2) the defendant's alleged directing and assisting the Japanese military forces having charge of the prisoners of war at Camp Oeyama in the imposition of discipline and punishment on the members of the armed forces of the United States; and (3) the defendant's alleged beating, abusing and attempting to destroy the morale and the physical and mental well being of said members of the armed forces of the United States.

It is charged in the indictment that these claimed activities of the defendant just mentioned were intended by him to assist the Japanese military authorities to control and discipline members of the armed forces of the United States who were prisoners of war at Camp Oeyama, and to render them abjectly subservient; and were further intended by the defendant to assist the Japanese Government to utilize members of the armed forces of the United States to produce minerals, metals and products to be used in the manufacture of arms, materials and munitions of war for the Japanese Government.

It is then charged in the indictment that, while so adhering to the enemies of the United States, the defendant committed fifteen specific overt acts of treason at or near Camp Oeyama in Japan; and further that each of the fifteen overt acts alleged were done by the defendant for the purpose and with the intent to adhere to, and give aid and comfort to the enemies of the United States, particularly the Government of Japan; and that each of the fifteen overt acts alleged did give aid and comfort to the enemies of the United States, particularly the Government of Japan.

[*840] As you were advised earlier in the trial, two of the alleged overt acts -- those designated as "M" and "N" -- have been withdrawn, leaving the remaining thirteen to be submitted for your consideration.

11-C As already pointed out, the burden is upon the prosecution to prove the accused guilty beyond a reasonable doubt of every essential element of the crime charged; and where the crime charged is treason, the Constitution imposes an added burden of proof upon the prosecution, which I shall explain to you shortly.

The essential elements of the offense charged in the indictment are found in the following allegations:

First: That the defendant, Tomoya Kawakita, at all times during the period specified in the indictment, namely, August 8, 1944, up to and including August 24, 1945, was an American citizen owing allegiance to the United States;

Second: That while an American Citizen owing allegiance to the United States, the defendant did "adhere to the enemies of the United States and more particularly * * * the Government of Japan, with which the United States at all times since December 8, 1941, and during the time set forth in this indictment, has been at war * * *", with the intent to betray the United States;

Third: That while so adhering to the enemies of the United States, the defendant committed one ore more or all of the overt acts alleged in the indictment and remaining to be submitted for your consideration;

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, willfully, 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 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.

11-D It may be helpful if you consider separately, in the order stated, the evidence as to each of the eight essential elements of the charge against the defendant as set forth in the indictment.

As you will recall, the first essential element is embodied in the allegation:

That the defendant, Tomoya Kawakita, at all times during the period specified in the indictment, namely August 8, 1944 up to and including 24, 1945, was an American citizen owing allegiance to the United States.

The Fourteenth Amendment to the Constitution of the United States provides that: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

Thus American citizenship may be acquired in only two ways: by birth and by naturalization. All persons born in the United States are American citizens. Any others who acquire American citizenship must do so by means of naturalization proceedings. The acquiring of American citizenship through naturalization proceedings is not involved in this case.

11-E 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 who owes allegiance to such state or nation in return for protection received from such state or nation.

11-E(1) 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 a Japanese national upon birth, according to Japanese law, because of his Japanese parentage.

[*841] 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.

11-E(2) Questions as to whether or not a person is an American citizen and his or her duty of allegiance as such are determined in accordance 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.

11-F 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 national 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 county 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.

11-F(1) 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.

11-F(2) 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.

11-G 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, either upon his own application or through the naturalization of a parent having legal custody of such person: Provided, however, That nationality shall not be lost as the result of the naturalization of a parent unless and until the child shall have attained the age of twenty-three years without acquiring permanent residence in the United States: Provided further, That a person who has acquired foreign nationality through the naturalization of his parent or parents, and who at the same time a citizen of the United States, shall, if abroad and he has not heretofore expatriated himself as an American citizen by his own voluntary act, be permitted within two years from the effective date of his Act to return to the United States and take up permanent residence therein, and it shall be thereafter deemed that he has elected to be an American citizen. Failure on the part of such person to so return and take up permanent residence in the United States during such period shall be deemed to be a determination on the part of such person to discontinue his status as an American citizen, and such person shall be forever estopped by such failure from thereafter claiming such American citizenship; 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 [*842] he is convicted thereof by a 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 court of competent jurisdiction; or

"(i) making in the United States a formal 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 Sec. 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 Sec. 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.

11-G(1) Section 403 of the Nationality Act of 1940 (8 U.S.C.A. § 803), in effect since January 13, 1941, provides that:

"(a) Except as provided in subsections (g) and (h) of section 401, no national can expatriate himself, or be expatriated, under * * * section (Sec. 401) while within the United States or any of its outlying possessions, but expatriation shall result from the performance within the United States or any of its outlying possessions of any of the acts or the fulfillment of any of the conditions specified in * * * section (Sec. 401) if and when the national thereafter takes up a residence abroad.

"(b) No national under eighteen years of age can expatriate himself under the subsections (b) to (g), inclusive, of section 401."

When subsection (i) of Sec. 401 added on July 1, 1944, Sec. 403 was amended to include subsection (i) along with subsections (g) and (h) as exceptions to the rule stated in Sec. 403.

11-G(2) 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 Sec. 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, Sec. 408 means that the acts specified from time to time in Sec. 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.

11-H At all times therefore since the effective dates of the various provisions of Sec. 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 Sec. 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.

11-I At all times since January 13, 1940, Sec. 402 of the Nationality Act of 1940 (8 U.S.C.A. § 802) has provided that:

"A national of the United States who was born in the United States * * * shall be presumed to have expatriated himself under subsection (c) or (d) of section 401, when he shall remain for six months or longer within any foreign state of which he or either of his parents shall have been a national according to the laws of such foreign state * * * and such presumption shall exist until overcome whether or not the individual has returned to the United States. Such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, or to an immigration officer of the United States, under such rules and regulations as the Department of State and the Department of Justice jointly prescribe. * * *"

[*843] In other words, when a born citizen of the United States remains for six months or longer in the foreign country of which either he or his parents shall have been a national according to the laws of such foreign country, such American-born citizen shall be presumed to have expatriated himself by entering or serving in the armed forces of such foreign country, if he has or thereby acquires the nationality of such foreign country, as provided in subsection (c) of Sec. 401; or by accepting or performing the duties of some office, post, or employment under the government of such foreign country or a political subdivision thereof, for which only nationals of such foreign country are eligible, as provided in subsection (d) of Sec. 401; and such presumption of expatriation shall exist until overcome or outweighed by evidence to the contrary, whether or not the individual has returned to the United States.

Even though you find that evidence was presented to an American consular officer in 1946 which satisfied him sufficiently to overcome the presumption of expatriation provided in Sec. 402 of the Nationality Act of 1940 which I have just ready, such evidence and such finding of the consular officer are not binding on you.

It is the duty of the jury, as triers of the facts in this case, to determine from all the evidence presented upon the trial whether or not this presumption of expatriation has been overcome or outweighed.

11-J If you find this presumption that the defendant expatriated himself -- renounced or abandoned or otherwise lost his American citizenship -- during his stay in Japan has not been overcome or outweighed by evidence, if any, of what the defendant said and did while in Japan and upon his return to the United States, and the other evidence in the case, you must acquit the defendant.

On the other hand, if you find from the evidence beyond a reasonable doubt that this presumption of Sec. 402 of the Nationality Act 1940, which I have just read to you, has been overcome or outweighed by the other evidence in the case, you should then determine from August 8, 1944 until August 24, 1945, the defendant voluntarily did any other act or acts specified in Sec. 401 of the Nationality Act of 1940 (8 U.S.C.A. § 801), thereby renouncing or abandoning the status of American nationality and with it allegiance to the United States.

11-K Section 217a of Title 22 of the United States Code Annotated provides in part that:

"The validity of a passport or passport vise shall be limited to a period of two years: Provided, That a passport may be renewed under regulations prescribed by the Secretary of State for a period, not to exceed two years, upon payment of a fee of $ 5 for such renewal, but the final date of expiration shall not be more than four years from the original date of issue * * *."

11-L If you find from the evidence that the defendant voluntarily renounced or abandoned or otherwise lost his American citizenship or nationality prior to or during the period specified in the indictment, commencing August 8, 1944 and ending August 24, 1945, you must acquit the defendant, because the overt acts charged in the indictment, even if committed by him, could not constitute the crime of treason against the United States since his duty of allegiance ceased with termination of his American citizenship.

On the other hand, if you should find from the evidence beyond a reasonable doubt that during the period specified in the indictment the defendant was an American citizen, you must also find that he then owed the United States the same duty of allegiance as any other citizen.

As stated before, the defendant was at liberty during his stay in Japan to renounce or abandon his American citizenship and with it all duty of allegiance to the United States. But unless and until he did so, the defendant owed allegiance under our law to his native country, the United States.

So if you should find from the evidence beyond a reasonable doubt that during the period specified in the indictment the defendant remained an American citizen owing allegiance to the United States, it would be your duty then to consider the second essential element of the charge as set forth in the indictment.

11-M The second essential element of the charge is the allegation:

That while an American citizen owing allegiance to the United States, the defendant did "adhere to the enemies of the United States and more particularly * * * the Government of Japan, with which the United States at all times since December 8, 1941, and during the times set forth in this indictment, has been at war * * *", with the intent to betray the United States.

On the breaking out of war between the United States and Japan on December 7, 1941, the Government of Japan and all its subjects, citizens, departments, bureaus, agencies and agents became enemies of the United States; and all continued to be enemies at all times during the period specified in the indictment, namely between August 8, 1944 to and including August 24, 1945, because during this period the United States was at war with Japan.

The charge of adherence to an enemy is old in the law of treason. The expression is found in the ancient Treason Act of England from the year 1351. The expression "adhere to an enemy" means to break allegiance to one's own country by casting one's lot with the enemy -- [*844] to be disloyal in mind and heart to the cause of the country to which a person owes allegiance -- to betray one's country by siding with her enemies.

Since adherence may consist in nothing more than a state of mind, evidence as to acts or happenings or events not charged in the indictment, which has been received for the sole and limited purpose of aiding the jury to determine the defendant's state of mind or intent during the period specified in the indictment, may be considered along with all other evidence in the case in determining whether or not the defendant did "adhere to the enemies of the United States and more particularly * * * the Government of Japan," as charged in the indictment.

If you find that during the period August 8, 1944 until August 24, 1945, the defendant did owe allegiance to this country, but did not adhere to the enemies of the United States, the crime of treason was not committed and you must acquit the defendant.

On the other hand, if you should find from the evidence beyond a reasonable doubt that, while owing allegiance to the United States, the defendant did adhere to the enemies of the United States, particularly the Government of Japan, it would be your duty then to consider the third essential element of the charge.

11-N The third essential element of the charge in the indictment is the allegation:

That while so adhering to the enemies of the United States, the defendant committed one or more or all of the overt acts alleged in the indictment and remaining to be submitted for your consideration.

Adherence to the enemy may consist in nothing more than a disloyal state of mind or heart -- an intent to betray one's country. But adherence to the enemy in thought, in intellectual or emotional sympathy, without more, does not constitute the crime of treason.

Before the crime of treason is committed, treasonable acts must follow and unite with treasonable thoughts. The crime is not complete unless one or more acts -- overt acts -- of treason be committed.

An overt act is an act that is open to view -- an act that may be seen or observed by others than the person acting; an act which actually gives aid and comfort to the enemy.

As you will recall, Article III, Sec. 3 of the Constitution, which I have read to you, provides that "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." There is no confession in open Court." There is no confession in open court involved here. So with respect to each of the overt acts charged in the indictment and remaining to be submitted for your consideration, the burden is upon the prosecution to produce at least two witnesses to the whole of the same overt act.

This requirement is an additional safeguard to those accused of the crime of treason. This is the added burden of proof which the Constitution imposes upon the prosecution in treason cases.

The two witnesses required for each overt act must be witnesses whose testimony gives direct evidence of the act. Direct evidence gives an eye-witness account -- direct proof -- of a fact, as distinguished from circumstantial evidence, which seeks to establish a fact by inference drawn from proof of other facts. Thus persons testifying to admissions, if any, claimed to have been made out of court, and other persons not giving eye-witness testimony as to one or more of the overt acts alleged in the indictment, may not be counted as "witnesses" in determining whether the constitutional requirement of testimony of two witnesses to the same overt act has been met.

Neither out-of-court admissions of the defendant, if any, nor the persons who may have testified to any admission of the defendant, may be counted as "witnesses" within the meaning of the constitutional requirement; and neither such admissions, if any, nor the persons testifying thereto, may be considered as either a total or partial substitute for or satisfaction of the constitutional requirement of "the testimony of two witnesses to the same overt act."

While two or more witnesses must testify to the same overt act, it is not required of course that their testimony be identical. Nor is it required that each witness testify to the whole of the act, since different witnesses may testify to different parts of the act. What is required is that, in order to establish an overt act of treason, the minimum proof necessary is that direct evidence of the overt act be given through the testimony of at least two witnesses, and that the jury be convinced beyond a reasonable doubt of the truth of such testimony.

Direct evidence of any overt act charged in this case would necessarily consist of the testimony of eye-witnesses who saw and heard the act done -- saw the movement and heard the sound, if any, comprising the act. So the constitutional requirement is met only when, after considering the testimony given by all witnesses who testified as to an alleged over act, the jury finds that the whole of such overt act -- each movement and sound, if any, comprising the alleged act -- is established as charged in the indictment by the testimony of at least two witnesses.

In order to convict the defendant of the crime of treason, it is not necessary that the prosecution prove every overt act alleged. But it is essential that at least one of the overt acts charged in the indictment and remaining to be submitted for your consideration be proved by the direct testimony of at least two witnesses.

In order to convict the defendant of the crime of treason, it is not necessary that the prosecution prove every overt act alleged. But it is essential that at least one of the overt acts charged in the indictment and remaining to be submitted for your consideration be proved by the direct testimony of at least two witnesses, and be so proved in its entirety as alleged in the indictment.

[*845] If you find that the prosecution has failed to prove beyond a reasonable doubt the commission by the defendant of at least one of the overt acts in its entirety as charged in the indictment by "the testimony of two witnesses to the same overt act," you must acquit the defendant.

On the other hand, if you should find from the evidence beyond a reasonable doubt that, while owing allegiance to the United States and while adhering to the enemies of the United States, the defendant did commit one or more of the overt acts alleged, and that such act or acts have been proved in entirety as charged in the indictment, by "the testimony of two witnesses to the same overt act," it would be your duty then to consider the fourth essential element of the charge.

11-O The fourth essential element of the charge in the indictment is the allegation:

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.

An overt act may not serve as a basis for conviction of the crime of treason unless the act be treasonable in character. That is to say, the overt act must be an act which "really was aid and comfort to the enemy."

In the words of the United States Supreme Court in the case of United States v. Cramer, decided April 23, 1945, 325 U.S. 1, 34, 64 S. Ct. 918, 934, 89 L. Ed. 1441:

"The very minimum function that an overt act must perform in a treason prosecution is that it show sufficient action by the accused, in its setting, to sustain a finding that the accused actually gave aid and comfort to the enemy."

Thus the character of the overt act must be judged in its setting, in the light of any related facts and events, in the light of all surrounding circumstances as shown by all the evidence. Overt acts of an apparently incriminating character, when judged in the light of related events, may turn out to be acts which were not of aid or comfort to the enemy. On the other hand, overt acts innocent on their face, when judged in the light of related events, may turn out to be acts which "actually gave aid and comfort to the enemy."

An overt act which strengthens or tends to strengthen the enemies of the United States in the conduct of war against the United States, is in law the giving of aid and comfort. So, also, an act which weakens or tends to weaken the power of the United States or resist or to attack the enemies of this country is in law the giving of aid and comfort.

Aid and comfort may be said to be given whenever the enemy is encouraged and his morale bolstered, as well as when munitions and supplies are furnished. Acts which "give the enemy heart and courage to go on with the war," even unsuccessfully, may be acts of aid and comfort.

11-O(1) In 1942 the United States and Japan entered into a binding agreement that the handling of all prisoners of the war in which both countries were then engaged would be governed by the Geneva Convention of 1929, a copy of which is in evidence.

11-O(2) It is the duty of all prisoners of war to obey the laws, rules and regulations in force in the country where they are detained.

While held by the enemy, prisoners of war are not of course amenable to the discipline of their own officers, but they are subject to discipline and punishment by the detaining power for violations of any law, rule or regulation of the detaining power.

11-O(3) If you find it to be shown beyond a reasonable doubt and by the direct testimony of two or more witnesses to the same overt act, that the defendant did commit one or more of the overt acts charged in the indictment and remaining to be submitted for your consideration, but also find that such overt act or acts were not such as "actually gave aid and comfort to the enemy," then the crime of treason was not committed, and you must acquit the defendant.

On the other hand, if you should find from the evidence beyond a reasonable doubt that, while owing allegiance to the United States and while adhering to the enemies of the United States, the defendant did commit one or more of the overt acts charged in the indictment and remaining to be submitted for your consideration, and that one or more of the overt acts so committed "actually gave aid and comfort to the enemy," it would be your duty then to consider the fifth essential element of the charge.

11-P The fifth essential element of the charge in the indictment is the allegation:

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.

In every crime there must exist a union or joint operation of act and intent. The burden is always upon the prosecution to prove both act and intent beyond a reasonable doubt.

11-P(1) As the United States Supreme Court said in the Cramer case previously mentioned, 325 U.S.at page 29, 65 S. Ct.at page 932:

"* * * the crime of treason consists of two elements: adherence to the enemy; and rendering him aid and comfort. A citizen intellectually or emotionally may favor the enemy [*846] and harbor sympathies or convictions disloyal to this country's policy or interest, but so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions which do aid and comfort the enemy -- making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength -- but if there is no adherence to the enemy in this, (and) if there is no intent to betray, there is no treason."

11-P(2) In prohibiting the enactment of laws abridging freedom of speech, our Constitution recognizes the right to speak critically of and to express intense dislike for any public official, be he a general of the army or the Commander in Chief. It is not charged here that any remark of the defendant, critical or otherwise, if he made such constitutes treason.

I repeat now the caution frequently given during the course of the trial: that evidence as to remarks or comments or statements made by the defendant, if any, has been received for the sole and limited purpose of aiding the jury to determine the state of mind or intent with which the defendant acted, if you should find from the direct testimony of two witnesses to the same overt act that the defendant did one or more of the alleged overt acts charged in the indictment and remaining to be submitted for your consideration.

11-Q You will note the indictment charges that the claimed overt acts of the defendant were done "knowingly, intentionally, wilfully, unlawfully and feloniously . . . ."

An act is done "knowingly" if done voluntarily and with guilty knowledge, and not because of mistake or inadvertence or other innocent reason.

An act is done "intentionally" if done voluntarily and purposely.

An act is done "wilfully" if done voluntarily and purposely and with the specific intent to violate the law.

"Unlawfully" means contrary to law. Hence to do an act "unlawfully" means to do intentionally something which is contrary to law.

"Feloniously" means with criminal intent and evil purpose. Hence to do an act "feloniously" means to do intentionally an unlawful act without color or right or excuse.

11-R A person is held to intend to do everything such person knowingly does in fact do. As stated before, an act is done knowingly if done voluntarily and with guilty knowledge, and not because of mistake or inadvertence or other innocent reason.

Intent may be proved by circumstantial evidence. It rarely can be established by any other means. While witnesses may see and hear and thus be enabled to give direct evidence of acts of an accused, obviously no one can ever give an eye-witness account of the state of mind or intent with which such acts were done. What a defendant does or fails to do, however, may show intent or lack of intent to commit the offenses charged.

You are not bound by a defendant's statements or declarations as to intent. On the contrary, you may find the mental state or intent of a defendant at a given time to be contrary to subsequent protestations or sworn declarations.

It is your duty to examine all the facts and circumstances in evidence which tend to shed light on intent.

11-S Intent and motive should never be confused. Motive is that which prompts a person to do an act. Intent refers only to the state of mind with which the act is done.

A good motive, even a laudable one, may prompt a person to commit a crime. Personal advancement and financial gain are two well recognized motives for much of human conduct. Those motives may prompt one person to voluntary acts of good, another to voluntary acts of crime.

Good motive is never a defense where the act done is a crime. If a person does intentionally an act which the law denounces as a crime, motive is immaterial.

11-T The element of intent, you will remember, is an essential element of every crime. With respect to lesser crimes, if it be shown that a person has voluntarily committed an act denounced by law as a crime, intent may be presumed from the mere doing of the forbidden act.

But in the case of major crimes, proof of specific intent to commit the particular crime is required before there can be a conviction. Specific intent, as the term suggests, means more than a mere general intent to commit the act.

Thus where the crime charged is treason, the burden is upon the prosecution to prove beyond a reasonable doubt not only that the defendant acted voluntarily, but also that he acted with treasonable intent -- intent to give aid and comfort to the enemies of the United States, and to adhere to the enemies of the United States for that purpose.

In other words, alleged overt acts of aid and comfort must be intentional as distinguished from merely negligent or undesigned ones; and to commit treason a person must not only intend his overt acts, but must also intend to betray his country by means of such acts.

11-U If you find beyond a reasonable doubt and from the direct testimony of at least two witnesses [*847] to the whole of the same overt act that the defendant, while owing allegiance to the United States, did commit one or more of the overt acts charged in the indictment and submitted for your consideration, your next duty would be to determine whether the act was committed voluntarily.

You will recall it has been stipulated that in January, 1944 the company operating the Oeyama mine and smelter was placed under control of the Government of Japan, and that commencing August 15, 1944 the defendant was forbidden by the law of Japan to cease working as interpreter there without permission of the Japanese Government.

As to any overt act or acts charged in the indictment and submitted for your consideration which you may find to have been committed by the defendant, if you further find that the defendant did not do the act or acts 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.

On the other hand, if you should find from the evidence beyond a reasonable doubt that the defendant did not act under coercion or compulsion, but did voluntarily commit one or more of the overt acts charged in the indictment and submitted for your consideration, and in so doing acted knowingly, intentionally, wilfully, unlawfully and feloniously, as charged, your next duty would be to determine whether the defendant so committed such overt act or acts with treasonable intent.

11-U(1) The sixth essential element of the charge in the indictment is the allegation 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.

You will note the indictment charges that the claimed overt acts of the defendant were done traitorously and treasonably.

An act is done "traitorously" if done voluntarily and with the intent to betray the country to which allegiance is owing.

An act is done "treasonably" if done voluntarily with the intent to adhere to and give aid and comfort to the enemies of the country to which allegiance is owing.

11-V Thus intent to act traitorously and treasonably includes (1) specific intent to betray the United States, (2) specific intent to adhere to the enemy for the purpose of giving aid and comfort to the enemy, and (3) specific intent to give aid and comfort to the enemy.

11-V(1) As to any overt act or acts charged in the indictment and submitted for your consideration 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.

11-W Since the intent or state of mind with which a person acts or fails to act cannot be shown by direct evidence, the constitutional requirement that the prosecution adduce "the Testimony of two Witness § to the same overt Act" does not apply to the issue of intent. Unlike overt acts giving aid and comfort to the enemy, treasonable intent -- specific intent to betray, specific intent to adhere to the enemy, and specific intent to give aid and comfort to the enemy -- may be proved by circumstantial evidence.

You may infer the defendant's state of mind or intent from all the evidence in the case -- including facts done and statements or admissions made by the defendant, if any, related facts and events, and all other surrounding circumstances shown by the evidence.

To paraphrase the language of the Supreme Court of the United States in the Cramer case, 325 U.S. at pages 31-32, 65 S. Ct. 918, 89 L. Ed. 1441.

What is designed in the mind of an accused never is susceptible of proof by direct testimony.

Since intent must be inferred from conduct of some sort, it is permissible to draw usual reasonable inferences as to intent from the overt acts -- and all surrounding circumstances. The law of treason, like the law of lesser crimes, assumes every man to intend the natural consequences which one standing in his circumstances and possessing his knowledge would reasonably expect to result from his acts. Proof that a citizen did give aid and comfort to an enemy may well be in the circumstances sufficient evidence that he adhered to that enemy and intended and purposed to strike at his own country.

As previously stated, in order to justify a verdict of guilty based in part upon circumstantial evidence, the facts in the chain of circumstances relied upon must be consistent with the guilt of the accused, and inconsistent with every reasonable supposition of innocence.

11-X If you find that the defendant did voluntarily commit one or more of the overt acts charged in the indictment and submitted for your consideration, and that such overt act or acts [*848] "actually gave aid and comfort to the enemy," but further find that the defendant had no intent to adhere to or assist our enemies in their prosecution of the war, or to hamper the United States in its prosecution of the war, then the defendant did not act with treasonable intent, and you must acquit him.

On the other hand, if you should find from the evidence beyond a reasonable doubt that, while owing allegiance to the United States, the defendant, with treasonable intent, did adhere to the enemies of the United States, to wit, the Government of Japan, and did voluntarily commit one or more of the overt acts charged in the indictment and submitted for your consideration, and that such overt act or acts "actually gave aid and comfort to the enemy," and that in so doing the defendant acted knowingly, intentionally, wilfully, unlawfully, feloniously, traitorously and treasonably as charged, it would be your duty then to consider the seventh and eighth essential elements of the charge.

11-Y The seventh and eighth essential elements of the charge set forth in the indictment are:

That such overt act or acts of treason were so committed 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 that the Southern District of California is the district of the United States wherein the defendant was thereafter first found and apprehended.

The burden is upon the prosecution to prove beyond a reasonable doubt those facts in order to show that this court -- the United States District Court for the Southern District of California -- is the place provided by law for the trial of the defendant for the offense of treason charged.

Article III, Sec. 2 of the Constitution of the United States provides that: "The Trial of all Crimes * * * shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

Pursuant to the power thus conferred by the Constitution, the Congress in 1790 enacted in substance what is today Sec. 102 of Title 28 of the United States Code (1948 Revised Criminal Code, 18 U.S.C.A. 3238), which provides that: "The trial of all offenses * * * committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district where the offender is found, or into which he is first brought."

The crime of treason charged in the indictment, if committed by the defendant, was committed in Japan -- "out of the jurisdiction of any particular state or district" of the United States.

There is no evidence that the defendant was "brought" -- that is, carried or transported in custody -- into any district of the United States. So in considering the seventh and eighth essential elements of the charge, the only issue for your to determine is whether or not the defendant was first "found" in this district -- the Southern District of California -- as charged in the indictment.

The words "district where the offender is found," as used in the statute, mean the district of the United States in which the defendant is first apprehended or arrested or taken into custody.

The Southern District of California covers generally the southern portion of the state, including the County of Los Angeles.

11-Z The fact I have suggested that you consider the evidence as to the essential elements of the charge in a particular order or sequence is nothing more than a suggestion. As triers of the facts -- as sole judges of the credibility of all witnesses and the weight and effect of all evidence -- it is the exclusive province of the jury to determine in the course of deliberation the sequence in which the evidence in the case is to be considered.

12 In your consideration of the evidence you are not limited to the bald statements of the witnesses. On the contrary, you are permitted to draw, from facts which you find have been proved, such inferences as seem justified in the light of your experience as reasonable men and women.

An inference is a deduction or conclusion which the reason of the jury makes from the facts proved, without any express direction of law to that effect.

A presumption is an inference or conclusion which the law requires the jury to make from particular facts in the absence of convincing evidence to the contrary. A presumption continues in effect until overcome or outweighed by evidence to the contrary; but unless so outweighed the jury are bound to find according to the presumption.

It is a presumption of the law that official duty was regularly performed.

13 You should distinguish carefully between what has been testified to by witnesses and what has been stated by the attorneys. Statements and arguments of counsel are not evidence in the case.

However, when the attorneys have stipulated or agreed to certain facts, you are to regard such facts as conclusively proved.

14 You must consider only the evidence before you. That evidence consists of the sworn testimony of the witnesses, the exhibits which [*849] have been received in evidence, all facts which have been stipulated or agreed to by counsel, and all applicable presumptions stated in these instructions.

Any evidence as to which an objection was sustained by the court, and any evidence which was ordered stricken by the court, must be entirely disregarded.

15 There are fifteen alleged overt acts of treason charged in the indictment. As I have previously advised you, alleged overt acts designated as "(m)" and "(n)" are withdrawn, "(m)" by the government and "(n)" by the court, from your consideration as possible acts of treason. So there are now submitted to you as possible acts of treason alleged overt acts designated as "(a)", "(b)", "(c)", "(d)", "(e)", "(f)", "(g)", "(h)", "(i)", "(j)", "(k)", "(l)" and "(o)" in the indictment.

15-A The mere fact an alleged overt act is submitted as a possible act of treason does not carry any suggestion or intimation that the alleged overt act was or was not committed by the defendant, voluntarily or otherwise, or that the alleged overt act has been proved by the direct testimony of two witnesses or otherwise. Nor is it suggested or intimated, by submitting for your consideration an alleged overt act, that the overt act if committed actually gave aid and comfort to Japan in the conduct of its war against the United States. Nor is it suggested or intimated, if you should find an alleged overt act submitted for your consideration was voluntarily committed by the defendant which actually gave aid and comfort to the enemy, that such overt act was committed with treasonable intent. Whether or not the whole of an alleged overt act was committed with treasonable intent. Whether or not the whole of an alleged overt act submitted to the jury for consideration has been proved by the direct testimony of at least two witnesses; and if so proved to have been proved by the direct testimony of at least two witnesses; and if so proved to have been committed by the defendant, whether or not the overt act was committed by the defendant knowingly, intentionally, wilfully, unlawfully, feloniously, traitorously and treasonably, as charged in the indictment; and whether or not the overt act, if so committed, actually gave aid and comfort to the enemy -- all are questions of fact which it is the exclusive province of the jury to determine from all the evidence in the case.

Alleged overt acts "M" and "N" which have been withdrawn are to be treated the same as if never included in the indictment. Evidence as to the alleged overt acts which have been withdrawn is to be considered by you for the same limited purpose as evidence of other acts not alleged in the indictment.

As explained from time to time while evidence was being received, testimony or other evidence as to acts or happenings or events not charged in the indictment has been admitted for the sole and limited purpose of aiding the jury to determine from all related events -- all the surrounding circumstances -- the state of mind or intent with which the defendant acted, if the jury should find from the direct testimony of two witnesses to the same overt act that the defendant did one or more of the alleged overt acts charged in the indictment and now submitted for your consideration.

16 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.

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;

[*850] 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.

16-A It would of course be a violation of your sworn duty, if you should find the defendant guilty because of some conduct personally offensive to you, but not constituting the crime of treason as charged in the indictment and defined in these instructions.

17 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.

18 It is the duty of the Judge to see that the trial is conducted with due regard to the rules of evidence and to the rules of procedure of the court. At times, counsel for both sides, in their zeal for their causes, may do something which is not in keeping with those rules. When this occurs, it is the duty of the Judge to admonish counsel, even without objection by the other side.

You are to draw no inference against the side to whom any admonition may have been addressed by the court, be it the prosecution or the defense.

19 The punishment which the law provides for the offense charged in the indictment is a matter exclusively within the province of the court, and should not be considered in your deliberations in any way.

20 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.

21 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.

22 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 incorrect. 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.

23 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.

24 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.

A form of special verdict has been prepared for each of the thirteen alleged overt acts submitted to you.

[*851] (Form of special verdict is read.)

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."

(Form of general verdict is read.)

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.

25 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.

. . . .

2. Form of Special Verdict as to Alleged Overt Act "(b)" which is typical of the thirteen forms of special verdict submitted to the jury, follows:

IN THE DISTRICT COURT OF THE UNITED STATES SOUTHERN DISTRICT OF CALIFORNIA CENTRAL DIVISION

UNITED STATES OF AMERICA, Plaintiff, v. TOMOYA KAWAKITA, Defendant.

No. 19665 Criminal

SPECIAL VERDICT AS TO ALLEGED OVERT ACT "(b)"

We, the jury in the above entitled cause, unanimously find as follows:

Interrogatory Finding of the Jury

(1) During the period specified in the indictment, namely, August 8, 1944 up to and including August 24, 1945, was the defendant, Tomoya Kawakita, an American citizen owing allegiance to the United States, as charged in the indictment?

. . . ("YES" or "NO")

(2) Did the defendant, while an American citizen owing allegiance to the United States, cast his lot with and adhere to the enemies of the United States, to wit, the Government of Japan, with the intent to betray the United States, as charged in the indictment?

. . . ("YES" or "NO")

(3) Has it been proved by the direct testimony of at least two witnesses that the defendant, while an American citizen owing allegiance to the United States, and while adhering to the enemies of the United States, did commit the whole of the overt act alleged as "(b)" in the indictment, which reads as follows: "Defendant Tomoya Kawakita, during the latter part of April, 1945, the exact date of which is to the grand jury unknown, at said Camp Oeyama did direct and participate in the following inhuman and degrading punishment of one, J. C. Grant, a member of the armed forces of the United States who was then and there a prisoner of war at said Camp Oeyama: said J. C. Grant was knocked into the drain or cesspool of said camp by his Japanese guards and was repeatedly and violently struck and beaten by the defendant and the said Japanese guards as he attempted [*852] to get out of the pool, thereby sustaining injuries. shock and exposure."

. . . ("YES" or "NO")

(4) If committed by the defendant, was overt act "(b)" actually of aid and comfort to the enemies of the United States, to wit, the Government of Japan, as charged in the indictment?

. . . ("YES" or "NO")

(5) If, while an American citizen owing allegiance to the United States, the defendant did adhere to the enemies of the United States, and while so adhering did commit overt act "(b)", and if overt act "(b)" actually gave aid and comfort to the enemy as charged in the indictment, did the defendant, in so adhering to the enemies of the United States and in so committing overt act "(b)", do so knowingly, intentionally, wilfully, unlawfully and feloniously, as charged in the indictment?

. . . ("YES" or "NO")

(6) If, while an American citizen owing allegiance to the United States, the defendant did adhere to the enemies of the United States, and while so adhering did commit overt act "(b)", and if overt act "(b)" actually gave aid and comfort to the enemy as charged in the indictment, did the defendant, in so adhering to the enemies of the United States and in so committing overt act "(b)", do so 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, as charged in the indictment?

. . . ("YES" or "NO")

(7) If the finding of the jury be "YES" in response to each of the foregoing interrogatories (1) to (6) inclusive, did the defendant commit overt act "(b)" at or near Camp Oeyama, on the Island of Honshu, Japan, as charged in the indictment?

. . . ("YES" or "NO")

(8) If the finding of the jury in response to Interrogatory (7) be "Yes", was the defendant thereafter first found in this district of the United States, the Southern District of California, as charged in the indictment?

. . . ("YES" or "NO")

Los Angeles, California. August . . ., 1948.

. . . Foreman of the Jury

(See: Cramer v. United States, 1945, 325 U.S. 1, 36, note 45, 65 S. Ct. 918, 89 L. Ed. 1441.

. . . .

3. The proceedings then had in open court are reported in material part as follows:

Thursday, August 26, 1948, 10:15 A.M.

(41 R. 5588):

Mr. Carter: Ready for the Government.

Mr. Lavine: Ready for the defendant.

The Court: The bailiff has brought me a note from the jury which reads as follows: "Some of the Jurors wish to refer to the testimony, but do not remember just where to look therefore would like the entire transcript.

(Signed) Wm. W. Andrews, Foreman."

Mr. Lavine: Would your Honor instruct the Marshal to tell them that they should send a note down as to the subject matters that they would like to refer to?

(41 F.5589):

Mr. Carter: The names of the witnesses, if they recall; if not, the general subject matter; and if the name of the witness, the subject matter also. They can remember it in one form or the other, I am sure.

Mr. Lavine: That would be agreeable.

The Court: Mr. Bailiff, you will inform the foreman that if he will specify the testimony, either by the name of the witness or by reference to the general subject matter, or both, then we will endeavor to locate the transcript that they desire.

The Court: The bailiff has just handed me a further communication from the jury which reads as follows:

"Marie Ziegler wishes the transcript of the testimony of Fujisawa.

"Margaret Umbarger wishes the transcript of the testimony of Kawakita.

"Gertrude Shoemaker wishes the transcript of the

(41 R. 5590): testimony of Montgomery on the subject of Overt Act B, as alleged. (Signed) Wm. W. Andrews, Foreman."

Mr. Carter: I have never heard of sending a transcript in to the jury room.

Mr. Lavine: No. I think we will have to have them come down and have it read, your Honor.

The Court: Yes; let the reporter read it from the transcript.

[*853] (Thereupon the jury were brought into open court and the testimony was read by the reporter.)

(41 R. 5595):

Foreman Andrews: If your honor please, Mrs. Umbarger has stated she does not wish to hear the testimony she formerly requested.

The Court: Has the jury heard now all the portions of the transcript they desire to have read at this time? * * * If you have heard what you desire to hear, you will now retire to the jury room for further deliberation.

(The jury retire from the courtroom.)

. . . .

4. The proceedings then had in open court are report in material part as follows:

Saturday, August 28, 1948, 3:20 P.M.

(41 R. 5607):

The Court: Ladies and gentlemen of the jury, the bailiff a few minutes ago brought a communication from your foreman which has been filed and which reads as follows:

"The jury is unable to arrive at a verdict. A majority of the jury feel there is no probability of doing so.

(Signed) Wm. W. Andrews, Foreman."

That communication was discussed with counsel, and in order to save you the inconvenience of coming here to hear the court's reply, the defendant and prosecution both stipulated that the court might instruct the bailiff to orally say to you what the court wished to say to you, namely, that the court wishes you to continue with your deliberations.

The bailiff has now returned with a further communication which reads as follows:

"The majority of the jury would appreciate a recess until Monday A.M.

(Signed) Wm. W. Andrews, Foreman."

I have discussed that communication also with counsel

(41 R. 5609): and both sides recognize, and I do, that this has been a long trial, and they are agreeable that you suspend your deliberations, if you desire to do so, until Monday morning and thereby get some rest, if you desire so to rest.

Of course, you will appreciate that you must be kept together. The law requires that, and you have heard the oaths that the bailiffs who have you in charge have taken.

Of course, there can be no communication by any of you with anyone from the outside relative to any matter involving this case. In other words, you are not to have read any newspapers and, as I have told you before, you are not to communicate with anyone nor to permit anyone to communicate with you anything concerning this case unless you have a communication to send to the court through he bailiff.

(41 R. 5610):

Is there anything which either side would have me say further to the jury is connection with the matter?

Mr. Carter: Nothing further.

Mr. Lavine: Well, nothing in connection with that matter, unless your Honor desires to make further inquiries along the line of the first communication. That would be the only thing. It would be up to your Honor, because of the word used in there that your Honor had some doubt about.

The Court: As long as we are all agreed to take a recess and rest until Monday morning, we will do that at this time. I am sure that all counsel and all persons involved will be glad to rest in this case until Monday morning, as you are.

You may retire at this time, and pursuant to the agreement of the parties, you may suspend your deliberations until Monday morning at 9:30. You will be in the custody of the bailiffs who were sworn at the time the case was given to you, and you will be in their custody under the oath which you heard them make at that time.

You may retire.

(The jury retire from the courtroom.)

. . . .

5. The proceedings then had in open court are reported in material part as follows:

Monday, August 30, 1948, 9:30 P.M.

(41 R. 5618):

The Court: Members of the jury, I have received a further communication from the foreman which reads as follows:

"The Foreman, personally, respectfully requests permission to approach the bench, or other similar action, for the reason of securing aid and advice of the Court, on a matter of procedure, concerning the

(41 R. 5619): proper deliberating of this jury. This matter is, in my belief serious and Y am supported in that belief by other members of the jury. The Court's consideration of this request will be appreciated, and of help.

(Signed) Wm. W. Andrews, Foreman."

Before anything is said I want to caution you again: The court is not interested until you have reached unanimous agreement in hearing anything about how the jury stands numerically or otherwise, as I told you at the time the case was given to you. So in anything that is said, I want to caution you against any statement of any kind as to how you stand numerically or in any other manner.

What is the question as to procedure?

The Foreman: Your Honor, it is my belief that we have a juror here who is impeding justice.

[*854] The Court: Now, I don't want to hear anything about it. That is indicating how you stand.

The Foreman: Your Honor, it is not?

The Court: It is a question of the procedure.

The Foreman: It does not indicate how we stand.

The Court: Very well. Perhaps I am too hasty.

The Foreman: There are other members. We are not 11 to 1 or anything else.

The Court: I don't want to hear anything about how you stand.

(41 R. 5620):

The Foreman: I understand. Excuse me, please, your Honor.

The Court: Proceed, please, Mr. Foreman.

The Foreman: I believe that this juror is impeding justice, interfering with the course of this trial, and making it so that this jury will never and can never arrive at a verdict; and that we are kept there, not only unable to proceed, but with this person who is personally objectionable to some members of the jury.

The Court: Is that the question?

The Foreman: And we wish to know what to do.

The Court: Well, you have had a rest over the week end as you requested. I hoped that all of you would come back refreshed and ready to continue your labors today.

It is not helpful for jurors or any other people to criticize each other. I told you upon giving you the case your sole function here is the ascertainment of the truth from the evidence before you.

You are not partisans. You are judges -- the judges of the facts. Your sole function is to determine the truth from the evidence -- the truth as to the facts.

Now, you were given a number of questions to answer. Numerically, they are quite a goodly number, but you have seen, no doubt, from reviewing the forms of

(41 R. 5621): special verdicts handed you the eight questions asked as to each overt act are the same questions with respect to each overt act, that is, insofar as they apply to the various overt acts.

I suppose all of use are prone to think that when people do not agree with us that the other fellow is wrong. The purpose of instructing the jury to deliberate together is to have you receive each other's views and listen to them with due respect and regard for the other fellow. That is the American way.

We each have our points of view, and sometimes when we discuss the problem together with an open mind and fairly we reach an agreement; and that is why I said when the case was given to you the verdict must represent the individual judgment of each juror. Your verdict must be unanimous. But it is your duty to consult and deliberate with each other with a view to reaching an agreement if you can do so without violence to your individual judgment or conscience.

I am sure you all understand that from the instructions given. No juror is expected to surrender his or her conscientious convictions as to the credibility of witnesses or as to the weight of the respective evidence for the mere purpose of arriving at a verdict.

It is not for me to tell the jury how to deliberate or the order in which they are to deliberate. I am sure all of you are mindful of your duties, and I would suggest you now retire and deliberate further.

(41 R. 5622):

The Foreman: May I be heard further, your Honor?

The Court: Yes.

The Foreman: I am in a peculiar position because I am one of the few lawyers probably who have ever been on a jury. I have been on juries years ago, I have been on juries during this term, and I think I know something about both sides of the jury, and we go as far as we can with anything.

When it comes to a point where a supposedly reasonable person or persons feel it is impossible to continue, then we speak. And I spoke Saturday, and I am not alone.

The Court: We do not want to hear what goes on in the jury room.

The Foreman: I understand. That was the message that I sent to your Honor: I am not alone.

I would appreciate if the jury were polled as to an opinion on this because, after all, we have some things to do. If we feel it is utterly impossible, it seems it is not required of us to do a useless act. And, as I say, there is a personal animosity there that could possibly be dangerous.

The Court: Well, can't you poll yourselves up in the jury room?

The Foreman: We have, your Honor.

The Court: It won't help to poll you on such a question as that. I don't even know the question you wish to be polled upon.

(41 R. 5623):

The Foreman: We wish to be excused. We feel that we cannot arrive at a verdict and the jury has been polled.

Mr. Lavine: I now request that the jury be polled on that question, your Honor.

The Court: What question?

Mr. Lavine: Whether they feel it is impossible to reach a verdict.

Mr. Carter: One of the jurors indicated, raised his hand here a minute ago on some matter.

The Court: Was that you, Mr. Clancy?

Juror Clancy: I don't think there is any chance in the world for this jury to agree. We have been locked up five nights and five days and we have not accomplished a thing and we never will. There is animosity crept in and there is everything crept in.

[*855] The Court: Well, you have serious questions there to answer, ladies and gentlemen. There is indication or space provided for a "yes" or "no" answer to those questions. Are you to suggest you can't answer any of the questions?

Juror Clancy: Yes, your Honor.

The Foreman: That is the suggestion, your Honor. We have not answered any questions.

The Court: Are you suggesting to me that it is impossible for the jury to agree upon a single answer to any one of the 104 questions propounded?

(41 R. 5624):

Juror Clancy: Yes.

The Foreman: Yes, your Honor.

Juror Sidle: Could I say a work, your Honor?

The Court: Well, if it is -- yes; you may.

Juror Sidle: I have been on many juries. I understand -- I think I understand the procedure. We proceeded as instructed and, with the knowledge that we have, to the best of our ability, we discussed it and all of that. In other words, we approached it from every angle. There isn't an angle that I can think of that could be approached that would bring about, as we feel, any positive result or agreement.

We agree and not agree, and we just can't get anywhere with a situation, in the slang phrase, "hung up." That is what we are up against.

Further, your Honor, we realize, every one of us realizes the importance and the time and energy that has been put into this situation. We realize, further, individually, that we owe all of our energy and all of our time to put forth in this in trying to arrive, and went at it from every angle, and it has gotten to the point where, personally, I feel that there is absolutely nothing can be done.

Of course, if the court has anything or could do anything to help -- but I understand. I am still willing to go ahead as long as my energies will hold up.

(41 R. 5625):

Mr. Lavine: May it please the court, in view of the statement of the three jurors I now again renew my motion to discharge the jury * * *.

The Court: The motion is denied * * *.

Mr. Lavine: I think anything else now would be in the nature of coercion. That is the ground of my motion.

The Court: Yes; I understand.

The court wishes to assist you in every way possible, ladies and gentlemen. Of course, as I have told you throughout the trial, you are the sole judges of the credibility of the witnesses and of the weight and effect of the

(41 R. 5626): evidence. You are the sole judges of how you shall deliberate, and while the court may keep you deliberating, the court can't make you deliberate. It is the old story: You can ride a horse to the water, but you can't make him drink.

When a situation like this is reached, the court tries to be of assistance to the jury. Frequently the position is made -- and in many instances, perhaps, properly so -- that the court is attempting to coerce the jury or to force the jury to arrive at a verdict.

A verdict is desirable, but it is only desirable if it is a true verdict. It is only a true verdict if it represents the individual judgment, the honest individual judgment of each juror.

Do you wish any further suggestions from the court?

The Foreman: I still insist, your Honor, that it is utterly impossible. Persons of ordinary and reasonable intelligence could discuss things and arrive at any point?

The Court: That was not my question. My question was: Do you want any further suggestions from the court?

The Foreman: I renew my request that the jury be dismissed, your Honor.

The Court: Who was it had up their hand? Mrs. Ziegler, do you have something?

Juror Ziegler: Perhaps not. May I, your Honor?

(41 R. 5627):

The Court: Yes, you may.

Juror Ziegler: Would it be out of form to have a new foreman? Mr. Andrews has not been well over the week end and somebody else has not.

The Court: You are entitled to elect your own foreman at any time.

Juror Ziegler: That would not help any.

The Foreman: I might say that the lady nominated me for foreman, your Honor.

Juror Ziegler: Yes; I did.

The Court: Let us not get into that. These personalities do not have anything at all to do with the court, and these personal relationships sometimes are the things that keep us from being open-minded and arriving at a verdict.

The court wishes to suggest a few thoughts which you may wish to consider along with your consideration of the evidence and all the instructions previously given you.

This is an important case. The trial has been long and expensive. If you should fail to agree on a verdict, the case is left open and undecided. Like all cases, it must be disposed of sometime. There appears no reason to believe that another trial would not be equally long and expensive; nor does there appear any reason to believe that the case can be again tried any more exhaustively than it has been on the part of either side.

(41 R. 5628):

Any future jury must be selected in the same manner and from the same source as you have been chosen. So there appears to be no reason to believe that the case would ever be submitted to twelve men and women more intelligent, more impartial, more competent to [*856] decide it, or that more or clearer evidence could be produced on the part of either side.

As I told you at the time I instructed you, it is rarely possible to prove or disprove, either way -- it is rarely possible to prove or disprove anything to an absolute certainty.

Upon brief reflection, the matters I have mentioned suggest themselves, of course, to all of us who have sat through this trial. The only reason they are mentioned is because some of them may have escaped your attention, which must have been fully occupied in your consideration of all the evidence up to this time. These are matters which, along with other and perhaps more obvious ones, remind us of the desirability that you give the jury's unanimous answer to the questions asked on the 13 forms of special verdict submitted, and that you unanimously agree upon a general verdict of guilty or not guilty if you can do so without violence to your individual judgment and your conscience.

It is unnecessary for me to say again that the court does not wish any juror to surrender his or her conscientious convictions. As I stated at the time the case was submitted to you, do not surrender your honest convictions

(41 R. 5629): as to the weight or effect of evidence solely because of the opinion of other jurors, or for the mere purpose of arriving at a verdict.

As I said at the time, also, it is your duty as jurors, however, to consult with one another and to deliberate with a view of reaching an agreement if you can do so without violence to individual judgment.

Each of you must decide the case for yourself, but you should do so only after a consideration of the evidence with your fellow jurors. And in the course of the deliberations you should not hesitate to change an opinion when convinced it is erroneous. And certainly a juror should never hesitate to change his opinion by reason of personalities, if * * * convinced from the evidence and from the arguments made in the jury room that the opinion * * * previously held is erroneous.

In order to bring 12 minds to unanimous results, you must examine the questions submitted to you with candor and frankness, and with a proper regard and deference to the opinion of each other. That is to say, in conferring together you should pay due attention and respect to each other's opinions and listen to each other's arguments with a disposition and open-minded -- a disposition to be convinced.

If the much larger number of you are for a conviction, each dissenting juror should consider whether

(41 R. 5630): a doubt in his or her own mind is a reasonable one, since it makes no effective impression upon the minds of so many equally honest, equally intelligent fellow jurors who have heard the same evidence with the same attention and with an equal desire to arrive at the truth and under the sanction of the same oath.

On the other hand, if a majority or any substantial number of you are for acquittal, the other jurors ought seriously to ask themselves again whether they do not have reason to doubt the correctness of a judgment which is not concurred in by many of their fellows.

Mr. Lavine: Had your Honor concluded?

The Court: No. The court and the jury are here to come to a just and righteous result in this case. You are as anxious to reach that result, I know, as I am.

As I have stated to you before, you are not partisans. You are judges -- judges of the facts and your sole purpose is to ascertain the truth as to the facts from the evidence, and in ascertaining the truth as to the facts you are the sole and exclusive judges.

You must know it by heart by now. You are the sole and exclusive judges of the credibility of the witnesses and the weight and effect of all the evidence, and in the performance of your duties you are entitled to disregard, disregard entirely, all comments of the court and counsel

(41 R. 5631): in reaching your own judgment and in making your own findings as to the truth as to the facts.

Let me repeat again so that you will not feel that any remarks I have made are intended to put any coercion or pressure upon you: No juror is expected to yield a conscientious conviction he or she may have as to the credibility of any witness or as to the weight or effect of any evidence, but, as I have previously said, it is your duty, members of the jury, to agree, unless after a full and impartial consideration of all the evidence with your fellow jurors, to agree would do violence to your individual judgment and conscience.

There has been some suggestion here -- there was Friday -- that some of you were very tired. Perhaps I should have suggested to you at the outset that you may be as leisurely in your deliberations as the occasion and circumstances may require. Sometimes jurors may fail to agree because they hurry too much to try to agree. Sometimes people do that.

"I do not speak in any critical vein. We are dealing with an attempt to get 12 human beings to arrive at a common conclusion as to the truth.

You will remember at all times if any doubt remains in your mind, any reasonable doubt as to the guilty, the defendant is entitled to your verdict of acquittal.

The bailiffs have been instructed to take you to your meals whenever you wish to go, to take you to your hotel whenever you wish to go. You are to take all the time

(41 R. 5632): you may feel necessary for your deliberations.

You may now retire and continue your deliberations [*857] as your good and conscientious judgment as reasonable men and women may determine.

The Foreman: May I be heard further, your Honor? I think the court does not understand the point that I raise. No one here objects to which way any juror voted, but the manner and statements made indicate to us this long time that it is going to be utterly impossible to complete this. It is not -- no one here objects to any way or which way.

The Court: I understand that, Mr. Andrews.

The Foreman: I was not trying to state how the jury stood. But there is one question?

The Court: But sometimes, when people differ with us, that affects our opinion of them, you know.

The Foreman: I understand that, but as time goes by, it seems to me that sufficient time has gone by. That is my personal opinion and I have a great hesitancy for returning to the jury room.

The Court: Well, Mr. Andrews, you are a lawyer. Let me suggest to you that maybe you are able to arrive at your conclusion in some of these matters more rapidly by reason of your legal training. It may be necessary for some of the others to catch up with you.

(41 R. 5633):

The Foreman: I am not alone, sir.

The Court: Well, that may be true, too.

Mr. Lavine: I again renew my request, your Honor, in view of that statement, to discharge the jury.

The Court: Do you have something further, Mrs. Ziegler? You raised your hand.

Juror Ziegler: I don't feel like going out under the circumstances; I really don't.

The Court: It is very difficult, ladies and gentlemen of the jury, for the court to feel that you have completed your deliberations to the extent that you could under the court's instructions and not be able to arrive at a unanimous answer to one of the 104 questions presented to you. That may be the case.

It has been a long trial, as I say, and I know you are tired and you would like to be done with it. But in all the circumstances which have been mentioned here, I would ask you to deliberate further, to try further to see if you can't come to a unanimous agreement. If you can't answer all the questions, answer as many as you can. And remember, again, that no juror is expected to surrender his honest convictions if, after full deliberation and attention to the views of his or her fellow jurors, he or she remains convinced of the correctness of his or her stand on any matter involved.

You may now retire.

. 10 . .

6. This type of supplemental instruction has been approved by the Court of Appeals of each circuit.

E.g., Boston & M.R.R. v. Stewart, 1 Cir., 1918, 254 F. 14, 18; United States v. Dunkel, 2 Cir., 1949, 173 F.2d 506, 608; Shaffman v. United States, 3 Cir., 1923, 289 F. 370, 274-375; Lias v. United States, 4 Cir., 1931, 51 F.2d 215, 218, affirmed, 1931, 284 U.S. 584, 52 S. Ct. 128, 76 L. Ed. 505; Weathers v. United States, 5 Cir., 1942, 126 F.2d 118, certiorari denied, 1942, 316 U.S. 681, 62 S. Ct. 1267, 86 L. Ed. 1754; Israel v. United States, 6 Cir., 1925, 3 F.2d 743, 745; Paschen v. United States, 7 Cir., 1934, 70 F.2d 491, 503; Wright v. United States, 8 Cir., 1949, 175 F.2d 384, 388, certiorari denied, 1949, 338 U.S. 873, 70 S. Ct. 143; Shea v. United States, 9 Cir., 1919, 260 F. 807, 808; Speak v. United States, 10 Cir., 1947, 161 F.2d 562, 564; Bord v. United States, 1942, 76 U.S.App.D.C. 205, 133 F.2d 313, 315, certiorari denied, 1942, 317 U.S. 671, 63 S. Ct. 77, 87 L. Ed. 539.

In Bowen v. United States, 8 Cir., 1946, 153 F.2d 747, 751-752, certiorari denied, 1946, 328 U.S. 835, 66 S. Ct. 980, 90 L. Ed. 1611, the foreman sent a note to the court stating that the jury was positively deadlocked 11 to 1. The court then called in the jury and gave them the substance of Judge Hoar's classic instruction. The Court of Appeals approved the giving of such a supplemental instruction even under those circumstances.

. . . .

7. The proceedings then had in open court are reported in material part as follows: Tuesday, August 31, 1948, 11:20 A.M.

(41 R. 5641)

(The jury return into the court room.)

The Court: Ladies and gentlemen of the jury, I have received a further communication through the bailiff from which reads:

"Your Honor:

"The Jury respectfully requests the Court's clarification of all the instructions.

"Respectfully submitted, Elsie B. Nickel."

That is a pretty large order. Do you have any particular problems concerning which you desire further instructions, or are there any instructions which you do not understand which you would like to have me amplify?

(41 R. 5642):

Juror Nickel: Yes. We would like to have something told them on the special verdicts, and if you could define further the words "betray" and "felonious," I think in particular those would be very helpful.

The Court: And what is it you wish to know about the special verdicts?

Juror Nickel: Well, perhaps the order in which they should be voted on. It would be very helpful. * * * (Discussion)

(41 R. 5649):

[*858] Mr. Lavine: * * * I wish your Honor would instruct the jury that they can take into consideration all of the instructions given to them; that the instructions are to be considered as a whole on any of these questions, including all of them that your Honor has given, including 11-V(1) or any others, and they can take them as a whole and consider them as a whole, and not merely limit them to the particular instructions as to the special verdicts.

The Court: Yes. I am glad you mentioned 11-V(1). That is an instruction that I think might well be mentioned here. That deals with the question of intent. So

(41 R. 5650): in the logical arrangement of the questions put to you in the forms of special verdict, it really comes down under question No. (6), but you may want to discuss it in connection with question No. (1). I do not know whether you remember this instruction by number, but I think you probably do. It has been mentioned several times. Instruction 11-V(1) reads as follows: "As to any overt act or acts charged in the indictment and submitted for your consideration 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."

That brings me to this question of "betray." That is a word used in the opinion of the Supreme Court, you will remember, which I read to you. It is not used in any artistic or technical sense here. Perhaps we can get a better understanding of it by discussing it in connection with this instruction 11-V(1).

(41 R. 5651)

But let us consider the meaning of "betray" in connection with instruction 11-V(1). A person can't just accidentally be guilty of a crime such as treason, as I have explained to you. That is the reason that word "feloniously" was one of the words used in the indictment.

(41 R. 5655) You will recall I read to you in the instructions a quotation, instruction 11-P(1) -- a quotation from the United States Supreme Court in the Cramer case, which said:

"* * * the crime of treason consists of two elements: adherence to the enemy; and rendering him aid and comfort." (325 U.S. 1, 65 S. Ct. 932.)

Which is another way of saying, I take it, that you cast your lot and get on the enemy's side of the war; and secondly, you help him, you render him aid and comfort. And the court goes ahead to say;

"A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country's policy or interest," --

In other words, he may be at heart on the other side. And you remember, some of you, during the first world war a great many so-called hyphenated Americans were accused of being at heart on the side of Germany at war. But the court said: "but so long as he commits no act of aid and comfort to the enemy, there is no treason."

There is no treason in thinking about it. In other words, no treason in sympathizing, no treason in rooting for the other side, so to speak. Then the court proceeds:

(41 R. 5656):

"On the other hand, a citizen may take actions which do aid and comfort the enemy -- making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength -- "

In other words, he may actually do a great many things that actually help out the other side, "but if there is no adherence to the enemy in this, (and) if there is no intent to betray, there is no treason."

As applied to this case here we get back to instruction 11-V(1). That is the reason I gave you that instruction. This defendant, even though he was technically a citizen of the United States, if he honestly believed, if he honestly believed that he was not, if he honestly believed that during the period covered by this indictment that he was not an American citizen, then he could not have betrayed this

(41 R. 5657): country because he did not believe he owed it any allegiance.

* * * You can't betray a country unless you owe it allegiance, and you can't intent to betray it unless you know you owe it allegiance; and if you honestly believe you do not owe it allegiance, you could not commit treason.

That is the reason I said in instruction 11-V(1): "If 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, because treasonable intent is the intent to betray, the intent to go back on the country to which you owe allegiance and to help out the other side."

That is the reason instruction 11-V, the immediate preceding instruction, says: "Thus intent to act traitorously and treasonably includes (1) specific intent to betray the United States, (2) specific intent to adhere to the enemy for the purpose of giving aid and comfort to the enemy, and (3) specific intent to give aid and comfort to the enemy."

[*859] (41 R. 5658):

If a person has specific intent, if a person, first, knows that he owes allegiance to the United States, and he, knowing that, knowing that he is a citizen of the United States and that he owes his allegiance to the United States -- if, knowing that, he deliberately casts his lot with the other side, adheres to the other side, and deliberately, intentionally, knowingly, wilfully, and feloniously, to use some of the adverbs we have just been discussing -- * * * gives aid and comfort to the enemy, does acts which actually give aid and comfort to the enemy, with that state of mind, I would say, he had betrayed his country.

Are there any further questions?

Yes, Mr. Clancy.

Juror Clancy: Can the jury take a final vote on any or all of the overt acts before taking a final vote on questions (1) and (2)?

The Court: You may proceed as you desire. I do not know what you mean by "a final vote."

Juror Clancy: The last vote.

(41 R. 5659):

The Court: You may proceed in any manner in which you desire. You may determine the order of your deliberations. If you want to take up the various overt acts and decide whether they were proved first, there is nothing to prevent you from doing so.

I suggested the order, as I told you in the instructions, in which you might consider the eight essential elements of the charge, thinking that that was the logical way to proceed and it might be the most helpful way in which to proceed. And what occurs to one mind may not occur to others and it may not appear to you that way at all. And you are the sole judges of the manner in which you shall proceed, and you are the sole judges, of course, of the weight and effect of all the evidence and the credibility of all the witnesses; and you are entitled to and should disregard all comments of the court which are at variance with your own conscientious judgment in the matter.

Are there any further instructions which either side would have me give to the jury?

Mr. Carter: No further instructions, your Honor.

(41 R. 5661)

The Court: Do you think I have made it clear?

Mr. Lavine: I think it is clear now. I think they have it clear now since our discussion.

The Court: * * * You may now retire.

(The jury retired from the courtroom.)

. . . .

8. The proceedings had upon pronouncement of sentence are reported in material part as follows:

(43 R. 5830)

The Court: * * *

Is the defendant ready for sentence?

Mr. Lavine: Yes your Honor.

May it please the court, I have examined the probation officer's pre-sentence report * * *.

(43 R. 5851)

I believe, your Honor, that a fair disposition of this case in the way of a just sentence would do much to hearten our international relationship, as well as to give this defendant what, under the law, you feel that you wish to impose by way of punishment for his acts, remembering that he is a young man and has some hope that at some day in the future he may atone for the things of which he has been found guilty here -- things that he feels that were occurrences in a foreign land, in a foreign camp, in a place where there was nothing for him to do but to do and to act just as he did under the circumstances that he then found himself.

(43 R. 5852)

And I say, your Honor, in a few moments I conclude my plea on behalf of this young man. I think that we are living in a state that has been regarded as hostile to the Japanese people by reason of the events and occurrences of a great war. We must be careful that those events do not so bias or prejudice us in the pronouncement of a judgment in this case as to be other than what is fair and just under the circumstances. And I submit Tomoya Kawakita's fate to your fair and just determination.

The Court: Tomoya Kawakita, you are now before the Court for sentence, having been convicted by unanimous verdict of the jury of the crime of treason against the United States as charged in the indictment. Our law provides that whoever is guilty of treason shall suffer death, or shall be imprisoned not less than five years and fined not less than $ 10,000.

What, if anything, have you to say at this time as to why the maximum punishment provided by law should not now be imposed upon you?

The Defendant: Your Honor, I am innocent of this charge. I never did commit and never would commit any treason against the United States.

As I was found guilty by the jury, I ask your Honor for mercy.

The Court: Anything further?

(43 R. 5853)

The Defendant: No, sir.

The Court: Does the United States Attorney have anything to say?

Mr. Carter: I would like to call your Honor's attention to one or two matters. I heard your Honor's summary of the facts of this case on denying the motions. I am in accord with your analysis of the matters.

[*860] It would be impossible to figure up mathematically the suffering that this defendant caused the two hundred and some odd American prisoners in this camp over a period of a year. But more important, as the jury's verdict shows, he betrayed his country. And, as your Honor pointed out, there is little difference between a small traitor and a big traitor. He was a traitor to the extent of his ability.

And I want to point out, finally, that this defendant is stateless; that having been convicted of treason, he lost his American citizenship. From the investigation we made and the evidence that was produced at this trial, I think that he

(43 R. 5854) renounced his Japanese citizenship effectively before he came back to the United States.

Therefore we do not have a situation where we can say: Imprison him for a few years and then deport him to Japan. I do not think he is deportable because, if this judgment is affirmed and becomes final, I think he will be a stateless person and not deportable out of this country.

The Court: You gentlemen have performed your duties in this case most diligently. So has the jury. And this is now my responsibility.

I want to make it perfectly clear that the sentence I impose here has no relation to any brutalities that may have been involved in this defendant's treatment of American prisoners of war. That is only an incident. So with any kindness that he may have shown them. It is only an incident.

The defendant stands here convicted of the crime of treason. The fact that he was born of Japanese nationals has nothing to do with it. My views would be the same no matter who he was.

Treason is the only crime, as has been said here several times, mentioned in our Constitution. The framers thought it of sufficient gravity to provide it as the only crime mentioned in the Constitution of the United States.

As I view this matter, it is not a question of whether the defendant kicked some American prisoner of war or a

(43 R. 5855) dozen of them. His crime might be briefly put in two sentences. He said that from 1943 on he did everything he could to help the Japanese Government win the war.

The jury found that he owed a duty of loyalty at that time to the United States. So his crime cannot be considered, I take it, in terms of beating up someone, no matter how brutal. His crime is a crime against the country of his birth. His crime is not against a few American prisoners of war. His crime is against the whole people of this country where he was born and where he was fed and where he was educated.

Throughout history treason has always been the crime most abhorred by English-speaking peoples. The traitor has always been considered even worse than a murderer. And the distinction is based upon reason: for the murderer violates at most only a few, while the traitor violates all -- all the members of his society, all the members of the group to which he owes his allegiance. The punishment inflicted by the common law -- when traitors were publicly dragged to the place of execution and there drawn, quartered and beheaded -- recalls the extreme odium which our forebearers attached to the crime of betraying one's country. The penalty for murder was death; for treason death with vengeance.

Today our law permits the life of a traitor to be spared.

(43 R. 5856) As it has been truly said: "It is the essence of treachery that those who commit it would still be severely punished if the law forgot its duty to provide deterrents to crime and did not lay a finger on them." (West, The Meaning of Treason, p. 229 (1947).)

If the defendant were to go from this Court a free man, he would be condemned to live out his life in bitter scorn of himself. Haunting him to the end of his days would be the memory not only of his base treason against the land of his birth, but also of Sadao Munimori who won the Congressional Medal of Honor; of Privates First Class, Fumitaka Nagato and Saburo Tanamachi, who are buried with the American heroes of all time at Arlington National Cemetery; and the memory of almost seven hundred other boys of like American birthright, of like Japanese parentage, who stood the supreme test of loyalty to their native land, and gave up their lives that America and her institutions might continue to live.

These thoughts and others * * * must tell the defendant that his life, if spared, would not be worth living. Considering the inherent nature of treason and the purpose of the law in imposing punishment for the crime, reflection leads to the conclusion that the only worth-while use for the life of a traitor, such as this defendant has proved himself to be, is to serve as an example of those of weak moral fibre who may

(43 R. 5857) hereafter be tempted to commit treason against the United States.

It is the judgment of the Court, Tomoya Kawakita, that for the offense of treason against the United States of which you stand convicted by unanimous verdict by the jury, you, Tomoya Kawakita, shall suffer the penalty of death as prescribed by Section 1 of Title 18 of the United States Code, now 18 U.S.C.A. § 2381, at a time and place hereafter to be fixed by the Court in the Warrant of Execution.

It is further adjudged that, as directed by the provisions of Section 3566 of Title 18 of [*861] the United States Code, formerly 18 U.S.C.A. § 542, the judgment and sentence of death now imposed for the offense of treason against the United States shall be executed, and the penalty of death inflicted, by the administration of lethal gas to you, Tomoya Kawakita, in the manner prescribed by the laws of the State of California for that purpose, until you, Tomoya Kawakita, are dead.

It is further adjudged that you, Tomoya Kawakita, be now committed to the custody of the Attorney General of the United States and the United States Marshal for the Southern District of California as his authorized representative, for execution of this judgment and sentence of death as provided by Section 3566 of Title 18 of the United States Code, formerly 18 U.S.C.A. § 542. And may Almighty God have mercy on your soul.

1 For full text of instructions, see 96 F.Supp. 837.

2 For form of special verdict, see 96 F.Supp. 851.

3 For Aug. 26, 1948 proceedings, see 96 F.Supp. 852.

4 For Aug. 28, 1948 proceedings, see 96 F.Supp. 853.

5 For Aug. 30, 1948 proceedings, see 96 F.Supp. 853.

6 See post, p. 857.

7 For Aug. 31, 1948 proceedings, see 46 F.Supp. 857.

8 For proceedings upon pronouncement of sentence, see 96 F.Supp. 859.

TOMOYA KAWAKITA v. UNITED STATES

[ Version 2 ]

No. 12061

UNITED STATES COURT OF APPEALS, NINTH CIRCUIT

190 F.2d 506; 1951 U.S. App. LEXIS 2453

June 22, 1951

PRIOR HISTORY: See 96 F. Supp. 824 (S.D. Cal. 1950)

SUBSEQUENT HISTORY: Affirmed, 343 U.S. 717 (1952); the sentence was commuted to life imprisonment by Presidential proclamation on Oct. 29, 1953; Kawakita was pardoned on Oct. 24, 1963 under condition of perpetual exile, having lost his American nationality by reason of conviction for treason.

COUNSEL: [**1] Morris Lavine, Los Angeles, Cal., for appellant.

Ernest A. Tolin, U.S. Atty., Norman W. Neukom, Robert J. Kelleher and Jack E. Hildreth, Asst. U.S. Attys., all of Los Angeles, Cal., for appellee.

JUDGES: Before STEPHENS, BONE and ORR, Circuit Judges.

OPINION BY: STEPHENS

OPINION: [*507]

STEPHENS, Circuit Judge.

Tomoya Kawakita appeals from a judgment of conviction and a sentence of death imposed after a United States District Court jury returned a verdict finding him guilty of treason against the United States of America. 13)

I.

Appellant was born in Calexico, California, on September 26, 1921, of Japanese-born parents who were nationals of Japan. By virtue of his birth appellant was a citizen of the United States. United States Constitution, Amend. XIV, Sec. 1; United States v. Wong Kim Ark, 1898, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890. By virtue of the nationality of his parents appellant was at birth a national of Japan. Kiyoshi Hirabayashi v. United States, 1942, 320 U.S. 81, 97, 63 S.Ct. 1375, 87 L.Ed. 1774.

In 1939, at the age of 17, appellant applied for and was issued a passport and, with his father, went to visit his [**2] grandfather in Japan. The father returned to the United States but the son remained in Japan and attended a preparatory school [*508] for "Niseis", or persons born in the United States of Japanese parents. In March, 1941, appellant entered Meiji University in Japan where he took a course in commerce and also received military training. In April, 1941, he renewed his passport. Although war broke out between Japan and the United States in December, 1941, he remained at the University, completed his course of study and graduated. Although of military age and, so far as the record goes, physically fit, at no time did he enter or serve in the armed forces of Japan and there is nothing in the record to indicate that he tried to enter the armed forces or that the Japanese government did anything toward bringing him into its armed forces. While at the University he was registered as a foreigner or alien at the local police station. In 1943, through his uncle Yazaemon Kawakita, he applied for and received permission as of March 8, 1943, to have his name entered in the family register, or "koseki tohon".

Upon graduation from the University, appellant requested assistance [**3] from one Takeo Miki, a member of the Japanese House of Representatives. Miki, a friend of the father's, had been furnishing appellant with financial assistance during his schooling. Miki assisted in obtaining employment for appellant as an interpreter with the Oeyama Nickel Industry Company, Ltd., n1 the employment beginning in August, 1943, and continuing until after the surrender by Japan on August 10, 1945.

The company with which appellant was employed was a private corporation, engaged in mining, milling, producing and processing metals for munitions and for other uses. Adjoining the factory, located at Oeyama in Kyoto Province on the west side of the Japanese Island of Honshu, was a prisoner-of-war camp, supervised and directed by Japanese military personnel. About ten or twelve miles from the prisoner-of-war camp was a surface mine where the prisoners-of-war were required to work from time to time. Medical attention was furnished the prisoners by a British and an American Army doctor, both prisoners-of-war, in a barracks set aside as a "hospital". Appellant began his employment in the camp in August of 1943, and shortly thereafter British and Canadian prisoners-of-war [**4] arrived. His duties consisted of interpreting between the British and Canadian prisoners-of-war and the Japanese military foreman in charge of the camp.

In 1944 and early in 1945, approximately four hundred American prisoners-of-war arrived at the camp. These consisted primarily of men who had been captured on Bataan early in 1942. As a result of approximately two and one-half years of inadequate diet, confinement and hard work, all of the Americans were underweight and were suffering from malnutrition and a variety of other ailments.

The work done at the mine by the American prisoners consisted of digging nickel ore from the face of the mountain side, and loading it onto cars which were emptied into hoppers. The prisoners also performed other general labor in the mine area, including such duty as carrying logs to be used for construction and maintenance work.

The overt acts upon which the treason charges in the indictment are based were alleged to have occurred during the period from August 8, 1944, up to and including August 24, 1945.

After the Japanese surrender on August 10, 1945, the camp was turned over to the Americans. Thereafter it appears that Kawakita [**5] performed some service for the Americans, being of assistance particularly because of his knowledge of the English language. While he remained in Japan during the post-war period he was not charged with having committed any acts of treason.

In December of 1945, appellant went to the United States consul in Yokohama to inquire about his United States citizenship: There he made an "Application for Registration", in which he stated that he was a United States citizen, that he had not been naturalized as a citizen of a foreign state [*509] and that he had not taken an oath of allegiance to a foreign state. Before a foreign service officer he swore allegiance to the United States.

On the same date he signed a document entitled "Affidavit by Native American to Explain Protracted Foreign Residence" in which he stated: That he had come to Japan to study Japanese; had graduated from Meiji University; that he possessed "dual nationality", Japanese as well as American from birth, but that his name was not entered in his uncle's census register until March 8, 1943.

The foreign service officer who took appellant's affidavit concluded that " * * * He has presented evidence [**6] deemed satisfactory to overcome presumption of expatriation." We set out the officer's findings of fact in the margin. n2

On June 19, 1946, appellant applied for a United States passport and again took an oath of allegiance to the United States. He also swore to an "Affidavit to Overcome Presumption of Expatriation", in which he stated that his reason for foreign residence since his registration on December 31, 1945, was to await transportation to the United States. He affirmed that since January 13, 1941, he had not entered, or served in, the armed forces of any foreign state and that he had not accepted or performed the duties of any office, post, or employment under the government of any foreign state or political subdivision thereof for which only nationals of such state were eligible.

He was issued a United States passport on June 20, 1946, and departed Japan on or about August 2 or 3, 1946, enroute to the United States.

On his return to the United States appellant went to live with his father in Los Angeles, California, where he enrolled at the University of Southern California as a student.

In October, 1946, he visited a store in Los Angeles, and William [**7] Bruce, who had been a prisoner-of-war at Oeyama, in the store at the time, recognized appellant as one who had served the Japanese at the camp, and reported that fact to the authorities.

On June 5, 1947, appellant was arrested by an agent of the Federal Bureau of Investigation in Los Angeles and arraigned before a Commissioner on the same day. An indictment charging him with treason was returned by the United States Grand Jury on June 11, 1947, to the United States District Court for the Southern District of California. n3 Fifteen overt acts of treason [*510] were charged. The text of those found to have been committed is set out in the margin. n4 We briefly relate them further on in this opinion.

[*511] Kawakita entered a plea of "Not Guilty" to all of the charges made.

The trial began on June 18, 1948. The jury n5 retired to deliberate on August 25, 1948. After deliberations began, the court received numerous communications from the jury to the effect that no unanimous verdict could be reached together with requests that the jury be discharged. The jury was requested to continue deliberations. On September 2, 1948, the jury returned a general verdict [**8] of guilty and special verdicts of guilty as to overt acts (a), (b), (c), (d), (g), (i), (j), (k). The jury was unable to reach a unanimous verdict as to overt acts (e), (f), (h), (l) and (o). Allegations as to overt acts (m) and (n) were withdrawn by the Government.

The trial judge imposed the death sentence.

II.

Did Kawakita Owe Allegiance to The United States?

The definition of treason is a part of the supreme law of the land. United States Constitution, Article III, Sec. 3, provides: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. * * * "

Title 18 U.S.C.A. § 1, Act of March 4, 1909, c. 321, Sec. 1, 35 Stat. 1088, as it stood at the time of the alleged overt acts, provided: n6 "Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason."

By definition, the crime of treason can only be committed by one owing allegiance to the United States. It is appellant's contention that at the time the acts charged in the [**9] indictment were committed, he did not owe allegiance to the United States because, as a dual American and Japanese citizen, he owed allegiance to Japan alone while in that country. According to appellant's reasoning, in his brief, under his dual citizenship he could adhere to the enemy and give it aid and comfort while in the enemy country with impunity. As we shall presently show, dual citizenship does nothing to relieve an American citizen of his citizenship obligations. An American citizen retains that status until expatriated under American law and he is subject to trial and punishment for treason. It is also contended that, having been a Japanese national from birth, Kawakita's act of registration in the family census register, and his other activities during the war, amounted to expatriation from United States citizenship.

Expatriation is the voluntary renunciation or abandonment of nationality and allegiance. Perkins v. Elg, 1939, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. In order to be relieved of the duties of allegiance, consent of the sovereign is required. Mackenzie v. Hare, 1915, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297. [**10] Congress has provided that the right of expatriation is a natural and inherent right of all [*512] people, n7 and has further made a legislative declaration as to what acts shall amount to an exercise of such right. n8 The enumerated methods set out in the chapter are expressly [*513] made the sole means of expatriation. n9

The jury was instructed on the applicable law of expatriation and that if appellant were no longer a citizen of the United States he could not be found guilty of treason. The court went further and instructed the jury that if it found appellant believed he was not a United States citizen it should acquit as intent would then be lacking. The verdict indicates that all of these issues were resolved against appellant.

The contention that a conviction of treason must be reversed because the accused did not owe allegiance to the United States was made in Gillars v. United States, D.C. Cir., 1950, 182 F.2d 962. There, defendant was convicted of treason against the United States, committed while in Germany during World War II, for conduct consisting of taking part in psychological warfare against the United States through participating [**11] in the recording of radio drama. The argument was advanced, inter alia, that defendant had signed an oath or affirmation of allegiance to Germany, and that this brought about a dissolution of her citizenship and allegiance to the United States. It was held that the trial court did not err in instructing the jury that the statement being vague and informal, it did not come within the purview of Section 401 of the Nationality Act of 1940, Title 8 U.S.C.A. § 801(b).

Litigation on questions of expatriation usually occur in a different setting. The "citizen" is usually seeking to assert that his citizenship was not lost by some act which is alleged to amount to expatriation. In Mackenzie v. Hare, supra, plaintiff in error contended that an act of Congress which provided that any American woman who married a foreigner should take the nationality of her husband, did not operate to deprive her of her United States citizenship on marriage to a subject of Great Britain since, if so intended, it was beyond the authority of Congress. The Supreme Court there stated that it should hesitate long before limiting or embarrassing such an attribute [**12] of sovereignty. While it was conceded that a change in citizenship could not be arbitrarily imposed, without the concurrence of the citizen, it was held that the law in question did not have that feature, since it dealt with a condition voluntarily entered into.

In Perkins v. Elg, supra, Marie Elizabeth Elg, who was born in the United States of parents who were natives of Sweden, was taken by her mother to Sweden while still a minor. Shortly after attaining majority, she returned to the United States on an American passport, and was admitted as a citizen. Later, on being threatened with deportation, she sought a declaratory judgment to establish United States citizenship. In holding that United States citizenship was not lost, the Supreme Court stated 307 U.S. at page 329, 59 S.Ct.at page 887, 83 L.Ed. 1320: " * * * As municipal law determines how citizenship may be acquired, it follows that persons may have a dual nationality. And the mere fact that the plaintiff may have acquired Swedish citizenship by virtue of the operation of Swedish law, on the resumption of that citizenship by her parents, does not compel the conclusion that she [**13] has lost her own citizenship acquired under our law. As at birth she became a citizen of the United States, that citizenship must be deemed to continue unless she has been deprived of it through the operation of a treaty or congressional enactment or by her voluntary action in conformity with applicable legal principles * * * ."

This quotation indicates three ways by which, at the time it was written, expatriation [*514] or loss of citizenship could occur: (1) through operation of a treaty; (2) through congressional enactment; (3) through voluntary action in conformity with applicable legal principles.

It is not contended nor are we aware of any treaty between Japan and the United States which would have application to States which would have application to this particular issue. See Title 8 U.S.C.A. § 810. The reference to a third means of expatriation is foreclosed by the provision in the Nationality Act of 1940, enacted since Perkins v. Elg was written, providing that the means therein provided shall be exclusive. See Title 8 U.S.C.A. § 808, set out in footnote 9, supra. Thus, Kawakita's alleged loss of United [**14] States citizenship could only be claimed by virtue of some free and voluntary act on his part which, by the Congressional Act, would be ground for expatriation.

In Savorgnam v. United States, 1950, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287, it was held that a native born American citizen who voluntarily obtained Italian citizenship through naturalization in accordance with Italian law, had expatriated herself under the laws of the United States, but acts which would seemingly expatriate under the Nationality Act of 1940 have been held not to have such effect where the element of duress or lack of free choice existed. In Acheson v. Murakami, 9 Cir., 1949, 176 F.2d 953, we upheld a citizenship by American born persons of Japanese descent, made while they were incarcerated pursuant to civilian exclusion orders issued during World War II. See Kiyoshi Hirabayashi v. United States, 1942, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774. The renunciations not being given as a result of free and intelligent choice, but rather because of mental fear, intimidation and coercion, they were held void and of no effect. See Attorney General of the United States v. Ricketts, 9 Cir., 1947, 165 F.2d 193. [**15]

Voting in a Japanese election, and service in the Japanese army, acts falling within paragraphs (c) and (e) of Section 401 of the Nationality Act of 1940, n10 have been held not to expatriate where the acts were done under duress. Hatsuye Ouye v. Acheson, D.C. Hawaii, 1950, 91 F.Supp. 129; Etsuko Arikawa v. Acheson, D.C. Cal. 1949, 83 F.Supp. 473; Yoshiro Shibata v. Acheson, D.C. 1292 * 15 Cal. 1949, 86 F.Supp. 1; see In re Gogal, D.C. Penn. 1947, 75 F.Supp. 268.

Meiji Fujizawa, who testified at the appellant's trial, was a childhood friend of the appellant. Though his case closely parallels Kawakita's in some instances there are differences. Fujizawa was born in Imperial County, California, of parents who were born in Japan, and following his graduation from high school in 1939, went to Japan to further his education. Prior to leaving the United States he officially renounced his Japanese nationality. He, like Kawakita, attended Meiji University and graduated in September, 1943. When the war came on, funds from his parents in the United States ceased and he was required to find employment. He was informed that he [**16] could secure no employment unless he recovered his Japanese nationality. He made application for such recovery and upon its being granted, had his name entered upon the Family Register. He then procured employment as an interpreter at the Oeyama Nickel Industry Company, Ltd., where he remained until V-J day. Unlike Kawakita, it appears that Fujizawa assisted the American prisoners in many ways by obtaining for them medical supplies and food.

In 1947 Fujizawa applied to the United States consulate in Japan to be reinstated as a United States citizen, and his application being denied, he brought an action in the United States district court to establish his claim to United States citizenship. The government contended that Fujizawa lost his United States citizenship since his petition for restoration of Japanese citizenship was " * * * Obtaining naturalization in a foreign state * * * ", within the meaning of Section 801(a), of Title 8 U.S.C.A. The district court, stressing the principle that acts on their faces tending toward expatriation must be free and voluntary, held that Fujizawa had no [*515] intent to renounce his United States citizenship. Meiji Fujizawa v. Acheson, D.C. Cal. 1949, 85 F.Supp. 674. [**17] There was no appeal. There is nothing in the Fujizawa case which supports the theory that Kawakita's act of entering his name on the Family Register accomplished his expatriation. The evidence is quite clear that he had no thought that it did either when he acted to have his name entered or afterwards. In leaving the country of his birth, Kawakita's purpose was to visit his aged grandfather in Japan. There he remained to prepare himself for the export-import business in the United States. After entering the University in Japan, he again swore allegiance to the United States when he renewed his United States passport in 1941, and claimed citizenship in the United States when the war was over.

We hold that there was evidence in the case justifying the jury finding that Kawakita was a citizen of the United States owing allegiance to the United States during the period in suit. n11

III.

Did Kawakita Adhere to the Enemy?

Kawakita is not charged with levying war against the United States. The acts found to have been committed are said to be acts showing adherence to the enemy, giving them aid and comfort.

In Cramer v. United States, 1944, 325 U.S. 1, at page 28, 65 S.Ct. 918, 932, 89 L.Ed. 1441, [**18] the court stated: "Reason of adherence to an enemy was old in the law. It consisted of breaking allegiance to one's own king by forming an attachment to his enemy. Its scope was comprehensive, its requirements indeterminate. It might be predicated on intellectual or emotional sympathy with the foe, or merely lack of zeal in the cause of one's own country. That was not the kind of disloyalty the framers through should constitute treason. They promptly accepted the proposal to restrict it to cases where also there was conduct which was "giving them aid and comfort".

"Thus the crime of treason consists of two elements: adherence to the enemy; and rendering him aid and comfort. A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country's policy or interest, but so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions which do aid and comfort the enemy -- making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and [**19] diminish our strength -- but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason."

Intent to adhere to the enemy is required in treason. This element of the crime, since it concerns state of mind, is not subject to the two-witness requirement. Cramer v. United States, supra 325 U.S. at page 31, 65 S.Ct.at page 933. Where the overt act charged is of an equivocal or innocent nature in itself, as in the Cramer and Haupt n12 cases, other compelling evidence is required in order to make out the intent to betray. Where, however, as here, the acts found to have been committed are themselves of such a nature as to give rise to strong inferences of a disloyal state of mind, the problem is less difficult. And there is, in addition, the testimony of witnesses introduced by the Government of various statements made by Kawakita as indicative of his state of mind. We set them out in the footnote. n13 [*516] They constitute compelling evidence that appellant's act sprang from a harbored intent to betray his native country.

IV.

Did Kawakita Give Aid and Comfort To the Enemy?

The giving of aid and comfort may [**20] be defined as conduct or an act which strengthens or tends to strengthen the enemy of the United States and which weakens or tends to weaken the power of the United States to resist or to attack its enemies. Cramer v. United States, supra, 325 U.S. at pages 28, 29, 65 S.Ct.at pages 931, 932, 89 L.Ed. 1441. The minimum function of the overt act is that it show action by the accused which really gave aid [*517] and comfort to the enemy. Cramer v. United States, supra 325 U.S. at page 34, 65 S.Ct.at page 934.

We turn to cases, with World War II for their background, to test the sufficiency of the overt act found to have been committed in our case. The earlier cases are referred to in the footnote. n14

In Stephan v. United States, 6 Cir., 1943, 133 F.2d 87, certiorari denied 318 U.S. [*518] 781, 63 S.Ct. 858, 87 L.Ed. 1148, rehearing denied 319 U.S. 783, 63 S.Ct. 1172, 87 L.Ed. 1727, the indictment which charged the defendant, inter alia, with receiving, furnishing hospitality and entertainment, money, necessities of life to an escaped German prisoner of war, concealing his identity, arranging for his transportation [**21] and failing to report him to officials, all in the United States, was held sufficient to charge the defendant with the crime of treason.

Cramer v. United States, supra, was the first occasion on which the Supreme Court reviewed a conviction of treason. Overt acts consisting of meeting and conferring with two Germans who had landed on the shores of the United States for the purpose of sabotage were held to be insufficient as proved to support the judgment of conviction.

But in Haupt v. United States, supra, the Supreme Court held that overt acts consisting of furnishing harbor and shelter, assisting in obtaining employment and helping to buy an automobile, all for defendant's son who was in the United States on a mission of sabotage for Germany, were sufficient overt acts to sustain a conviction of treason. "They have the unmistakable quality", the court stated 330 U.S. at page 635, 67 S.Ct. at page 876, 91 L.Ed. 1145, "which was found lacking in the Cramer case of forwarding the saboteur in his mission."

Chandler v. United States, 1948, 1 Cir., 171 F.2d 921, certiorari denied 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081, [**22] rehearing denied, 336 U.S. 947, 69 S.Ct. 809, 93 L.Ed. 1103; United States v. Burgman, D.C.D.C., 1949, 87 F.Supp. 568; Gillars v. United States, C.A.D.C., 1950, 182 F.2d 962, and Best v. United States, 1 Cir., 1950, 184 F.2d 131, all involved acts of broadcasting German propaganda to the United States in the hope of weakening the United States" war effort by sowing discontent with the government, impairing the morale of the armed forces, and creating dissension among the allied countries. Convictions were had in all of these cases.

Since the jury returned a special verdict as to each overt act found to have [*519] been committed, the conviction must be sustained if there was a single sufficient well-proved overt act committed by Kawakita, Haupt v. United States, supra, 330 U.S. at page 641, 67 S.Ct.at page 878, 91 L.Ed. 1145; Chandler v. United States, supra.

Overt act labeled (b) in the indictment, on which the jury returned a verdict of "guilty", consisted of participation in knocking an American prisoner of war into the camp drain or cesspool, and striking and beating him as he attempted to [**23] get out. Much is made of the fact that this treatment was administered as punishment for the infraction of camp rules, namely, for extracting needed food from Red Cross packages sent for but withheld from him in a storehouse. It is true that the convention relating to prisoners of war signed at Geneva, July 27, 1929, provides that prisoners of war shall be subject to the laws, regulations, and orders in force in the armies of the detaining power. n15 Sec. V, Chap. 3, Article 45. The same agreement provides, however, that punishments other than those provided for the same acts for soldiers of the national armies may not be imposed. Any corporal punishment, any form of cruelty, is forbidden. Sec. V, Chap. 3, Article 46.

For reasons stated below, we hold that the jury could reasonably find that this act alone, in its setting, amounted to aid and comfort to the enemy.

Our review is not limited to a finding of the sufficiency of a single act. Our discussion applies with comparative force to each of the overt acts upon which the jury returned its verdict of guilty: the brutal kicking of Phillip D. Toland in an attempt to compel him to greater exertion in his work (overt [**24] act (a)); the beatings inflicted upon prisoners for using blankets to make crude socks and mittens as protection against the extreme winter weather prevailing at Oeyama (overt act (c)); the beating of Thomas J. O'Connor to the point of insensibility (overt act (d)); forcing David R. Carrier and George W. Simpson to run additional times around the camp quadrangle while in a weakened condition to the point of exhaustion (overt act (g)); the denial of medical care to Johnie T. Carter who lay helpless and in pain from a spinal injury received in the course of his enforced labors (overt act (i)); the beating of John J. Armellino who, because of illness, was unable to carry the required load (overt act (j)); participation in inflicting inhuman punishment on Woodrow T. Shaffer (overt act (k)). These deeds do not indicate reluctant conformity by one who by circumstance finds himself in the camp of the enemy. Separately and cumulatively they reflect the purposeful fulfillment of a desire to give as much aid and comfort to the enemy as was possible in the setting, and indicate a state of mind in keeping with the crime charged.

We are mindful of the fact that appellant was not [**25] in a policy-making position. However he is not here charged with vicarious liability for the manner in which the prisoner of war camp was conducted. His conduct consisted of personally, and beyond the duty of his employment, willingly assisting the Japanese military in administering cruel and unusual treatment upon weakened United States prisoners of war. The evidence reveals that he enthusiastically deviated from his duties as interpreter in order to participate in the drastic treatment imposed upon the Americans for minor infractions of camp discipline. [*520] Appellant's own testimony supports the conclusion that he did not act from personal animosity, but was manifesting his attitude toward the country to which he owed allegiance. These acts amounted to as much aid and comfort to Japan as the appellant was able to give in the circumstances, and, through their effect on the prisoners of war at the camp, furthered the Japanese war effort by coercing greater effort toward extracting war-needed ore from the mine. The overt act essential in the crime of treason is present if the act is intended to and does afford aid and comfort to the enemy within the circumstances. [**26] Haupt v. United States, supra. The fact that the acts committed by appellant were not of a nature to be decisive of the war or of such a nature as to, in themselves, turn the tide of war, does not cast them as untreasonable.

V.

Was the Two-Witness Requirement Satisfied?

The constitution of the United States requires that " * * * No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court". n16

We hold that there was presented the required testimony of two witnesses to the overt act labeled (b) in the indictment. While there is some understandable uncertainty as to the exact date, there is little question about the exact occasion and as to the conduct of Kawakita on that occasion.

The indictment charged that the act took place during the latter part of April, 1945, with the exact date unknown. The Constitutional requirement was fulfilled by the following testimony:

Witness John L. McCoy recalled that in "April or May", 1945, he returned to camp with a working party and saw Grant standing in the cesspool. He stated, "Kawakita was standing on the side of the pool hitting Grant [**27] on the head when I saw him, and telling him to duck. Grant looked like he was stunned. He didn't seem to understand. He just stood there and shivered and Kawakita hit him repeatedly on the head."

Witness Phillip D. Toland stated that "around the month of May", 1945, at suppertime he "saw Kawakita pushing Grant's head into the water with the long wooden stick he had."

Witness James T. Phillips testified that "Sometime in May of June", 1945, about 4:30 or 5:00 in the evening, he was Kawakita strike Grant about three times and push him into the cesspool with a "wooden sword".

Witness James A. Caire recalled that in May, 1945, in the afternoon at about 4:00 o'clock, he saw the defendant hit Grant knocking him into the cesspool, and that he was made to stay there by Kawakita, using a "wooden sword".

Witness Morton Feinberg testified that sometime in April of 1945, in the afternoon, in the middle of May, 1945, he saw Kawakita strike Grant three or four times in the cesspool, with a bamboo pole.

Witness Gid H. Spurlock testified that around in April, 1945, he observed Grant trying to get out of the water in the cesspool, and Kawakita pushed him back with his "saber". [**28] , Witness Alexander Holik testified that in April, 1945, between 5:00 and 7:00 in the evening he saw Kawakita shove Grant into the cesspool and swing his saber at him a couple of times.

[*521] Witness Woodrow T. Shaffer testified that in the latter part of April, 1945, he saw Kawakita strike Grant and knock him into the cesspool, and strike him with a stick when he refused to submerge.

Witness David Huddle testified that in April, 1945, around 4:30 or 5:00 o'clock in the afternoon he saw Kawakita hitting Grant over the head with a wooden sword while Grant was in the cesspool.

It would unduly and uselessly lengthen this opinion to set out the testimony of each witness to each overt act found to have been committed. We have carefully studied the testimony from the long record and find a plurality of witnesses to each of the alleged overt acts which the jury found to have been committed by appellant.

VI.

Was There Impropriety In the Jury Proceedings?

Appellant makes numerous contentions of error committed in the jury proceedings. It is contended that the jury was coerced; that the court erred in the instructions given while the jury was deliberating; that [**29] the jury separated while deliberating. We set out relevant portions of the jury proceedings in the footnote. n17

[*522] The issue of coercion of the jury in the manner claimed is one which was received numerous and varied treatment in the federal courts, but reasonably clear principles evolve from the decisions. In Allen v. United States, 1896, 164 U.S. 492, 17 S.Ct. [*523] 154, 41 L.Ed. 528, it was urged that certain instructions given to the jury after the main charge was delivered, and when the jury had returned to the court for further instructions, were error. These instructions were in substance: That in a [*524] large proportion of cases absolute certainty could not be expected; that although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with [*525] candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other's arguments; that, [*526] [**30] if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.

It was held that there was no error in these instructions. The court stated 164 U.S. at page 501, 17 S.Ct.at page 157: "While, undoubtedly, the verdict of the juror should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury room. The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments, and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury room with a blind [**31] determination that the verdict shall represent his opinion of the case at that moment, or that he should close his ears to the arguments of men who are equally honest and intelligent as himself * * * ." See Burton v. United States, 1905, 196 U.S. 283, 25 S.Ct. 243, 49 L.Ed. 482; Allis v. United States, 1894, 155 U.S. 117, 15 S.Ct. 36, 39 L.Ed. 91.

Appellant relies strongly on Bollenbach v. United States, 1946, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350. In that case a conviction was reversed because on inquiry from the jury, the trial judge gave an instruction which stated the substantive law involved incorrectly. That question is not presented in this case. Nor are we faced with the problem presented in Brasfield v. United States, 1926, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345, where the court held that an inquiry by the trial judge to a jury unable to agree, asking the extent of its division numerically, was ground for reversal, its tendency being coercive. The trial judge in the case before us cautioned the jury repeatedly against revealing their numerical division.

In Hyde v. United States, 1912, 225 U.S. 347, 382, 32 S.Ct. 793, 807, 56 L.Ed. 1114, [**32] it was contended that the verdict was a result of coercion by the court. The jury had returned to the courtroom and the foreman had announced that they were unable to agree. The court instructed the jury to retire for further deliberation, and made another effort to agree upon a verdict, charging them: " * * * that should they render a verdict, it must be one to which they all freely agreed; that the law would not recognize a coerced verdict or one which was not the free expression of the views and opinions of the jurymen, and that if, after another conscientious effort, the jury still fail to agree, they should return to the court and so state. That it was not the purpose of the court to unduly prolong their deliberations, and that if they could not conscientiously and freely agree upon a verdict, they would be discharged."

Several hours later they were brought into court and again declared they were unable to agree, and the court instructed them [*527] further, after consultation with counsel, suggesting a consideration of the possibility of the guilt of some of the defendants and not of others. A short time later, the jury returned a verdict of guilty as [**33] to certain of defendants and not guilty as to others.

The Supreme Court rejected the contention that the jury was coerced by the court. The court stated 225 U.S. at page 383, 32 S.Ct.at page 808:

" * * * It is true the trial was a long one and that the jury were not allowed to separate. Neither fact is unusual in criminal trials; the first is often necessary, the second often expedient, and contributes to an impartial judgment for an against defendants. It is true that the jury was in consultation for three days and nights without agreement, but the case was unusual in its issues and evidence and the detailed attention that was required.

"It well might be that jurors should not see the exact bearing of the evidence as it affected particular defendants until the final instructions of the court, which we have set out and about which counsel were consulted. The court took care to say to the jury that the law would not recognize a coerced verdict, and that it was not the court's intention to unduly prolong their deliberations, and if, after another effort, "they could not conscientiously and freely agree upon a verdict, they would be discharged." It is hard to believe [**34] that with that admonition yet in their ears they bartered their convictions, with that promise expressly made to them, they were coerced by a threat of confinement to acquit those who they were convinced were guilty, or convict those who they were convinced were innocent."

In United States v. Haupt, 7 Cir., 1946, 152 F.2d 771, 779, a conviction of treason was attacked because the jury deliberated 28 hours without sleep. The judgment was affirmed. It was held that the case was one which necessitated extended deliberation of the jury, considering the length of the trial, the number of issues, the seriousness of the offense, and the responsibility of each juror. The Supreme Court dismissed the same contention in a sentence. Haupt v. United States, 1946, 330 U.S. 631, 643, 67 S.Ct. 874, 91 L.Ed. 1145, rehearing denied 331 U.S. 864 n18 , 67 S.Ct. 1195, 91 1292 * 34 L.Ed. 1869.

While there is language in Peterson v. United States, 9 Cir., 1914, 213 F. 920, which seems to support the appellant, the import of the language there used is fully explained in our later expression in Shea v. United States, 9 Cir., 1919, 260 F. 807, [**35] which reviews the Supreme Court decisions more fully.

The contested instructions were not coercive in effect. They were given on Monday, August 30, 1948. The final words of the trial court on this occasion were that no juror was expected to surrender his honest convictions if, after full deliberation and attention to the views of his or her fellow jurors, he or she remained convinced of the correctness of his stand. The verdict was not rendered until 3:45 P.M. on Thursday, September 2, 1948. The jury agreement after three days had elapsed following the final instruction to the jury, as it seems to us, was because the jurors came to agreement after the storms of personality clashes had been cleared away by the presiding judge. No complaint was made nor was any indication given to the effect that personal differences occurred during this period. It is far more likely that the earnest and thorough talk to the jury by the judge [*528] impressed the members with their duties to eliminate personal conflict of temperament and weigh the evidence in the cold scale of impersonal logic. Had the judge deviated in but a comparatively small degree from a plain and unimpassioned [**36] appeal to the jury members to eliminate personal antagonisms and get down to earnest consideration of the evidence and the instructions, a strong case would have been made on this assignment of error. We do not underestimate the strength of the argument made on this assignment. But there is nothing tangible in the record to override the presumption that the verdict returned was the result of honest and conscientious agreement of twelve minds. The proceedings speak eloquently of the clash of strong, unappeasing minds at work on a decision which required the closest adherence to "The Still, Small Voice Within". We do not regard the lapse of time as decisive in the case.

There was no improper separation of the jury during the trial. The purpose of keeping a jury in one body during the trial and not permitting the members to separate except under the supervision of the bailiff or officers of the court, is to make sure that nothing shall influence them in the consideration of the case. Baker v. Hudspeth, 10 Cir., 1942, 129 F.2d 779, certiorari denied Baker v. U.S., 312 U.S. 692, 61 S.Ct. 711, 85 L.Ed. 1128, rehearing denied 312 U.S. 715, 61 S.Ct. 731, 85 L.Ed. 1145. [**37] The fact that a juror was permitted to go to the barber shop under the supervision of a bailiff, and that other jurors were permitted to see a doctor under supervision of a bailiff does not give rise to a finding that the jurors were subjected to prejudicial influence. Allowing jurors to maintain reasonable standards of health and cleanliness under court supervision is a necessary adjunct of the jury system.

So far as the record discloses, the conduct of the court and its rulings on the trial were fair and considerate of the rights of the defendant. In none of the matters referred to do we find error.

VII.

Was the Punishment Excessive?

Title 18 U.S.C.A. 2, Act of March 4, 1909, c. 321, Sec. 2, 35 Stat. 1088, provided: n19 "Whoever is convicted of treason shall suffer death; or, at the discretion of the court, shall be imprisoned not less than five years and fined not less than $ 10,000, to be levied on and collected out of any or all of his property, real and personal, of which he was the owner at the time of committing such treason, any sale or conveyance to the contrary notwithstanding; and every person so convicted of treason shall, moreover, [**38] be incapable of holding any office under the United States."

The appellant contends that the sentence imposed is arbitrary. We think not. So long as it is within the limits prescribed by the statute it is not legally excessive. Vlassis v. United States, 9 Cir., 1925, 3 F.2d 905. No legal error is committed in imposing a severe sentence so long as it does not exceed the maximum set by statute. Cardenti v. United States, 9 Cir., 1928, 24 F.2d 782. Consult Stephan v. United States, 6 Cir., 1943, 133 F.2d 87, certiorari denied 318 U.S. 781, 63 S.Ct. 858, 87 L.Ed. 1148, stay of execution ordered, 318 U.S. 746, 63 S.Ct. 984, rehearing denied 319 U.S. 783, 63 S.Ct. 1172, 87 L.Ed. 1727, execution ordered D.C., 50 F.Supp. 738; Capone v. United States, 7 Cir., 1931, 51 F.2d 609, 76 A.L.R. 1534, certiorari denied 284 U.S. 669, 52 S.Ct. 44, 76 L.Ed. 566; Cochran v. United States, 8 Cir., 1930, 41 F.2d 193; Muench v. United States, 8 Cir., 1938, 96 F.2d 332; United States v. Sorcey, 7 Cir., 1945, 151 F.2d 899, 902, [**39] certiorari denied 327 U.S. 794, 66 S.Ct. 821, 90 L.Ed. 1021. We hold that the record is free from reversible error.

The author of this opinion having immersed himself in the long record of this case feels it proper for himself alone to say that the trial proceedings reflect credit upon the trial judge and all of the attorneys for both the government and the defendant-appellant. A special word of commendation is due the attorney for defendant-appellant [*529] who with inadequate compensation and in the interests of justice spared no effort or time on behalf of his client.

The judgment is affirmed.

On Rehearing.

PER CURIAM

After a re-examination of the evidence in this capital punishment case and after a renewed study of the applicable authorities in the light of appellant's comprehensive petition for a rehearing, we do not find good cause for the granting of such petition. Accordingly, the petition for a rehearing is hereby denied.

Footnotes

n1. Also referred to in the indictment as "Nippon Yakin Kogyo Kabushiki Kaisha", or "Nippon Metallurgical Industry Co., Ltd." or "the company." [**40]

n2. "He came to Japan in 1939, aged 18, for educational purposes, and upon completion of his schooling here was unable to return to his family in the U.S. because of the war. He now desires to return as soon as transportation is available. In view of these facts it is believed that he has satisfactorily explained his protracted foreign residence.

"Inasmuch as he was born prior to 1924 and has never divested himself of Japanese nationality he has had dual nationality from birth. In 1943 his possession of Japanese nationality was made a matter of record by the entry of his name into his uncle's Family Census Register. He states that this action was taken under severe pressure by the Japanese police and by his uncle, on whom he was financially dependent after his supply of funds from the U.S. was cut off; this office has reason to believe this statement.

"In the opinion of this office he has not actively collaborated with the enemy nor engaged in activities inimical to the best interests of the U.S. beyond the minimum necessary to earn a livelihood. A check of the records of the U.S. Army CIC in Japan reveals no adverse information concerning him.

"When the war began he was in possession of a valid American passport and was currently registered at the Consulate General, Tokyo.

"He is at present employed by a private Japanese business firm and hence it is not felt that his continued residence in Japan contributes to the prestige or general welfare of the U.S.

"In view of the above facts his registration has been approved locally to be valid for one year, to December 31, 1947, (sic) which is believed to be a sufficient time for him to effect his return to the United States. * * * ." [**41]

n3. Former Title 28 U.S.C.A. § 102, Act of March 3, 1911, c. 231, Sec. 41, 36 Stat. 1100, provided: "The trial of all offenses committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district where the offender is found, or into which he is first brought."

New Title 18 U.S.C.A. § 3238, Act of June 25, 1948, c. 645, 62 Stat. 826, is substantially the same.

The trial was properly held in the district where appellant was "found". See Chandler v. United States, 1 Cir., 1948, 171 F.2d 921; Best v. United States, 1 Cir., 1950, 184 F.2d 131.

n4. "(a) Defendant Tomoya Kawakita, on a date in May, 1945, the exact date of which is to the grand jury unknown, at the said smelter operated by the company near Camp Oeyama, did direct the work of Phillip D. Toland, a member of the armed forces of the United States who was then and there a prisoner of war, to compel him to remove rock from the roadbed and track of a railroad used in the operation of said smelter, and did kick the said Phillip D. Toland to compel him to great exertion in said work.

"(b) Defendant Tomoya Kawakita, during the latter part of April, 1945, the exact date of which is to the grant jury unknown, at said Camp Oeyama did direct and participate in the following inhuman and degrading punishment of one, J. C. Grant, a member of the armed forces of the United States who was then and there a prisoner of war at said Camp Oeyama; said J. C. Grant was knocked into the drain or cesspool of said camp by his Japanese guards and was repeatedly and violently struck and beaten by the defendant and the said Japanese guards as he attempted to get out of the pool, thereby sustaining injuries, shock and exposure.

"(c) During December, 1944, at Camp Oeyama, on a date to the grant jury unknown, the defendant Tomoya Kawakita and the Japanese guards did line up about thirty members of the armed forces of the United States who were then and there prisoners of war in Camp Oeyama and as punishment of said prisoners of war for making mittens and shoe linings from pieces of blankets for protection from cold weather conditions and did at said time and place strike and beat them and force them to strike and beat each other.

"(d) During August, 1945, the exact date of which to the grand jury is unknown, the defendant Tomoya Kawakita, at Camp Oeyama, did impose punishment on one Thomas J. O'Connor, a member of the armed forces of the United States, and then and there a prisoner of war in said camp, for a breach of camp rules by assaulting, striking, and beating said Thomas J. O'Connor and repeatedly knocked him into the drain or cesspool of the said camp, causing the said Thomas J. O'Connor temporarily to lose his reason.

"(g) On a date in July or August, 1945, the exact date of which is to the grand jury unknown, a work detail consisting of members of the armed forces of the United States who were then and there prisoners of war at said Camp Oeyama, including in their number one David R. Carrier and George W. Simpson, returned thirty minutes early from their assigned duties as such prisoners of war and were compelled by the Japanese sergeant in charge to run twice around the inner quadrangle of the buildings of said camp and thereafter the defendant Tomoya Kawakita did compel the said David R. Carrier and George W. Simpson, who were unable to run fast enough by reason of illness resulting from their captivity, to run an additional four times and six times respectively around said quadrangle of said camp.

"(i) That on or about December 17, 1944, at or near the said open pit ore mine, the defendant, Tomoya Kawakita, did order and compel Johnie T. Carter, then and there a member of the armed forces of the United States and a prisoner of war at Camp Oeyama, to carry a heavy log up an ice-covered slope; that the said Johnie T. Carter, who was then and there suffering from malnutrition and in a weakened physical condition, slipped and fell and received a serious spinal injury; that the defendant, Tomoya Kawakita, then and there denied medical care to the said Johnie T. Carter and delayed his removal to Camp Oeyama for a period of approximately five hours.

"(j) On a date in May, 1945, the exact date of which is to the grant jury unknown, the defendant Tomoya Kawakita, at a warehouse near Camp Oeyama, did order and command John J. Armellino, a member of the armed forces of the United States, who was then and there a prisoner of war at said Camp Oeyama, and weak and emaciated, to carry for a distance of approximately 500 feet two heavy buckets of white lead instead of one bucket which Armellino had been carrying, and did then and there strike and beat the said John J. Armellino in order to compel him to perform his labor.

"(k) That on a date in the late spring or early summer of 1945, the exact date of which is to the grand jury unknown, the defendant, Tomoya Kawakita, within the confines of Camp Oeyama, did participate in and assist Japanese military personnel of Camp Oeyama in directing and executing the following cruel, inhuman, and degrading punishment of Woodrow T. Shaffer, a member of the armed forces of the United States who was then and there a prisoner of war of the Japanese government at Camp Oeyama, to-wit, the said Woodrow T. Shaffer was forced to kneel for several hours on a platform with a stick of bamboo placed on the inner side of the joints of his knees and to hold at arm's length above his head a bucket of water and subsequently a heavy log, and was then and there struck and beaten by the said Tomoya Kawakita. [**42]

n5. Two alternate jurors sat in the case. This was not improper. Robinson v. United States, 6 Cir., 1944, 144 F.2d 392, certiorari denied, 323 U.S. 789, 65 S.Ct. 311, 89 L.Ed. 629; American Tobacco Co. v. United States, 6 Cir., 1944, 147 F.2d 93, affirmed, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575.

n6. See new Title 18 U.S.C.A. § 2381, Act of June 25, 1948, c. 645, 62 Stat. 807.

n7. Title 8 U.S.C.A. § 800: "Right of expatriation

"Whereas 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 whereas in the recognition of this principle this Government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: 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." [**43]

n8. Title 8 U.S.C.A. § 801: "General means of losing United States nationality

"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, either upon his own application or through the naturalization of a parent having legal custody of such person: Provided, however, That nationality shall not be lost as the result of the naturalization of a parent unless and until the child shall have attained the age of twenty-three years without acquiring permanent residence in the United States: Provided further, That a person who has acquired foreign nationality through the naturalization of his parent or parents, and who at the same time is a citizen of the United States, shall, if abroad and he has not heretofore expatriated himself as an American citizen by his own voluntary act, be permitted within two years from the effective date of his (sic) chapter to return to the United States and take up permanent residence therein, and it shall be thereafter deemed that he has elected to be an American citizen. Failure on the part of such person to so return and take up permanent residence in the United States during such period shall be deemed to be a determination on the part of such person to discontinue his status as an American citizen, and such person shall be forever estopped by such failure from thereafter claiming such American citizenship; 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 unless expressly authorized by the laws of the United States, 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 service of the United States in time of war, provided he is convicted thereof by a 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."

The statute was amended in 1944 by the Acts of Jan. 20, 1944, c. 2, Sec. 1, 58 Stat. 4; July 1, 1944, c. 368, Sec. 1, 58 Stat. 677; Sept. 27, 1944, c. 418, Sec. 1, 58 Stat. 746.

Title 8 U.S.C.A. § 802: "Presumption of expatriation

"A national of the United States who was born in the United States or who was born in any place outside of the jurisdiction of the United States of a parent who was born in the United States, shall be presumed to have expatriated himself under subsection (c) or (d) of section 801, when he shall remain for six months or longer within any foreign state of which he or either of his parents shall have been a national according to the laws of such foreign state, or within any place under control of such foreign state, and such presumption shall exist until overcome whether or not the individual has returned to the United States. Such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, or to an immigration officer of the United States, under such rules and regulations as the Department of State and the Department of Justice jointly prescribe. However, no such presumption shall arise with respect to any officer or employee of the United States while serving abroad as such officer or employee, nor to any accompanying member of his family." [**44]

n9. Title 8 U.S.C.A. § 808: "Exclusiveness of means of losing nationality

"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."

n10. Title 18 U.S.C.A. § 801, which is set out in footnote 8, supra.

n11. The requirement that the defendant in a treason prosecution owe allegiance to the United States is not subject to the two-witness proof requirement. The constitutional safeguard applies expressly to the "overt act". United States Constitution, Article III, Sec. 3, Clause 1. See Cramer v. United States, 1944, 325 U.S. 1, 65 S.Ct. 918, 89 L.Ed. 1441.

n12. Haupt v. United States, 1946, 330 U.S. 631, 67 S.Ct. 874, 91 L.Ed. 1145.

n13. The Government introduced witnesses to testify to various statements made by Kawakita as indicative of traitorous intent. These were received, with appropriate instructions, and were to the following effect:

"Get the God damn unloaded"; "It looks like MacArthur took a runout powder on you boys"; "The Japanese were a little superior to your American soldiers."; "From now on, anybody that can't work won't get anything to eat -- no rations."; that if the prisoners would raise their quota of work loads they would get more food and be able to quit earlier; "We shot down all your planes. We have very good anti-aircraft. You Americans don't have no chance. We will win the war."; (In answer to a question on how long the war would last) "twenty years and Japan will win it."; (In answer to the question as to whether he would ever return to the United States) that he would come back to the States, and when he got back he would be a big shot because he knew the country, the people and the language; that the prisoners would be in the camp for 50 years and that America would lose the war; "Come on, you guys are not working fast enough. Let us put out a little work here."; "Come on, hurry up. Let's put out more work"; "Get up and get to work."; "Get going. Get to work."; "You guys are going"; "Don't you know you are not allowed to have this kindling? Don't you know it is against the camp rules and regulations?" "Well, you guys needn't be interested in when the war will be over because, you won't go back; you will stay here and work. I will go back to the States because I am an American citizen."; "Get to work, you sons of bitches."; "You are not here at a damn bingo game, you are not here for your damn health."; "I guess you fellows understand the circumstances. If you don't work, why, you will suffer."; (Referring to corned beef that the prisoners had received in Red Cross packages) "You better make good use of that American garbage because you will never get to eat any more of it"; that the Americans were losing the war; "We will kill all you prisoners right here anyway, whether you win the war or lose it. You will never get to go back to the States."; "What the hell is the matter with you sons of bitches? Here, get going here."; that they could not waste any good medical aid on a bunch of lazy Americans; that the prisoners would never go back to their wives and families; that the Japanese are going to win the war and he is going to be No. 1 man over here and he was coming back to the United States; that the prisoners should hurry up; that he asked a prisoner if he was a damn Yank; (In answer to a question by a prisoner whether he had attended a government sponsored school in the United States) "They never gave me a damn thing."; that the men were getting too much rice; that Japan would win the war if it took a hundred years; that the Japanese were far superior to the American people and if the American army had Japanese officers they could whip the world."; "I wish you were all dead"; "Get out more loads."; that the prisoners were killing time; that the work quota would be raised for the prisoners; "All right, men, back on the job."; that the prisoners needn't worry about the war or the ending of the war, because they would never get back to the United States; that he was going back to the United States to be a big shot, because he knew the Japanese and the English language, both; that the prisoners had not reached their quota in loads of ore and that therefore their noonday soup would be taken away from them; (After a prisoner who was chewing gum denied this and tried to hide it under his tongue) "You lie."; that the Japanese had driven the Americans out of the Pacific; shot down all the American planes, sunk the American ships and that he soon would be coming to the United States where he would be a big shot because he knew the language and the people and the country; that the work quotas were too low; that he ordered the men to thumb their nose at the United States; "I will be glad when all the Americans are dead, and then I can go home and live happy."; "Roosevelt was no good."; that he told a prisoner who was resting because of cramps to go out and dig dikons for the next day's meal; that if the prisoners would get out a certain number of cars of ore they could knock off; that the prisoners would have to put out more cars of ore because they quit too early; that Japan was winning the war but it didn't make any difference whether they won or not, the prisoners would not get back home, anyhow; that after Japan had won the war he was coming back to the United States and be a big shot because he could speak the English language; that he called the prisoners lazy yanks, and told them to get out there and get the cars rolling; "Well, it don't make a damn to me which way the war goes because I am going back to the States anyway."; "Anybody who is too sick to work is too sick to eat."; (On the day that work ended in the camp after the surrender of Japan) "You American bastards will be well fed, you will be getting fat from now on."; that prisoners working on a rocky level should get out as much ore as those working in soft dirt; that prisoners should go back to work before the end of their full break period; that a prisoner would be sorry for going into the woods and getting nuts when he should have been working (the nuts had been given to the prisoner by a guard); (after knocking a cigarette out of the hand of a prisoner) that all the prisoner was supposed to do was work for the Japanese people. [**45]

n14. The following is a summary taken from Cramer v. United States, 1944, 325 U.S. 1, at page 25, 65 S.Ct. 918, 89 L.Ed. 1441, which quotes from the Government's brief filed therein, of all cases in which construction of the treason clause has been involved, omitting grand jury charges and cases in which interpretation of the clause was incidental:

"Whiskey Rebellion cases: United States v. Vigol, C.C.D. Pa. 1795, 28 Fed.Cas. 376, No. 16,621, United States v. Mitchell, C.C.D. Pa. 1795, 26 Fed.Cas. 1277, No. 15,788 (constructive levying of war, based on forcible resistance to execution of a statute; defendants convicted and later pardoned). House tax case: Case of Fried, C.C.D. Pa. 1799, 1800, 9 Fed.Cas. 826, 924, Nos. 5126, 5127 (constructive levying of war, based on forcible resistance to execution of a statute; defendant convicted and later pardoned). The Burr Conspiracy: Ex parte Bollman, 1807, 4 Cranch 75, 2 L.Ed. 554, United States v. Burr, C.C.D. Va. 1807, 25 Fed.Cas. 2, 55, Nos. 14,692a, 14693 (conspiracy to levy war held not an overt act of levying war). United States v. Lee, C.C.D.C. 1814, 26 Fed.Cas. 907, No. 15,584 (sale of provisions a sufficient overt act; acquittal). United States v. Hodges, C.C.D. Md. 1815, 26 Fed.Cas. 332, No. 15,374 (obtaining release of prisoners to the enemy, the act showing the intent; acquittal). United States v. Hoxie, C.C.D. Vt. 1808, 26 Fed.Cas. 397, No. 15,407 (attack of smugglers on troops enforcing embargo is riot and not levying of war). United States v. Pryor, C.C.D. Pa. 1814, 27 Fed.Cas. 628, No. 16,096 (proceeding under flag of truce with enemy detachment to help but provisions is too remote an act to establish adhering to the enemy). United States v. Hanway, C.C.E.D. Pa. 1851, 26 Fed.Cas. 105, No. 15,299 (forcible resistance to execution of Fugitive Slave Law no levying of war). United States v. Greiner, D.C.E.D. Pa. 1861, 26 Fed.Cas. 36, No. 15,262 (participation as member of state militia company in seizure of a federal fort is a levying of war). United States v. Greathouse, C.C.N.D. Cal. 1863, 26 Fed.Cas. 18, No. 15,254 (fitting out and sailing a privateer is a levying of war; defendants convicted, later pardoned). Cases of confiscation of property or refusal to enforce obligations given in connection with sale of provisions to the Confederacy: Hanauer v. Doane, 1871, 12 Wall. 342, 20 L.Ed. 439; Carlisle v. United States, 1873, 16 Wall. 147, 21 L.Ed. 426; Sprott v. United States, 1874, 20 Wall. 459, 22 L.Ed. 371; United States v. Athens Armory, D.C.N.D. Ga. 1868, 24 Fed.Cas. 878, No. 14,473 (mixed motive, involving commercial profit, does not bar finding of giving aid and comfort to the enemy). United States v. Cathcart and United States v. Parmenter, C.C.S.D. Ohio, 1864, 25 Fed.Cas. 344, No. 14,756. Chenoweth's Case (unreported: See Ex parte Vallandigham, D.C.S.D. Ohio 1863, 28 Fed.Cas. 344, No. 14,756. Chenoweth's Case (unreported: See Ex parte Vallandigham, D.C.S.D. Ohio 1863, 28 Fed.Cas. 874, at page 888, No. 16,816 (indictment bad for alleging aiding and abetting rebels, instead of directly charging levying of war). Case of Jefferson Davis, C.C.D. Va. 1867-71, 7 Fed.Cas. 63, No. 3621a (argument that rebels whose government achieved status of a recognized belligerent could not be held for treason; Davis was not tried on the indictment); see 2 Warren, Supreme Court in United States History (1934 ed.) 485-87; Watson, Trial of Jefferson Davis (1915) 25 Yale L.J. 669. Philippine insurrections: United States v. Magtibay, 1903, 2 Phil. 703, United States v. De Los Reyes, 1904, 3 Phil. 349 (mere possession of rebel commissions insufficient overt acts; strict enforcement of two-witness requirement; convictions reversed); United States v. Lagnason, 1904, 3 Phil. 472 (armed effort to overthrow the government is levying war). United States v. Fricke, D.C.S.D.N.Y. 1919, 259 F. 673 (acts "indifferent" on their face held sufficient overt acts). United States v. Robinson, D.C.S.D.N.Y. 1919, 259 F. 685 (dictum, acts harmless on their face are insufficient overt acts). United States v. Werner, D.C.E.D. Pa. 1918, 247 F. 708, affirmed, 1919, 251 U.S. 466, 40 S.Ct. 259, 64 L.Ed. 360 (act indifferent on its fact may be sufficient overt act). United States v. Haupt, 7 Cir., 1943, 136 F.2d 661 (sic) (reversal of conviction on strict application of two-witness requirement and other grounds; inferentially approves acts harmless on their fact as overt acts). Stephan v. United States, 6 Cir., 1943, 133 F.2d 87 (acts harmless on their fact may be sufficient overt acts; conviction affirmed but sentence commuted). United States v. Cramer, 2 Cir., 1943, 137 F.2d 888 (sic)."

The exhaustive comment in 58 Harvard Law Review at page 835, footnotes the following cases as sufficient overt acts: Hanauer v. Doane, 1870, 12 Wall. 342, 20 L.Ed. 439 (sale of goods, intended for enemy use); United States v. Lee, C.C.D.C. 1814, 26 Fed.Cas. 907 No. 15,584 (purchase of provisions, intended for enemy); United States v. Greathouse, C.C.N.D. Cal. 1863, 26 Fed.Cas. 18, No. 15,254 (fitting out a sailing vessel, intended to act as a privateer); United States v. Werner, D.C.E.D. Pa. 1918, 247 F. 708 (words); United States v. Fricke, D.C.S.D.N.Y. 1919, 259 F. 673 (holding of funds on deposit, or borrowing money, when for convenience of enemy agent); United States v. Haupt, 7 Cir., 1943, 136 F.2d 661 (holding funds, securing lodgings, furnishing mailing address, when for convenience of enemy agent) (sic). [**46]

n15. A convention relating to the treatment of prisoners of war was signed by representatives of the United States and forty-six other countries including Japan at Geneva on July 27, 1929.

In response to proposals made by the government of the United States through the Swiss minister in Tokyo, the Swiss minister informed the United States Department of State on January 30, 1942, that "* * * Although not bound by the Convention relative treatment prisoners of war Japan will apply mutatis mutandis provisions of that Convention to American prisoners of war in its power".

In response to an inquiry directed to the Department of State by Defense Counsel as to the meaning of the words "mutatis mutandis", it was explained that the Japanese government would apply, on condition of reciprocity, the Geneva Prisoners of War Convention in the treatment of prisoners of war.

n16. The capitalization in the above quotation is in accord with the original script of the Constitution. The Constitution of the United States of America, U.S. Govt. printing office, 1938. Literal print.

n17. On Wednesday, August 25, 1948, the jury retired to deliberate. On August 26, requested portions of the testimony were read to the jury. On Saturday, August 28, the jury made the following communication to the court:

"The jury is unable to arrive at a verdict. A majority of the jury feel there is no probability of doing so."

(Signed) "Wm. W. Andrews Foreman."

Defense counsel requested the court to discharge the jury. This request was refused and the court, on stipulation of both parties, requested the jury to continue their deliberations. At their own request, the jury was then granted a recess until Monday, August 31. On Monday the jury made the following communication to the court:

"The Foreman, personally, respectfully requests permission to approach the bench, or other similar action, for the reason of securing aid and advice of the court, on a matter of procedure concerning the proper deliberating of this jury. This matter is, in my belief, serious and I am supported in this believe by other members of the jury. The court's consideration of this request will be appreciated, and of help."

(Signed) "Wm. W. Andrews, Foreman."

Defense counsel again moved that the jury be discharged on the ground that any further instructions or deliberations would be in the nature of compulsion. The following proceedings then transpired:

"The Court: Before anything is said I want to caution you again: The court is not interested until you have reached unanimous agreement in hearing anything about how the jury stands numerically or otherwise, as I told you at the time the case was given to you. So in anything that is said, I want to caution you against any statement of any kind as to how you stand numerically or in any other manner.

"What is the question as to procedure?

"The foreman: Your Honor, it is my belief that we have a juror here who is impeding justice.

"The Court: Now, I don't want to hear anything about it. That is indicating how you stand.

"The Foreman: Your Honor, it is not --

"The Court: It is a question of the procedure.

"The Foreman: It does not indicate how we stand.

"The Court: Very well. Perhaps I am too hasty.

"The Foreman: There are other members. We are not 11 to 1 or anything else.

"The Court: I don't want to hear anything about how you stand.

"The Foreman: I understand. Excuse me, please, your Honor.

"The Court: Proceed, please, Mr. Foreman.

"The Foreman: I believe that this juror is impeding justice, interfering with the course of this trial, and making it so that this jury will never can can never arrive at a verdict; and that we are kept there, not only unable to proceed but with this person who is personally objectionable to some members of the jury.

"The Court: Is that the question?

"The Foreman: And we wish to know what to do.

"The Court: Well, you have had a rest over the week end as you requested. I hoped that all of you would come back refreshed and ready to continue your labors today.

"It is not helpful for jurors or any other people to criticise each other told you upon giving you the case your sole function here is the ascertainment of the truth from the evidence before you.

"You are not partisans. You are judges -- the judges of the facts. Your sole function is to determine the truth from the evidence -- the truth as to the facts.

"Now, you were given a number of questions to answer. Numerically, they are quite a goodly number, but you have seen, no doubt, from reviewing the forms of special verdicts handed you the eight questions asked as to each overt act are the same questions with respect to each overt act, that is, insofar as they apply to the various overt acts.

"I suppose all of us are prone to think that when people do not agree with us that the other fellow is wrong. The purpose of instructing the jury to deliberate together is to have you receive each others views and listen to them with due respect and regard for the other fellow. That is the American way.

"We each have our points of view, and sometimes when we discuss the problem together with an open mind and fairly we reach an agreement; and that is why I said when the case was given to you the verdict must represent the individual judgment of each juror. Your verdict must be unanimous. But it is your duty to consult and deliberate with each other with a view to reaching an agreement if you can do so without violence to your individual judgment or conscience.

"I am sure you all understand that from the instructions given. No juror is expected to surrender his or her conscientious convictions as to the credibility of witnesses or as to the weight of the respective evidence for the mere purpose of arriving at a verdict.

"It is not for me to tell the jury how to deliberate or the order in which they are to deliberate. I am sure all of you are mindful of your duties, and I would suggest you now retire and deliberate further.

"The foreman: May I be heard further, your Honor?

"The Court: Yes.

"The Foreman: I am in a peculiar position because I am one of the few lawyers probably who have ever been on a jury. I have been on juries years ago, I have been on juries during this term, and I think I know something about both sides of the jury, and we go as far as we can with anything.

"When it comes to a point where a supposedly reasonable person or persons feel it is impossible to continue, then we speak. And I spoke Saturday, and I am not alone.

"The Court: We do not want to hear what goes on in the jury room.

"The foreman: I understand. That was the message that I sent to your Honor: I am not alone.

"I would appreciate if the jury were polled as to an opinion on this because, after all, we have some things to do. If we feel it is utterly impossible, it seems it is not required of us to do a useless act. And, as I say, there is a personal animosity there that could possibly be dangerous.

"The Court: Well, can't you poll yourselves up in the jury room?

"The Foreman: We have, your Honor.

"The Court: It won't help to poll you on such a question as that. I don't even know the question you wish to be polled upon.

"The Foreman: We wish to be excused. We feel that we cannot arrive at a verdict and the jury has been polled.

"Mr. Lavine: I now request that the jury be polled on that question, your Honor.

"The Court: What question?

"Mr. Lavine: Whether they feel it is impossible to reach a verdict.

"Mr. Carter: One of the jurors indicated, raised his hand here a minute ago in some matter.

"The Court: Was that you, Mr. Clancy?

"Juror Clancy: I don't think there is any chance in the world for this jury to agree. We have been locked up five nights and five days and we have not accomplished a thing and we never will. There is animosity crept in and there is everything crept in.

"The Court: Well, you have serious questions there to answer, ladies and gentlemen. There is indication or space provided for a "yes" or "no" answer to those questions. Are you to suggest you can't answer any of the questions?

"Juror Clancy: Yes, your Honor.

"The Foreman: That is the suggestion, your Honor. We have not answered any questions.

"The Court: Are you suggesting to me that it is impossible for the jury to agree upon a single answer to any one of the 104 questions propounded?

"Juror Clancy: Yes.

"The Foreman: Yes, your Honor.

"Juror Sidle: Could I say a word, your Honor?

"The Court: Well, if it is -- yes; you may.

"Juror Sidle: I have been on many juries. I understand -- I think I understand the procedure. We proceeded as instructed and, with the knowledge that we have, to the best of our ability, we discussed it and all of that. In other words, we approached it from every angle. There isn't any angle that I can think of that could be approached that would bring about, as we feel any positive result or agreement.

"We agree and not agree, and we just can't get anywhere with a situation, in the slang phrase, "hung up." That is what we are up against.

"Further, your Honor, we realize, every one of us realizes the importance and the time and energy that has been put into this situation. We realize, further, individually, that we owe all of our energy and all of our time to put forth in this in trying to arrive, and went at it from every angle, and it has gotten to a point where, personally, I feel that there is absolutely nothing can be done.

"Of course, if the court has anything or could do anything to help -- but I understand. I am still willing to go ahead as long as my energies will hold up.

"Mr. Lavine: May it please the court, in view of the statement of the three jurors I now again renew my motion to discharge the jury, and call your Honor's attention to the case of Colonel Evans. The jury was only kept out one day in that case.

"The Court: I don't care to hear anything. You just make your motion.

"Mr. Lavine: Yes, your Honor.

"The Court: The motion is denied, unless you have something to say of citations of other cases. Each case stands on its own footing. Was that a treason case?

"Mr. Lavine: No.

"The Court: Was that a case in which there were several months" trial?

"Mr. Lavine: Yes; there was quite a long trial, your Honor.

"Mr. Carter: Three weeks, your Honor.

"The Court: Pardon?

"Mr. Carter: Three weeks, I believe.

"Mr. Lavine: I think anything else now would be in the nature of coercion. That is the ground of my motion.

"The Court: Yes; I understand.

"The court wishes to assist you in every way possible, ladies and gentlemen. Of course, as I have told you throughout the trial, you are the sole judges of the credibility of the witnesses and of the weight and effect of the evidence. You are the sole judges of how you shall deliberate, and while the court may keep you deliberating, the court can't make you deliberate. It is the old story: You can ride a horse to the water, but you can't make him drink.

"When a situation like this is reached, the court tries to be of assistance to the jury. Frequently the position is made -- and in may instances, perhaps, properly so -- that the court is attempting to coerce the jury or to force the jury to arrive at a verdict.

"A verdict is desirable, but it is only desirable if it is a true verdict. It is only a true verdict if it represents the individual judgment, the honest individual judgment of each juror.

"Do you wish any further suggestions from the court?

"The Foreman: I still insist, your Honor, that it is utterly impossible. Persons of ordinary and reasonable intelligence could discuss things and arrive at any point --

"The Court: That was not my question. My question was: Do you want any further suggestions from the court?

"The Foreman: I renew my request that the jury be dismissed, your Honor.

"The Court: Who was it had up their hand? Mrs. Ziegler, do you have something?

"Juror Ziegler: Perhaps not. May I, your Honor?

"The Court: Yes; you may.

"Juror Ziegler: Would it be out of form to have a new foreman? Mr. Andrews has not been well over the week end and somebody else has not.

"The Court: You are entitled to elect your own foreman at any time.

"Juror Ziegler: That would not help any.

"The Foreman: I might say that the lady nominated me for foreman, your Honor.

"Juror Ziegler: Yes, I did.

"The Court: Let us not get into that. These personalities do not have anything at all to do with the court, and these personal relationships sometimes are the things that keep us from being open-minded and arriving at a verdict.

"The court wishes to suggest a few thoughts which you may wish to consider along with your consideration of the evidence and all the instructions previously given you.

"This is an important case. The trial has been long and expensive. If you should fail to agree on a verdict, the case is left open and undecided. Like all cases, it must be disposed of sometime. There appears no reason to believe that another trial would not be equally long and expensive; nor does there appear any reason to believe that the case can be again tried any more exhaustively than it has been on the part of either side.

"Any future jury must be selected in the same manner and from the same source as you have been chosen. So there appears to be no reason to believe that the case would ever be submitted to twelve men and women more intelligent, more impartial, more competent to decide it, or that more or clearer evidence could be produced on the part of either side.

"As I told you at the time I instructed you, it is rarely possible to prove or disprove, either way -- it is rarely possible to prove or disprove anything to an absolute certainty.

"Upon brief reflection, the matters I have mentioned suggest themselves, of course, to all of us who have sat through this trial. The only reason they are mentioned is because some of them may have escaped your attention, which must have been fully occupied in your consideration of all the evidence up to this time. These are matters which, along with others and perhaps more obvious ones, remind us of the desirability that you give the jury's unanimous answer to the questions asked on the 13 forms of special verdict submitted, and that you unanimously agree upon a general verdict of guilty or not guilty if you can do so without violence to your individual judgment and your conscience.

"It is unnecessary for me to say again that the court does not wish any juror to surrender his or her conscientious convictions. As I stated at the time the case was submitted to you, do you surrender your honest convictions as to the weight or effect of evidence solely because of the opinion of other jurors, or for the mere purpose of arriving at a verdict.

"As I said at the time, also, it is your duty as jurors, however, to consult with one another and to deliberate with a view of reaching an agreement if you can do so without violence to individual judgment.

"Each of you must decide the case for yourself, but you should do so only after a consideration of the evidence with your fellow jurors. And in the course of the deliberations you should not hesitate to change an opinion when convinced it is erroneous. And certainly a juror should never hesitate to change his opinion by reason of personalities, if they are convinced from the evidence and from the arguments made in the jury room that the opinion they had previously held is erroneous.

"In order to bring 12 minds to unanimous results, you must examine the questions submitted to you with candor and frankness, and with a proper regard and deference to the opinion of each other. That is to say, in conferring together you should pay due attention and respect to each others opinions and listen to each others arguments with a disposition and open-minded -- a disposition to be convinced. If the much larger number of you are for a conviction, each dissenting juror should consider whether a doubt in his or her own mind is a reasonable one, since it makes no effective impression upon the minds of so many equally honest, equally intelligent fellow jurors who have heard the same evidence, with the same attention and with an equal desire to arrive at the truth and under the sanction of the same oath.

"On the other hand, if a majority or any substantial number of you are for acquittal, the other jurors ought seriously to ask themselves again whether they do not have reason to doubt the correctness of a judgment which is not concurred in by many of their fellows.

"Mr. Lavine: Had your Honor concluded?

"The Court: No. The court and the jury are here to come to a just and righteous result in this case. You are as anxious to reach that result, I know, as I am.

"As I have stated to you before, you are not partisans. You are judges -- judges of the facts and your sole purpose is to ascertain the truth as to the facts from the evidence, and in ascertaining the truth as to the facts you are the sole and exclusive judges.

"You must know it by heart by now. You are the sole and exclusive judges of the credibility of the witnesses and the weight and effect of all the evidence, and in the performance of your duties you are entitled to disregard, disregard entirely all comments of the court and counsel in reaching your own judgment and in making your own findings as to the truth as to the facts.

"Let me repeat again so that you will not feel that any remarks I have made are intended to put any coercion or pressure upon you: No juror is expected to yield a conscientious conviction he or she may have as to the credibility of any witness or as to the weight or effect of any evidence but, as I have previously said, it is your duty, members of the jury, to agree, unless after a full and impartial consideration of all the evidence with your fellow jurors, to agree would do violence to your individual judgment and conscience.

"There has been some suggestion here -- there was Friday -- that some of you were very tired. Perhaps I should have suggested to you at the outset that you may be as leisurely in your deliberations as the occasion and circumstances may require. Sometimes jurors may fail to agree because they hurry too much to try to agree. Sometimes people do that.

"I do not speak in any critical vein. We are dealing with an attempt to get 12 human beings to arrive at a common conclusion as to the truth.

"You will remember at all times if any doubt remains in your mind, any reasonable doubt as to the guilt, the defendant is entitled to your verdict of acquittal.

"The bailiffs have been instructed to take you to your meals whenever you wish to go, to take you to your hotel whenever you wish to go. You are to take all the time you may feel necessary for your deliberations.

"You may now retire and continue your deliberations as your good and conscientious judgment as reasonable men and women may determine.

"The Foreman: May I be heard further, you Honor? I think the court does not understand the point that I raise. No one here objects to which way any juror voted, but the manner and statements made indicate to us this long time that it is going to be utterly impossible to complete this. It is not -- no one here objects to any way or which way.

"The Court: I understand that, Mr. Andrews.

"The Foreman: I was not trying to state how the jury stood. But there is one question --

"The Court: But sometimes, when people differ with us, that affects our opinion of them, you know.

"Mr. Foreman: I understand that, but as time goes by, it seems to me that sufficient time has gone by. That is my personal opinion and I have a great hesitancy for returning to the jury room.

"The Court: Well, Mr. Andrews, you are a lawyer. Let me suggest to you that maybe you are able to arrive at your conclusion in some of these matters more rapidly by reason of your legal training. It may be necessary for some of the others to catch up with you.

"The Foreman: I am not alone, sir.

"The Court: Well, that may be true, too.

"Mr. Lavine: I again renew my request, your Honor, in view of that statement, to discharge the jury.

"The Court: Do you have something further, Mrs. Ziegler? You raised your hand.

"Juror Ziegler: I don't feel like going out under the circumstances; I really don't.

"The Court: It is very difficult, ladies and gentlemen of the jury, to the court to feel that you have completed your deliberations to the extent that you could under the court's instructions and not be able to arrive at a unanimous answer to one of the 104 questions presented to you. That may be the case.

"It has been a long trial, as I say, and I know you are tired and you would like to be done with it. But in all the circumstances which have been mentioned here, I would ask you to deliberate further, to try further to see if you can't come to a unanimous agreement. If you can't answer all the questions, answer as many as you can. And remember, again, that no juror is expected to surrender his honest convictions if, after full deliberation and attention to the views of his or her fellow jurors, he or she remains convinced of the correctness of his or her stand on any matter involved.

"You may now retire."

On Tuesday, August 31, a further communication from the jury to the court was received:

"Your Honor: The jury respectfully requests the court's clarification of all the instructions.

"Respectfully submitted, Elsie B. Nickel."

Again denying the motion of defendant that the jury be discharged, the court attempted to further clarify the instructions, and the jury again retired to deliberate.

On the afternoon of Thursday, September 2, 1948, the jury returned a general verdict of guilty, and a verdict of guilty as to eight of the overt acts charged. [**47]

n18. See proceedings in United States v. Sorcey, 7 Cir., 1945, 151 F.2d 899, certiorari denied 327 U.S. 794, 66 S.Ct. 821, 90 L.Ed. 1021; Boehm v. United States, 8 Cir., 1941, 123 F.2d 791, certiorari denied, 315 U.S. 800, 62 S.Ct. 626, 86 L.Ed. 1200, rehearing denied, 315 U.S. 828, 62 S.Ct. 794, 86 L.Ed. 1223; United States v. Olweiss, 2 Cir., 1944, 138 F.2d 798, motion denied, 321 U.S. 744, 64 S.Ct. 483, 88 L.Ed. 1047; United States v. Samuel Dunkel & Co., 2 Cir., 1949, 173 F.2d 506; Nick v. United States, 8 Cir., 1941, 122 F.2d 660, 138 A.L.R. 791, certiorari denied, 314 U.S. 687, 62 S.Ct. 302, 86 L.Ed. 550, rehearing denied, 314 U.S. 715, 62 S.Ct. 411, 86 L.Ed. 570, motion denied, 316 U.S. 710, 62 S.Ct. 1103, 86 L.Ed. 1776; but see Edwards v. United States, 8 Cir., 1925, 7 F.2d 598; Gideon v. United States, 8 Cir., 1931, 52 F.2d 427.

n19. See new Title 18 U.S.C.A. § 2381, Act of June 25, 1948, c. 645, 62 Stat. 807.

End Footnotes [**48]

U.S. Supreme Court

KAWAKITA v. UNITED STATES, 343 U.S. 717 (1952)
343 U.S. 717

KAWAKITA v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
No. 570.
Argued April 2-3, 1952.
Decided June 2, 1952.

At petitioner's trial for treason, it appeared that originally he was a native-born citizen of the United States and also a national of Japan by reason of Japanese parentage and law. While a minor, he took the oath of allegiance to the United States; went to Japan for a visit on an American passport; and was prevented by the outbreak of war from returning to this country. During the war, he reached his majority in Japan; changed his registration from American to Japanese; showed sympathy with Japan and hostility to the United States; served as a civilian employee of a private corporation producing war materials for Japan; and brutally abused American prisoners of war who were forced to work there. After Japan's surrender, he registered as an American citizen; swore that he was an American citizen and had not done various acts amounting to expatriation; and returned to this country on an American passport. Held: His conviction for treason is affirmed. Pp. 719-745.

     1. The evidence was sufficient to support the finding of the jury that he had not renounced or lost his American citizenship at the time of the overt acts charged in the indictment. Pp. 720-732.

          (a) In view of petitioner's dual nationality, it cannot be said as a matter of law that his action in registering in the Koseki (a family census register) and changing his registration from American to Japanese amounted to a renunciation of American citizenship within the meaning of 401 of the Nationality Act. Pp. 722-725.

          (b) Nor is such a holding required as a matter of law by the facts that, during the war, he traveled to China on a Japanese passport, used his Koseki entry to obtain work at a prisoner-of-war camp, bowed to the Emperor, and accepted labor draft papers from the Japanese Government. P. 725.

          (c) In view of the conflict between petitioner's statements at his trial that he felt no loyalty to the United States from March 1943 to late 1945 and his actions after Japan's defeat (when he [343 U.S. 717, 718] applied for registration as an American citizen and for an American passport), the question whether he had renounced his American citizenship was peculiarly for the jury to determine. Pp. 725-727.

          (d) It cannot be said that petitioner was serving in the armed forces of Japan within the meaning of 401 (c) nor that his status as a civilian employee of a private corporation was so changed by the regimentation of the industry by the Japanese Government that he was performing the duties of an "office, post, or employment under the government" of Japan within the meaning of 401 (d) of the Nationality Act. Pp. 727-729.

          (e) Section 402 creates a rebuttable presumption that a national in petitioner's category expatriates himself when he remains for six months or longer in a foreign state of which he or either of his parents shall have been a national; but that presumption was rebutted by the showing that petitioner was not expatriated under 401 (c) or (d). P. 730.

          (f) If there was any error in the judge's charge to the jury that the only methods of expatriation are those contained in 401, it was harmless error, since petitioner tendered no question of fact which was inadmissible under 401 and since the judge charged that he could not be convicted if he honestly believed that he was no longer a citizen of the United States. Pp. 730-732.

     2. Notwithstanding his dual nationality and his residence in Japan, petitioner owed allegiance to the United States and can be punished for treasonable acts voluntarily committed. Pp. 732-736.

          (a) Since the definition of treason in Art. III, 3 of the Constitution contains no territorial limitation, an American citizen living beyond the territorial limits of the United States can be guilty of treason against the United States. Pp. 732-733.

          (b) Petitioner was held accountable by the jury only for performing acts of hostility toward this country which he was not required by Japan to perform. Pp. 734-735.

         (c) An American citizen owes allegiance to the United States wherever he may reside. Pp. 735-736.

     3. Each of the overt acts of which petitioner was convicted was properly proven by two witnesses; and each of them showed that petitioner gave aid and comfort to the enemy. Pp. 736-742.

          (a) Two overt acts (abusing American prisoners for the purpose of getting more work out of them in producing war materials for the enemy) qualified as overt acts within the constitutional standard of treason, since they gave aid and comfort to the enemy, [343 U.S. 717, 719] though their contribution to the enemy's war effort was minor. Pp. 737-739.

          (b) The other six overt acts (cruelty to American prisoners of war) gave aid and comfort to the enemy by helping to make all the prisoners fearful, docile and subservient, reducing the number of guards needed, and requiring less watching - all of which encouraged the enemy and advanced his interests. Pp. 739-742.

          (c) The overt acts were sufficiently proven by two witnesses, since each overt act was testified to by at least two witnesses who were present and saw or heard that to which they testified and any disagreement among them was not on what took place but on collateral details. P. 742.

     4. The evidence was sufficient to prove that petitioner was guilty of voluntarily "adhering to the enemy." Pp. 742-744.

     5. The treasonable actions of petitioner were so flagrant and persistent that it cannot be said that the death sentence imposed by the trial judge was so severe as to be arbitrary. Pp. 744-745.

190 F.2d 506, affirmed.

In a Federal District Court, petitioner was convicted of treason and sentenced to death. See 96 F. Supp. 824. The Court of Appeals affirmed. 190 F.2d 506. This Court granted certiorari. 342 U.S. 932 . Affirmed, p. 745.

Morris Lavine and A. L. Wirin argued the cause for petitioner. With them on the brief was Fred Okrand.

Oscar H. Davis argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General McInerney and Beatrice Rosenberg.

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Petitioner, a national both of the United States and of Japan, was indicted for treason, the overt acts relating to his treatment of American prisoners of war. He was [343 U.S. 717, 720] convicted of treason after a jury trial (see 96 F. Supp. 824) and the judgment of conviction was affirmed. 190 F.2d 506. The case is here on certiorari. 342 U.S. 932 .

First. The important question that lies at the threshold of the case relates to expatriation. Petitioner was born in this country in 1921 of Japanese parents who were citizens of Japan. He was thus a citizen of the United States by birth (Amendment XIV, 1) and, by reason of Japanese law, a national of Japan. See Hirabayashi v. United States, 320 U.S. 81, 97 .

In 1939 shortly before petitioner turned 18 years of age he went to Japan with his father to visit his grandfather. He traveled on a United States passport; and to obtain it he took the customary oath of allegiance. In 1940 he registered with an American consul in Japan as an American citizen. Petitioner remained in Japan, his father returning to this country. In March, 1941, he entered Meiji University and took a commercial course and military training. In April, 1941, he renewed his United States passport, once more taking the oath of allegiance to the United States. During this period he was registered as an alien with the Japanese police. When war was declared, petitioner was still a student at Meiji University. He became of age in 1942 and completed his schooling in 1943, at which time it was impossible for him to return to the United States. In 1943 he registered in the Koseki, a family census register. 1 Petitioner did not join the Japanese Army nor serve as a soldier. Rather, he obtained employment as an interpreter with the Oeyama Nickel Industry Co., Ltd., where he worked until Japan's surrender. He was hired to interpret communications between the Japanese and the [343 U.S. 717, 721] prisoners of war who were assigned to work at the mine and in the factory of this company. The treasonable acts for which he was convicted involved his conduct toward American prisoners of war.

In December, 1945, petitioner went to the United States consul at Yokohama and applied for registration as an American citizen. He stated under oath that he was a United States citizen and had not done various acts amounting to expatriation. He was issued a passport and returned to the United States in 1946. Shortly thereafter he was recognized by a former American prisoner of war, whereupon he was arrested, and indicted, and tried for treason.

Petitioner defended at his trial on the ground that he had renounced or abandoned his United States citizenship and was expatriated. Congress has provided by 401 of the Nationality Act of 1940, 54 Stat. 1137, 1168, as amended, 8 U.S.C. 801, that a national of the United States may lose his nationality in certain prescribed ways. It provides in relevant part,

     "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 unless expressly authorized by the laws of the United States, 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 [343 U.S. 717, 722] foreign state or political subdivision thereof for which only nationals of such state are eligible; . . . ."

The court charged that if the jury found that petitioner had lost his American citizenship prior to or during the period specified in the indictment, they must acquit him even if he did commit the overt acts charged in the indictment, since his duty of allegiance would have ceased with the termination of his American citizenship. The court further charged that if the jury should find beyond a reasonable doubt that during the period in question petitioner was an American citizen, he owed the United States the same duty of allegiance as any other citizen. The court also charged that even though the jury found that petitioner was an American citizen during the period in question, they must acquit him if at the time of the overt acts petitioner honestly believed he was no longer a citizen of the United States, for then he could not have committed the overt acts with treasonable intent. The special verdicts of the jury contain, with respect to each overt act as to which petitioner was found guilty, an affirmative answer to an interrogatory that he was at that time "an American citizen owing allegiance to the United States, as charged in the indictment."

Petitioner asks us to hold as a matter of law that he had expatriated himself by his acts and conduct beginning in 1943. He places special emphasis on the entry of his name in the Koseki. Prior to that time he had been registered by the police as an alien. There is evidence that after that time he was considered by Japanese authorities as a Japanese and that he took action which might give rise to the inference that he had elected the Japanese nationality: he took a copy of the Koseki to the police station and had his name removed as an alien; he changed his registration at the University from American to Japanese and his address from California to Japan; [343 U.S. 717, 723] he used the Koseki entry to get a job at the Oeyama camp; he went to China on a Japanese passport (see United States v. Husband, 6 F.2d 957, 958); he accepted labor draft papers from the Japanese government; he faced the east each morning and paid his respects to the Emperor.

The difficulty with petitioner's position is that the implications from the acts, which he admittedly performed, are ambiguous. He had a dual nationality, a status long recognized in the law. 2 Perkins v. Elg, 307 U.S. 325, 344 -349. The concept of dual citizenship recognizes that a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both. [343 U.S. 717, 724] The mere fact that he asserts the rights of one citizenship does not without more mean that he renounces the other. In this setting petitioner's registration in the Koseki might reasonably be taken to mean no more than an assertion of some of the rights which his dual citizenship bestowed on him. The deposition of the Attorney General of Japan states that the entry of a person's name in the Koseki is taken to mean that one has Japanese nationality. But since petitioner already had Japanese nationality, he obviously did not acquire it by the act of registration. The Attorney General of Japan further deposed that all Japanese nationals, whether or not born abroad, are duty bound to Japanese allegiance and that registering in the Koseki is "not necessarily a formal declaration of allegiance but merely a reaffirmation of an allegiance to Japan which already exists." From this it would appear that the registration may have been nothing more than the disclosure of a fact theretofore not made public.

Conceivably it might have greater consequences. In other settings it might be the equivalent of "naturalization" within the meaning of 401 (a) of the Act or the making of "an affirmation or other formal declaration of allegiance" to Japan within the meaning of 401 (b). Certainly it was relevant to the issue of expatriation. But we cannot say as a matter of law that it was a renunciation of petitioner's American citizenship. What followed might reasonably be construed to mean no more than recognition of the Japanese citizenship which petitioner had acquired on birth - nationality that was publicly disclosed for the first time in Japan by his registration in the Koseki. Cf. 3 Hackworth, Digest of International Law (1942), p. 373. The changing of his registration at the police station and at the University, so as to conform those records to the public record of his [343 U.S. 717, 725] Japanese nationality, might reasonably mean no more than announcing the fact of his Japanese nationality to the interested authorities.

As we have said, dual citizenship presupposes rights of citizenship in each country. It could not exist if the assertion of rights or the assumption of liabilities of one were deemed inconsistent with the maintenance of the other. For example, when one has a dual citizenship, it is not necessarily inconsistent with his citizenship in one nation to use a passport proclaiming his citizenship in the other. See 3 Hackworth, supra, p. 353. Hence the use by petitioner of a Japanese passport on his trip to China, his use of the Koseki entry to obtain work at the Oeyama camp, the bowing to the Emperor, and his acceptance of labor draft papers from the Japanese government might reasonably mean no more than acceptance of some of the incidents of Japanese citizenship made possible by his dual citizenship.

Those acts, to be sure, were colored by various other acts and statements of petitioner. He testified for example that he felt no loyalty to the United States from about March, 1943, to late 1945. There was evidence that he boasted that Japan was winning and would win the war, that he taunted American prisoners of war with General MacArthur's departure from the Philippines, that he expressed his hatred toward things American and toward the prisoners as Americans. That was in 1943 and 1944. This attitude continued into 1945, although in May or June, 1945, shortly before Japan's surrender, he was saying he did not care "which way the war goes because I am going back to the States anyway."

On December 31, 1945, he applied for registration as an American citizen, and in that connection he made an affidavit in which he stated that he had been "temporarily residing" in Japan since August 10, 1939; that he came to [343 U.S. 717, 726] Japan to study Japanese; that he possessed dual nationality from birth but that his name was not entered in the census register until March 8, 1943; and that he had "never been naturalized, taken an oath of allegiance, or voted as a foreign citizen or subject, or in any way held myself out as such."

The United States foreign service officer concluded that petitioner had overcome the presumption of expatriation. He reported, "In 1943 his possession of Japanese nationality was made a matter of record by the entry of his name into his uncle's Family Census Register. He states that this action was taken under severe pressure by the Japanese police and by his uncle, on whom he was financially dependent after his supply of funds from the U.S. was cut off; this office has reason to believe this statement." These representations led to the issuance of an American passport on which he returned to the United States in 1946.

If petitioner were to be believed in December, 1945, he never once renounced his American citizenship. If what petitioner now says were his thoughts, attitudes, and motives in 1943 and 1944 and in part of 1945, he did intend to renounce his American citizenship. If the latter version were believed by the jury, the signing of the family register, and the changing of his registration at the police station and at the University would assume different significance; those acts might then readily suggest the making of a declaration of allegiance to Japan within the meaning of 401 (b). If, on the other hand, petitioner were to be believed when in 1945 he stated he had not done acts by which he renounced his American citizenship, then the Koseki incident and the changes in his police and University registration could reasonably be taken as amounting to no more than a public declaration of an established and preexisting fact, viz. his Japanese [343 U.S. 717, 727] nationality. We think, in other words, that the question whether petitioner had renounced his American citizenship was on this record peculiarly for the jury to determine. The charge was that the jury must be satisfied beyond a reasonable doubt that during the period specified in the indictment, petitioner was an American citizen. We cannot say there was insufficient evidence for that finding.

Petitioner concedes he did not enter the armed services of Japan within the meaning of 401 (c) of the Act but claims that during his tour of duty at the Oeyama camp he was "serving in" the Japanese armed services within the statutory meaning of those words. In this connection he also argues that his work in the Oeyama camp was the performance of the duties of an "office, post, or employment under the government" of Japan "for which only nationals of such state are eligible" within the meaning of 401 (d) of the Act.

The Oeyama Nickel Industry Co., Ltd., was a private company, organized for profit. It was engaged in producing metals used for war under contracts with the Japanese government. In 1944 it was designated by the Japanese government as a munitions corporation and under Japanese law civilian employees were not allowed to change or quit their employment without the consent of the government. The company's mine and factory were manned in part by prisoners of war. They lived in a camp controlled by the Japanese army. Though petitioner took orders from the military, he was not a soldier in the armed services; he wore insignia on his uniform distinguishing him as nonmilitary personnel; he had no duties to perform in relation to the prisoners, except those of an interpreter. His employment was as an interpreter for the Oeyama Nickel Industry Co., Ltd., a private company. The regulation of the company by [343 U.S. 717, 728] the Japanese government, the freezing of its labor force, the assignment to it of prisoners of war under military command were incidents of a war economy. But we find no indication that the Oeyama Company was nationalized or its properties seized and operated by the government. The evidence indicates that it was a part of a regimented industry; but it was an organization operating for private profit under private management. We cannot say that petitioner's status as an employee of a private company was changed by that regimentation of the industry.

It would require a broad and loose construction of "office, post, or employment under the government of a foreign state" as those words are used in 401 (d) to hold that petitioner had sacrificed his American citizenship by accepting or performing the duties of interpreter. . We are thinking not only of this case but of other cases to which 401 (d) is applicable. We are reluctant to resolve the ambiguity contained in 401 (d) so as to provide treacherous ground for the loss of the rights of citizenship by the Nisei. As the Court said in Perkins v. Elg, supra, p. 337, "Rights of citizenship are not to be destroyed by an ambiguity." It would be harsh indeed to hold that a Nisei, marooned in Japan when World War II broke out, would be expatriated merely by working for a private company whose business was supervised and whose labor supply was controlled by the Japanese government in time of war. That would give 401 (d) a broad, pervasive sweep. Section 401 (d) not only makes acceptance of "any office, post, or employment under the government of a foreign state" the basis of expatriation; it also makes "performing the duties" of any such office, post, or employment a ground for expatriation. One who was drafted for such service would be included, as well as one who volunteered. In time of war that would bring most employees of private companies within the danger [343 U.S. 717, 729] zone in view of the hold which a war economy places on industry and the supervision and control which it asserts. We therefore incline to a construction of the words "under the government of a foreign state" to mean the relationship that public employees have with their government or with the bureaus or corporations which are government owned and controlled. Support for that narrower meaning is found in the legislative history. 3 [343 U.S. 717, 730]

Section 402 4 creates a presumption 5 that a national in Kawakita's category who remains six months or longer within a foreign state of which he or either of his parents shall have been a national shall be presumed to have expatriated himself under 401 (c) or (d). Section 402 does not enlarge 401 (c) or (d); it creates a rebuttable presumption of expatriation; and when it is shown that the citizen did no act which brought him under 401 (c) or (d), the presumption is overcome. On that showing the person never loses his American nationality. See Dos Reis v. Nicolls, 161 F.2d 860, 868. In other words, once it was shown that petitioner was not expatriated under 401 (c) or (d), the force of 402 was spent.

Section 408 provides, "The loss of nationality under this Act shall result solely from the performance by a national of the acts or fulfillment of the conditions specified in this Act." The District Court therefore charged [343 U.S. 717, 731] the jury that the only methods of expatriation are those contained in 401. Petitioner claims that charge was error. He argues that 408 is applicable only to the loss of nationality "under this Act" and that there are other methods of losing it. He refers to R. S. 1999, 8 U.S.C. 800, which survived the Nationality Act of 1940 and is not part of it, and which proclaims the right of expatriation as "a natural and inherent right of all people." 6 We do not undertake to resolve the question for the reason that it is not squarely presented. On this issue of expatriation, petitioner tenders no question of fact which was inadmissible under 401. Petitioner merely says that "by his conduct" he had "expatriated himself from United States citizenship." But he has failed to show that that issue is narrower than or different from the issue presented on this record under 401 (b) - the declaration of allegiance to Japan. As we have indicated, the major factual problem on the issue of expatriation revolved around the entry of petitioner's name in the Koseki. All of the other conduct referred to, including the paying of respects to the Emperor and the expressions of hostility to the United States, were relevant and admissible on that issue. If it could not in the eyes of the jury make the [343 U.S. 717, 732] signing of the Koseki and the changes in the registration that followed that event tantamount to renunciation under 401 (b), it hardly could do so standing alone. Hence, if there was error in the charge, it was harmless.

That conclusion is reinforced by another aspect of the case. Petitioner testified that he believed when he signed the Koseki that he lost his American citizenship. He testified that during the period charged in the indictment he believed that he was no longer an American citizen. The District Court charged that if the jury found (1) defendant had committed any overt act charged in the indictment and (2) he was an American citizen, yet they should not convict if they further found that at the time "the defendant honestly believed that he was no longer a citizen of the United States" since in that event he could not have committed the act with treasonable intent. Under this charge the belief of petitioner that he had renounced his American citizenship was sufficient to acquit if the jury believed him. His belief could not have been made more relevant to the issue of guilt if it had been admitted as proof of expatriation separate and apart from the other grounds specified in 401 of the Act. Hence even if we assume, arguendo, that the court was wrong in charging that 408 made the grounds specified in 401 exclusive, the error was harmless.

Second. Petitioner contends that a person who has a dual nationality can be guilty of treason only to the country where he resides, not to the other country which claims him as a national. More specifically, he maintains that while petitioner resided in Japan he owed his paramount allegiance to that country and was indeed, in the eyes of our law, an alien enemy.

The argument in its broadest reach is that treason against the United States cannot be committed abroad or in enemy territory, at least by an American with a dual nationality residing in the other country which [343 U.S. 717, 733] claims him as a national. The definition of treason, however, contained in the Constitution contains no territorial limitation. "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. . . ." Art. III, 3. A substitute proposal containing some territorial limitations was rejected by the Constitutional Convention. See 2 Farrand, The Records of the Federal Convention, pp. 347-348. The Act of April 30, 1790, 1 Stat. 112, which was passed by the first Congress defining the crime of treason likewise contained no territorial limitation; and that legislation is contained in substantially the same form in the present statute. 18 U.S.C. (Supp. IV) 2381. 7 We must therefore reject the suggestion that an American citizen living beyond the territorial limits of the United States may not commit treason against them. See Chandler v. United States, 171 F.2d 921, 929-930; Burgman v. United States, 88 U.S. App. D.C. 184, 185, 188 F.2d 637, 640.

One who has a dual nationality will be subject to claims from both nations, claims which at times may be competing or conflicting. The nature of those claims has recently been stated as follows:

     "A person with dual nationality may be subjected to taxes by both states of which he is a national. He is not entitled to protection by one of the two states of which he is a national while in the territorial jurisdiction of the other. Either state not at war with the other may insist on military service when the person is present within its territory. In time [343 U.S. 717, 734] of war if he supports neither belligerent, both may be aggrieved. If he supports one belligerent, the other may be aggrieved. One state may be suspicious of his loyalty to it and subject him to the disabilities of an enemy alien, including sequestration of his property, while the other holds his conduct treasonable." Orfield, The Legal Effects of Dual Nationality, 17 Geo. Wash. L. Rev. 427, 429.

Dual nationality, however, is the unavoidable consequence of the conflicting laws of different countries. See 3 Hackworth, supra, pp. 352 et seq. One who becomes a citizen of this country by reason of birth retains it, even though by the law of another country he is also a citizen of it. He can under certain circumstances be deprived of his American citizenship through the operation of a treaty or an act of Congress; he can also lose it by voluntary action. See Perkins v. Elg, supra, p. 329. But American citizenship, until lost, carries obligations of allegiance as well as privileges and benefits. For one who has a dual status the obligations of American citizenship may at times be difficult to discharge. An American who has a dual nationality may find himself in a foreign country when it wages war on us. The very fact that he must make a livelihood there may indirectly help the enemy nation. In these days of total war manpower becomes critical and everyone who can be placed in a productive position increases the strength of the enemy to wage war. Of course, a person caught in that predicament can resolve the conflict of duty by openly electing one nationality or the other and becoming either an alien enemy of the country where he resides or a national of it alone. Yet, so far as the existing law of this country is concerned, he need not make that choice but can continue his dual citizenship. It has been stated in an administrative ruling of the State Department that a person with a dual citizenship who lives abroad in the other country claiming him [343 U.S. 717, 735] as a national owes an allegiance to it which is paramount to the allegiance he owes the United States. 8 That is a far cry from a ruling that a citizen in that position owes no allegiance to the United States. Of course, an American citizen who is also a Japanese national living in Japan has obligations to Japan necessitated by his residence there. There might conceivably be cases where the mere nonperformance of the acts complained of would be a breach of Japanese law. He may have employment which requires him to perform certain acts. The compulsion may come from the fact that he is drafted for the job or that his conduct is demanded by the laws of Japan. He may be coerced by his employer or supervisor or by the force of circumstances to do things which he has no desire or heart to do. That was one of petitioner's defenses in this case. Such acts - if done voluntarily and willfully - might be treasonable. But if done under the compulsion of the job or the law or some other influence, those acts would not rise to the gravity of that offense. The trial judge recognized the distinction in his charge when he instructed the jury to acquit petitioner if he did not do the acts 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." In short, petitioner was held accountable by the jury only for performing acts of hostility toward this country which he was not required by Japan to perform.

If he can retain that freedom and still remain an American citizen, there is not even a minimum of allegiance which he owes to the United States while he resides in the enemy country. That conclusion is hostile to the concept of citizenship as we know it, and it must be rejected. One who wants that freedom can get it by [343 U.S. 717, 736] renouncing his American citizenship. He cannot turn it into a fair-weather citizenship, retaining it for possible contingent benefits but meanwhile playing the part of the traitor. An American citizen owes allegiance to the United States wherever he may reside.

Circumstances may compel one who has a dual nationality to do acts which otherwise would not be compatible with the obligations of American citizenship. An American with a dual nationality who is charged with playing the role of the traitor may defend by showing that force or coercion compelled such conduct. The jury rejected that version of the facts which petitioner tendered. He is therefore forced to maintain that, being a national and a resident of Japan, he owed no allegiance to the United States even though he was an American citizen. That proposition we reject.

Third. Article III, 3 of the Constitution provides, "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."

So far as material here, the crime thus consists of two elements - adhering to the enemy; and giving him aid and comfort. See Cramer v. United States, 325 U.S. 1, 29 . One may think disloyal thoughts and have his heart on the side of the enemy. Yet if he commits no act giving aid and comfort to the enemy, he is not guilty of treason. He may on the other hand commit acts which do give aid and comfort to the enemy and yet not be guilty of treason, as for example where he acts impulsively with no intent to betray. Two witnesses are required not to the disloyal and treacherous intention but to the same overt act. See Cramer v. United States, supra, pp. 30, 31. [343 U.S. 717, 737]

The jury found petitioner guilty of eight overt acts. 9 One overt act alone, properly proved, would be sufficient to sustain the conviction, all other elements of the crime of treason being established. Since the jury returned special verdicts and findings as to each of the eight overt acts, we could not upset the judgment of conviction, unless all eight were insufficient. See Haupt v. United States, 330 U.S. 631, 641 . We conclude, however, that each of the eight overt acts was properly proved.

Each of these related to his treatment of American prisoners of war at the Oeyama camp. These prisoners were mostly from Bataan and were in weakened condition on their arrival. All were below normal weight; many of them were suffering from disease; most of them were unfit for work. They were assigned to work either in the factory or at the mine of the Oeyama Company. They were under the supervision of the Japanese army. Petitioner was a civilian interpreter, as we have said. There was evidence that he had no authority and no duties, as respects the prisoners, except as an interpreter. Yet the record shows a long, persistent, and continuous course of conduct directed against the American prisoners and going beyond any conceivable duty of an interpreter.

After the American prisoners arrived, the Japanese authorities raised the quota of ore which they were expected to produce each day. The quota had been between 120 and 165 carloads a day; now it was increased to 200. A part of petitioner's conduct was swearing at the prisoners, beating them, threatening them, and punishing them for not working faster and harder, for failing to fill their quotas, for resting, and for slowing down.

There were two overts acts in this category. Overt act (a) as alleged in the indictment and developed at the [343 U.S. 717, 738] trial was that in May, 1945, petitioner kicked a prisoner named Toland who was ill, because he slowed down in lifting pieces of ore rocks from the tracks at the factory to keep the tracks clear. Toland had suffered a dizzy spell and slowed down. Petitioner told him to get to work and thereupon kicked him, causing him to fall flat and to cut his face and hand. Another prisoner wanted to pick Toland up; but petitioner would not let him. Overt act (j) as alleged in the indictment and developed at the trial was that in May, 1945, petitioner struck a prisoner named Armellino, who was weak and emaciated, in order to make him carry more lead. Armellino had been carrying only one bucket of lead. Petitioner thereupon struck him, causing him to fall. When he got up, petitioner forced him to carry two buckets, pushing him along.

Each of these acts was aimed at getting more work out of the prisoners - work that produced munitions of war for the enemy, or so the jury might have concluded. The increased efforts charged in overt acts (a) and (j) were small; the contribution to the war effort of the enemy certainly was minor, not crucial. Harboring the spy in Haupt v. United States, supra, was also insignificant in the total war effort of Germany during the recent war. Yet it was a treasonable act. It is the nature of the act that is important. The act may be unnecessary to a successful completion of the enemy's project; it may be an abortive attempt; it may in the sum total of the enemy's effort be a casual and unimportant step. But if it gives aid and comfort to the enemy at the immediate moment of its performance, it qualifies as an overt act within the constitutional standard of treason. As Chief Justice Marshall said in Ex parte Bollman, 4 Cranch 75, 126, "If war be actually levied, . . . all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general [343 U.S. 717, 739] conspiracy, are to be considered as traitors." These two overt acts, if designed to speed up Japan's war production, plainly gave aid and comfort to the enemy in the constitutional sense.

The other overt acts were acts of cruelty to American prisoners of war.

Overt act (b) as alleged in the indictment and developed at the trial was that one Grant, an American prisoner, had been seen by a Japanese sentry coming out of the Red Cross storeroom with a package of cigarettes. He was thereupon thrown into a cesspool by a Japanese sergeant, ordered out, and knocked back repeatedly. While Grant was in the cesspool, petitioner hit him over the head with a wooden pole or sword, told him to squat down, and tried to force him to sit in the water. When Grant was taken from the pool, he was blue, his teeth were chattering, and he could not straighten up.

Overt act (c) as alleged in the indictment and developed at the trial was that in December, 1944, petitioner and Japanese guards lined up about 30 American prisoners and, as punishment for making articles of clothing out of blankets, struck them and forced them to strike each other. Petitioner hit prisoners who, he thought, did not hit each other hard enough.

Overt act (d) as alleged in the indictment and developed at the trial was that petitioner imposed cruelty on O'Connor, an American prisoner, who was sick and had stolen Red Cross supplies. He was knocked into the cesspool by Japanese soldiers and then repeatedly hit and thrown back into the pool by them and by petitioner, with the result that O'Connor temporarily lost his reason.

Overt act (g) as alleged in the indictment and developed at the trial was that in July or August, 1945, a Japanese sergeant compelled a work detail of American prisoners, who had returned early, to run around a quadrangle. Petitioner forced two of the Americans, who [343 U.S. 717, 740] were unable to run fast because of illness, to run the course an additional four and six times respectively. Petitioner threw pebbles and sod at them to make them run faster.

Overt act (i) as alleged in the indictment and developed at the trial was that in December, 1944, petitioner ordered one Carter, an American prisoner of war, to carry a heavy log up an ice-covered slope at the mine. When Carter slipped, fell, and was injured, petitioner although he knew Carter was badly hurt and needed attention delayed his removal back to camp for approximately five hours.

Overt act (k) as alleged in the indictment and developed at the trial was that in the spring or summer of 1945 petitioner participated in the inhuman punishment of one Shaffer, an American prisoner of war. Shaffer was forced to kneel on bamboo sticks on a platform with a bamboo stick inside the joints of his knees, and to keep his arms above his head holding a bucket of water and later a log. When Shaffer became tired and bent his elbows, petitioner would strike him. When Shaffer leaned over and spilled some water, petitioner would take the bucket, throw the water on Shaffer, and have the bucket refilled. Then Shaffer was required to hold up a log. It fell on him, causing a gash. After the wound was treated, petitioner placed bamboo sticks on the ground and once more made Shaffer kneel on them and go through the same performance.

As we have said, petitioner was not required by his employment to inflict punishment on the prisoners. His duties regarding the prisoners related solely to the role of interpreter. His acts of cruelty toward the prisoners were over and beyond the call of duty of his job, or so the jury might have found. We cannot say as a matter of law that petitioner did these acts under compulsion. He seeks, however, to find protection under Japanese municipal law. It is difficult to see how that argument helps [343 U.S. 717, 741] petitioner. The source of the law of treason is the Constitution. If an American citizen is a traitor by the constitutional definition, he gains no immunity because the same acts may have been unlawful under the law of the country where the acts were performed. Treason is a separate offense; treason can be committed by one who scrupulously observes the laws of other nations; and his acts may be nonetheless treasonable though the same conduct amounts to a different crime. It would take a long chapter to relate the numerous acts that supplement the crime of treason and build different and lesser crimes out of the same or related acts. See Cramer v. United States, supra, p. 45. But no matter the reach of the legislative power in defining other crimes, the constitutional requirements for treason remain the same. The crime of treason can be taken out of the Constitution by the processes of amendment; but there is no other way to modify or alter it.

The jury found that each of the six overt acts of cruelty actually gave aid and comfort to the enemy. We agree. These were not acts innocent and commonplace in appearance and gaining treasonable significance only by reference to other evidence, as in Cramer v. United States, supra. They were acts which showed more than sympathy with the enemy, more than a lack of zeal in the American cause, more than a breaking of allegiance to the United States. They showed conduct which actually promoted the cause of the enemy. They were acts which tended to strengthen the enemy and advance its interests. These acts in their setting would help make all the prisoners fearful, docile, and subservient. Because of these punishments the prisoners would be less likely to be troublesome; they would need fewer guards; they would require less watching. These acts would tend to give the enemy the "heart and courage to go on with the war." That was the test laid down by Lord Chief Justice Treby [343 U.S. 717, 742] in Trial of Captain Vaughan, 13 How. St. Tr. 485, 533. It is a sufficient measure of the overt act required by the Constitution. Cramer v. United States, supra, pp. 28, 29, 34. All of the overt acts tended to strengthen Japan's war efforts; all of them encouraged the enemy and advanced its interests.

Petitioner contends that the overt acts were not sufficiently proved by two witnesses. Each witness who testified to an overt act was, however, an eye-witness of the commission of that act. They were present and saw or heard that to which they testified. In some instances there was a variance as to details. Thus overt act (b) was testified to by thirteen witnesses. They did not all agree as to the exact date when the overt act occurred, whether in April, May, or June, 1945. But they all agreed that it did take place, that Grant was the victim, and that it happened between 3 and 6 o'clock in the afternoon; and most of them agreed that petitioner struck Grant. The Court of Appeals concluded, and we agree, that the disagreement among the witnesses was not on what took place but on collateral details. "While two witnesses must testify to the same act, it is not required that their testimony be identical." Haupt v. United States, supra, p. 640. There is no doubt that as respects each of the eight overt acts the witnesses were all talking about the same incident and were describing the same conduct on petitioner's part.

Fourth. Petitioner challenges the sufficiency of the evidence to show the second element in the crime of treason - adhering to the enemy. The two-witness requirement does not extend to this element. Cramer v. United States, supra, p. 31. Intent to betray must be inferred from conduct. It may be inferred from the overt acts themselves (Cramer v. United States, supra, p. 31), from the defendant's own statements of his attitudes toward [343 U.S. 717, 743] the war effort (Haupt v. United States, supra, p. 642), and from his own professions of loyalty to Japan.

Evidence of what petitioner said during this period concerning the war effort and his professions of loyalty, if believed by the jury, leaves little doubt of his traitorous intent. "It looks like MacArthur took a run-out powder on you boys"; "The Japanese were a little superior to your American soldiers"; "You Americans don't have no chance. We will win the war." "Well, you guys needn't be interested in when the war will be over because you won't go back; you will stay here and work. I will go back to the States because I am an American citizen"; "We will kill all you prisoners right here anyway, whether you win the war or lose it. You will never get to go back to the States"; "I will be glad when all of the Americans is dead, and then I can go home and live happy." These are some of the statements petitioner made aligning himself with the Japanese cause. There was also evidence that he said that the prisoners would never go back to their wives and their families, that Japan would win the war and that he would return to the United States as an important man, that Japan would win if it took 100 years, that the Japanese were superior to the Americans and if the American Army had Japanese officers, they could whip the world, that there were more American boys who would be available to do the work, if the present prisoners were too weak to work. And on the day the work at the camp ended after Japan surrendered he commented, "You American bastards will be well fed" or "you will be getting fat from now on."

There was evidence that in May or June, 1945, petitioner said, "It don't make a damn to me which way the war goes because I am going back to the States anyway." At the trial he said he felt no loyalty to the United States during the period from March 1943 to December 1945, [343 U.S. 717, 744] and that he intended to do everything he could to help Japan. He also testified that the first loyalty he felt to the United States, following the entry of his name in the Koseki, was when he applied for registration as an American citizen in December, 1945, and once more took the oath of allegiance. Yet we have already seen that in connection with that application he conceded his dual nationality and the continuance of his American citizenship during his entire stay in Japan.

If the versions of petitioner's words and conduct at the Oeyama camp, testified to by the various witnesses, were believed, the traitorous intent would be shown by overwhelming evidence. Petitioner indeed conceded at the trial that he felt no loyalty to the United States at this time and had thrown his lot in with Japan. Yet at the end of the war he had taken the oath of allegiance to the United States, claiming he had been a United States citizen all along. The issue of intent to betray, like the citizenship issue, was plainly one for the jury to decide. We would have to reject all the evidence adverse to petitioner and accept as the truth his protestations when the shadow of the hangman's noose was on him in order to save him from the finding that he did have the intent to betray. That finding of the jury was based on its conclusion that what he did was done willingly and voluntarily and not because the duty of his office or any coercion compelled him to do it. The finding that he had an uncoerced and voluntary purpose was amply supported by the evidence. Therefore the second element of the crime of treason was firmly established.

Other alleged errors are pressed upon us. But they are either insubstantial or so adequately disposed of by the Court of Appeals that we give them no notice, with one exception and that relates to the severity of the sentence. At the time of these offenses Congress had provided that one who is guilty of treason "shall suffer death; or, at [343 U.S. 717, 745] the discretion of the court, shall be imprisoned not less than five years and fined not less than $10,000, . . . and every person so convicted of treason shall, moreover, be incapable of holding any office under the United States." 10 The trial judge imposed the death sentence. The argument is that that sentence was so severe as to be arbitrary. It was, however, within the statutory limits. Whether a sentence may be so severe and the offense so trivial that an appellate court should set it aside is a question we need not reach. The flagrant and persistent acts of petitioner gave the trial judge such a leeway in reaching a decision on the sentence that we would not be warranted in interfering. Cf. Blockburger v. United States, 284 U.S. 299, 305 .

Affirmed.

MR. JUSTICE FRANKFURTER, not having heard the argument, owing to illness, took no part in the disposition of the case.

MR. JUSTICE CLARK took no part in the consideration or decision of the case.

Footnotes

[ Footnote 1 ] See Blakemore, Recovery of Japanese Nationality as Cause for Expatriation in American Law, 43 Am. J. Int'l L. 441, 449.

[ Footnote 2 ] For discussions of the subject of dual nationality, see Talbot v. Jansen, 3 Dall. 133, 164-165, 169; Inglis v. Trustees of the Sailor's Snug Harbour, 3 Pet. 99, 126, 157, 161; Shanks v. Dupont, 3 Pet. 242, 247, 249; Perkins v. Elg, 307 U.S. 325, 329 , 339, 344-345; Hirabayashi v. United States, 320 U.S. 81, 97 -98; Savorgnan v. United States, 338 U.S. 491, 500 ; United States v. Husband, 6 F.2d 957, 958; Dos Reis ex rel. Camara v. Nicolls, 161 F.2d 860; Attorney General v. Ricketts, 165 F.2d 193; Uyeno v. Acheson, 96 F. Supp. 510, 514-515; Tomasicchio v. Acheson, 98 F. Supp. 166; Kondo v. Acheson, 98 F. Supp. 884, 886-887; Hamamoto v. Acheson, 98 F. Supp. 904, 905; Boissonnas v. Acheson, 101 F. Supp. 138, 147, 151-152; Di Girolamo v. Acheson, 101 F. Supp. 380, 382; Coumas v. Superior Court, 31 Cal. 2d 682, 192 P.2d 449; Doyle v. Ries, 208 Minn. 321, 293 N. W. 614; Ludlam v. Ludlam, 26 N. Y. 356, 376-377; Lynch v. Clarke, 1 Sandf. Ch. (N. Y.) 583, 659, 677-679; State ex rel. Phelps v. Jackson, 79 Vt. 504, 520, 65 A. 657, 661; Borchard, Diplomatic Protection of Citizens Abroad, 575-591; Flournoy, Dual Nationality and Election, 30 Yale L. J. 545, 693; Hackworth, Digest of International Law, Vol. III, pp. 352-377; Hyde, International Law (2d ed.), Vol. 2, pp. 1131-1143; Moore, International Law Digest, Vol. III, pp. 518-551; Nielsen, Some Vexatious Questions Relating to Nationality, 20 Col. L. Rev. 840; Oppenheim, International Law (7th ed., Lauterpacht), Vol. I, pp. 606-610; Orfield, The Legal Effects of Dual Nationality, 17 Geo. Wash. L. Rev. 427; Van Dyne, Citizenship of the United States, 24, 34.

[ Footnote 3 ] The explanatory comments on the draft code of the Nationality Laws transmitted with the message of the President on June 13, 1938, stated the following as respects 401 (c) and (d):

     "With reference to subsections (c) and (d) attention is called to the following statement in an opinion of Attorney General Williams, dated August 20, 1873 (14 Op. Atty. Gen. 295, 297):

     "'My opinion . . . is that, in addition to domicile and intent to remain, such expressions or acts as amount to a renunciation of United States citizenship and a willingness to submit to or adopt the obligations of the country in which the person resides, such as accepting public employment, engaging in military services, etc., may be treated by this Government as expatriation, without actual naturalization. Naturalization is without doubt the highest, but not the only evidence of expatriation.'" (Italics added.) Codification of the Nationality Laws of the United States, 76th Cong., 1st Sess., House Committee Print, p. 67.

Mr. Flournoy, speaking for the State Department at the hearings (see Hearings on H. R. 6127, H. R. 9980, 76th Cong., 1st Sess., pp. 131-132), described the provision that became 401 (d) in the following way:

     "It seems to me the object of that is fairly clear. A foreign state has some position in its government which can be held only by its citizens and an American accepts such a position and serves the foreign state and loses his American nationality. That is intended particularly for cases of persons of dual nationality, and there are not a great many of those cases. There are not many thousands of them. . . . This is intended particularly for those cases of dual nationality. Say an American is born here and he goes to and is living in Mexico and he takes a position in the Mexican Government, that is regarded as equivalent to a choice of his citizenship and he loses his American nationality." (Italics added.)

[ Footnote 4 ] Section 402 reads as follows:

     "A national of the United States who was born in the United States or who was born in any place outside of the jurisdiction of the United States of a parent who was born in the United States, shall be presumed to have expatriated himself under subsection (c) or (d) of section 401, when he shall remain for six months or longer within any foreign state of which he or either of his parents shall have been a national according to the laws of such foreign state, or within any place under control of such foreign state, and such presumption shall exist until overcome whether or not the individual has returned to the United States. Such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, or to an immigration officer of the United States, under such rules and regulations as the Department of State and the Department of Justice jointly prescribe. However, no such presumption shall arise with respect to any officer or employee of the United States while serving abroad as such officer or employee, nor to any accompanying member of his family."

[ Footnote 5 ] Section 402 was adopted "upon the special recommendation of the War Department with a view to checking the activities of persons regarded as prospective 'fifth columnists.'" 86 Cong. Rec. 11948.

[ Footnote 6 ] R. S. 1999, 8 U.S.C. 800 provides:

     "Whereas 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 whereas in the recognition of this principle this Government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: 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."

[ Footnote 7 ] "Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined not less than $10,000; and shall be incapable of holding any office under the United States."

[ Footnote 8 ] Abstract of Passport Laws and Precedents, Passport Division Office Instructions, Code No. 1.6, May 19, 1941.

[ Footnote 9 ] The form of interrogatory which the jury answered affirmatively to each of the eight overt acts is printed in United States v. Kawakita, 96 F. Supp. 824, 851-852.

[ Footnote 10 ] 18 U.S.C. (1946 ed.) 2. For the present version see note 7, supra.

MR. CHIEF JUSTICE VINSON, with whom MR. JUSTICE BLACK and MR. JUSTICE BURTON join, dissenting.

The threshold question in this case is whether petitioner renounced his United States citizenship and became expatriated by reason of acts committed in Japan during the War. Prior to 1943, petitioner was regarded by Japanese authorities as an enemy alien. In March, 1943, petitioner gave official notice of his allegiance to Japan by having his name registered in the family Koseki. Thereafter, petitioner had his name removed from police [343 U.S. 717, 746] records as an enemy alien, secured employment subject to military control at a munitions plant, traveled to China on a Japanese passport, and prayed daily for the Emperor's health and a Japanese victory. These facts and petitioner's heinous treatment of American prisoners of war, recited in the opinion of the Court, convince us that petitioner, for over two years, was consistently demonstrating his allegiance to Japan, not the United States. As a matter of law, he expatriated himself as well as that can be done.

Petitioner's statements that he was still a citizen of the United States - made in order to obtain a United States passport after Japan had lost the War - cannot restore citizenship renounced during the War. Because we conclude, on this record, that petitioner's whole course of conduct was inconsistent with retention of United States citizenship, we would reverse petitioner's conviction of treason against the United States. [343 U.S. 717, 747]