
    FIX v. UNITED STATES.
    No. 12094.
    United States Court of Appeals Ninth Circuit.
    Aug. 5, 1949.
    
      Eugene H. O’Donnell and Charles Schroth, San Francisco, Cal., lor appellant.
    Frank j. Hennessy, U. S. Atty., and Edgard R. Bonsall, Asst. U. S. Atty., San Francisco, Cal., for appellee.
    Before DENMAN, Chief ' Judge, and ORR and POPE, Circuit Judges.
   POPE, Circuit Judge.

This is an appeal from a judgment of denaturalization. The proceedings and issues are the same as those in the case of Bechtel (Bechtel v. United States, 9 Cir., 176 F.2d 741), a general • summary of the district court’s findings is set forth in that court’s opinion. United States v. Holtz, 54 F.Supp. 63.

Fix was born in Germany.- In 1928, when he was 23, he migrated to the United States. He filed his declaration to become a citizen in 1929, filed his petition for citizenship September 27, 1935, and was admitted to citizenship by an order of the United States District Court at San Francisco on January 6, 1936.

The Government’s case against him disclosed the following facts. Prior to his naturalization Fix attended a few meetings of the German-American Bund, or of its predecessor organization, the Friends of New Germany; but he 'did not join either. In 1937 he made a trip to Germany where he stayed about, six months. On his return to this country, he stated that on this trip he had become sympathetic to the “Party” in Germany, apparently ref erring, to the Nazi party. In 1938 ,he joined'the Bund, but he claimed to have quit it alter about three months. ■

A number of witnesses - told of unpatriotic, disloyal or pro-German remarks made by Fix. The earliest of these occurred in late 1937, shortly after he had returned from his visit to Germany. At that time he told a Mr. Howard, who had been a witness for Fix at his naturalization proceedings, that Hitler was doing a fine job" for his people, ‘and that “we may need a Hitler here to change our conditions.” He told the witness, who was a flour salesman, and who sold flour to Fix, who was a baker, that he did not want any Jewish salesmen waiting on him. The witness thought that Fix had been a worthy candidate for citizenship when he was naturalized, but that his trip, to Germany had changed him.

In 1940 Fix roomed with a Mrs. Levick. He had in his room a German army rifle, a German tear gas gun, and a loaded .22. rifle. While he roomed there he received postal card notices of Bund meetings, and some newspapers printed in German. He told his,landlady that Germany was going ,to take over America, that the people’of German descent here were arpied and ready to take over at a given signal, arid" when they did they would break the unions, that they were going to dispose of the Jewish people and General Mosley would then be the head man, the dictator in this country. After he left, and while his effects were still in his rooin, the witness played one of the- records which he had in his room on his record-player. It was a German march, and in the chorus the persons making the recording were singing “H-cil Hitler.”

After February, 1942, Fix had employed one William McClure in his bakery. To McClure he said " the bombing of Pearl Harb'or served’ this country just right, that President Roosevelt and his cabinet Were warmongers, that the soldiers he saw marching past were going off to slaughter, that he would not buy any war bonds, that Germany would win the war, and the bonds-would be no good and the gold stored at Fort Knox would be melted into German marks. The witness said -that Fix, with much profanity, refused to cooperate, with government rationing , and salvage programs, and that Fix told him that if called for army service he would refuse to serve. The witness also related anti-Jewish remarks made by Fix , and reported these statements to the FBI.

In 1943 Fix had gotten into a controversy with a Mrs. Lally, a state humane officer, because he had shot' a dog. In the course of a series of arguments about the matter, during which Mrs. Lally call-ed Fix “a dirty German rat”, Fix told her that Hitler would take over this country and then she “would be taken care of”.-

To a Captain Montgomery,TJnit'e'd States Army, retired, Fix said some time after Peal Harbor, that if President 'Roosevelt “had kept his big mouth shut the United States would not have been in the-war.”

The Federal Bureau of Investigation obtained from Fix a statement in writing, the material portion' of which was as follows: “I was born January 26, 1905, in Germany, entered the United States in 1928 and was naturalized at San Francisco in 1936.

“From 1934 to 1937, when I took a trip to Germany, I, attended one or two affairs of the Friends of New Germany and may have made a donation to the organization.

:“From the time I returned from Germany in the later part of 1937 until the later part of 1939 I attended affairs of the German-American Bund at least on .the average of twice a month. At these- affairs I heard numerous lectures on the merits of National Socialism. , I recall, seeing the German swastika flag'displayed, the, outstretched arm :salute given, and the Horst Wessel Lieb sung. ¡ I have read many times the German-Americap Bund newspaper, the Deutsches- Weckruf and Beobachter, and the Free American, which was distributed at meetings. I recall seeing the Ordnungs Dienst in uniform. I recall .seeing Herman Schwinn and Fritz Kuhn, national leaders, .at meetings in San Francisco and Los Angeles. Lattended the Sonnenwendefeier at Dublin. Canyon June, 1938, when the swastika in tjxe hillside was burned.

“In September, 1939, at the request of Herbert Landes- and Hartwig Reese, I drove my car to Los Angeles and took several-San Francisco Bund members to the Gautag' West (Western District Convention). I recall that George- Ordemann also drove his car on this occasion. I recall the following Bund members attending -the convention with me; Gottfried Karl Hein, George Ordemann, Erwin Mast, Hartwig Reese, Alfred Boehme and Herbert Landes. ■ •

“At th'e conv-entión a groüp telegram was sent to senators and congressmen in Washington, urging' that the United States remain neutral in -the European conflict. I may have subscribed to this telegram and received a reply back from Senator Hiram W. Johnson, addressed to me personally.

“According - to my best recollection the. persons who rode with me to Los Angeles paid-me for transportation out of their own funds.”

It was shown that Fix had been arrested and convicted twice, once for being drunk and disorderly, and once for assault and battery, which latter charge grew out of some encounter with his divorced wife.

Witnesses called ,by Fix testified as to sundry acts performed by him in aid of the war- effort, -to his good reputation for truth, honesty and integrity, and -testified that although they had frequently had conversations with him,-they had never heard him make any statements against this country or its part in the war with Germany. Fix himself denied many of -the statements attributed to him by the government witnesses. Others he attempted to explain away, not always satisfactorily. He claimed to have quit the Bund after about three months’ membership, because he could never discover how the Bupd funds were being used. He asserted he had joined originally for business reasons, because the Bund purchased bakery goods from him for use as refreshments at their meetings.

It appears that as the war progressed, and particularly after he knew he was under investigation, Fix made special effort to appear loyal and patriotic, even going to the length of inserting paid advertising in- the newspapers urging public support for war enterprises, such as the Red Cross, and war bond drives.

Accepting, as did the trial judge, all of the Government’s evidence at its full face value, and disregarding all that Fix had to offer, we 'yet find it impossible to conclude that it was proven by “clear, unequivocal, and convincing” evidence, which does not leave “the issue in doubt”, that Fix took a false oath when he was admitted to citizenship. -While it appears that he attended some Bund meetings before he was naturalized,- (he did not join the-Bund until 1938), his general lack of intelligence, mentioned in the opinion of the district court, stands out in the record. As in the case of Bechtel, his apparent ignorance gives rise to serious doubt as to whether Fix had the capacity to understand the “leadership principle” or any other of the Bund philosophy.

On the other hand,, the remarks he made to various witnesses indicate that when he made them he was thoroughly disloyal and unpatriotic. He hoped and believed that Germany would win the war. But as pointed out by the court below, these statements all followed his return from his 1937 trip to Germany where he may have been, “inoculated with the Nazi virus.”

The only way in which it may be said that there was any evidence whatever of Fix’s mental attitude on January 6, 1936, when he took the oath, is by projecting backward the evidence of his later disloyal attitude, and making the inference that his earlier mental feeling was the same. In the Bechtel case we have noted that the dangers of reliance upon such evidence were stated in Baumgartner v. United States, 322 U.S. 665, at page 675, 64 S.Ct. 1240, 88 L.Ed. 1525. The language of Knauer v. United States, 328 U.S. 654, at 659, 66 S.Ct. 1304, at page 1307, 90 L.Ed. 1504, seems particularly applicable here: “Human ties are not easily broken. Old social or cultural loyalties may still exist, though basic allegiance is transferred here. The fundamental question is whether the new citizen still takes his orders from, or owes his allegiance to, a foreign chancellory. Far more is required to establish that fact than a showing that social and cultural ties remain. And even political utterances, which might be some evidence of a false oath if they clustered around the date of naturalization, are more and more unreliable as evidence' of the perjurious falsity of the oath the further they are removed from the date of naturalization.”

Here, these disloyal utterances were not only long subsequent to Fix’ naturalization, but they are explainable by reference to the intervening trip to Germany. As between the two possible views, one that Fix felt this way when hé took the oath, and ¡¿lie other that he picked up these ideas on his trip, we cannot say that the former is established by the required proof, or is shown to exist, free from doubt, particular-' ly in view of the fact that two of the witnesses on whose testimony the Government' appears to rely most strongly testified that' Fix’ attitude in these respects had changed after his trip to Germany.

The issue was stated in the trial court’s opinion as follows, 54 F.Supp. 86: “Of course, if his allegiance to the United States in 1936 was unequivocal, then, even though he subsequently as a result of his visit to Germany in 1937, turned Hitlerite, he cannot be denaturalized. If on the other hand the evidence clearly shows a mental reservation as to allegiance in 1936, he should be denaturalized.”

In our view, this clear showing of a mental reservation as to allegiance in 1936 is lacking here.

The! judgment is reversed.  