Full opinion text
MATHES, District Judge. 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), (1) 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 Overt act (m) was withdrawn upon the Government’s motion at the close of the case in chief; overt act (n) was ordered withdrawn from consideration by the jury upon defendant’s motion for acquittal pursuant to Rule 29(a) Fed.Rules Crim.Proc. 18 U.S.C.A. The defendant now moves for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 29(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: “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 accordane 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 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 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; "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 domi■ciled 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 § 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 instructions on this phase of the case were as follows: “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. “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 Ibeen 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 “ ‘(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 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 iby 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 ’ § 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 § 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 iby a national of the acts’ specified in § 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, § 408 means that the acts specified from time to time in § 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 § 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 § 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.” If the plain meaning of the language of § 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 § 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 or 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 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, wil-fully, 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 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. * ^ * iji * “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.’ * * * * * * “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 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. i'fi íjc j|c :jc % * “During the course of the trial, I have asked questions of certain witnesses. My abject 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. ;}: í}í % s|c * “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. “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., 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. 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. 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 colloquy 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. 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’ * * Although the jury made no statement on the subject, it 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 “-aken 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., ahd 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 ibe 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 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 383, 32 S.Ct. 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. 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 (1) 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 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 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. 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 alble 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. I. 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. I MEMBERS OP 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 base 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 tó be governed by sympathy, prejudice, or public opinion. The dccused and the public expect that you will carefully and dispassionately consider all the evidence, follow the law as stated by the Court, and reach a verdict jtist 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 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 reason 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 ease, 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 truthful- . ness 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 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. II Since the founding of our National Government, Article III, § 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, § 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”. I l-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. I l-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 treason-ably 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