Takehara v. Dulles, Secretary of State of the United States

BONE, Circuit Judge.

I dissent from the views expressed by my associates and for reasons hereafter stated I would affirm the judgment on appeal. Furthermore, I see nothing in the doctrine of the Mandoli case relied on by the majority which requires a reversal.

Appellant voted in a Japanese political election held in 1947 after he was 21 years of age (see Miranda v. Clark, 9 Cir., 180 F.2d 257) and from the record and the inferences which might legitimately be drawn from the testimony of appellant1 I am fully *563persuaded that the findings of the lower court are not clearly erroneous. Argument is unnecessary to emphasize that there are altogether too many imponderable factors and elements present in the process of judging the credibility of a witness (who in this case is certainly a vitally interested party and not an impartial witness) to justify us in substituting our judgment as to what the trial judge must accept as true in weighing are testimony of such a witness. (See eases footnote 3.) His manner of testifying, the nature and the probability of the truth of his story told through an interpreter, the appearance of candor or lack of candor in his testimony, and the other shadings and nuances of a trial, all of which cannot be disclosed to an appellate court in a cold record, are here completely stripped of significance if we disregard, as we seem to do, the obvious advantages of the trial judge in weighing these various factors.2

The short of it is that the trier of the facts was well within the orbit of his proper functions when he concluded (as he had every right to do) that appellant’s testimony was also to be considered and weighed in light of the obvious fact that appellee could not in any way rebut any sort of a story descriptive of purely subjective intentions or emotional reactions which are asserted to have induced “a state of mind” which affords the ultimate foundation for appellant’s claim to American citizenship. The obvious overriding personal interest of appellant in the outcome of the case, the inherent probability, or lack thereof of the truth of his story, were clearly proper factors to be considered. The court might well weigh, as it did, the problem of whether cold objectivity characterized appellant’s description of purely emotional reactions known only to himself.

His specific “intent” in voting is heavily stressed by appellant. It derives in a controlling degree from an asserted “state of mind” resulting from “advice” from a grandfather and an uncle. Reliance is therefore placed on the fact that appellant was taught implicit obedience to his family elders. (The length of this sort of supervision would depend upon how long these elders lived which might be until a man was long past middle life.) It is this “family advice” which here provides, in essence, the alleged coercion and duress which appellant asserts compelled his act of voting and thus rendered it an “involuntary” act. (It is not contended that acts of Japanese and American officials coerced him into voting.) He also testified that from all the “advice” then offered to Japanese people “he thought that he was personally requested to vote.”

Appellant insists that he did not intend to give up his American citizenship by voting and that this undisclosed intent should prevail; also that he did not know that one loses his American citizenship by voting.

There is nothing in the statute here applicable to suggest that the overt act of voting, (which spells expatriation under the wording of the statute) when voluntary, is conditioned upon the undisclosed intent of the person doing it. See Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287; Boissonnas v. Acheson, D.C., 101 F.Supp. 138, 146, 147.

But appellant would avoid the force of the applicable federal statute on foreign voting by asserting a mistaken conclusion as to its sanctions or effects. If such a factor has decisive weight the operation of the statute would depend not upon a voluntarily performed act, but upon the extent of the legal knowledge and the subjective intention or motivation of the person involved. That sort of test cannot be used to determine the operation of the (voting) *564statute here involved. See Savorgnan-and Boissonnas cases, supra,

• As to the so-called “compulsion” here considered we face the fact that it reflects an aspect of oriental medievalism whioh lingers in present day Japanese family customs. The views of a majority of this Court apparently make these ancient “customs” regarding “family advice” a part of our domestic law in the teeth of the federal statute, Title 8, U.S.C.A. § 801(e). (And see its successor statute, Public Law 414, 82nd Congress, 2nd Session, Section 349(a) (5), 8 U.S.C.A. § 1481(a) (5), commonly called the McCarran Act containing the same provision about voting in a political election in a foreign country.) In effect the majority holding in this case is that these ancient family customs (not Japanese military and/or civil law) pursuant to which appellant was the recipient of the “family advice” concerning voting in 1947, compel the conclusion that an irresistible form of coercion and duress was brought to bear on the adult appellant when he received this “advice.” As a consequence, he not only became wax and putty in the hands of his grandfather and uncle, but he was also shorn of all capacity for independent thinking and completely deprived of the exercise of free will; thus it follows that he was literally and legally forced to vote, despite the fact that the record will not sustain the conclusion that his state of mind was induced by fear of personal injury or harm.

The reasoning which would justify such a conclusion gives a strange twist to accepted legal concepts of duress and coercion. But it is the reasoning which provides legal substance for appellant’s claim to American citizenship. Our statute law does not sanction it, nor has Congress ordained that a federal court may ignore or set aside a statutory provision when an ancient “family custom” of a foreign nation stands in the way of its enforcement. If we assume and hold that federal courts have such power then we may-rest assured that hereafter in this circuit practically every person who voted in Japanese elections while claiming American citizenship will find it both convenient and wholly effective to assert that his act of voting was induced and compelled by “family advice” of the character here noted. His case for application of the duress and coercion doctrine which this Court now sanctions would then be complete and the United States would find itself helpless because it is unable to produce proof to refute or rebut a vague and tenuous claim based on an alleged subjective “state of mind” of an interested witness. Menefee v. W. R. Chamberlin Co., 9 Cir., 183 F.2d 720, see cases cited in dissent, at page 722. See also comment on weight which may be given uncorroborated and un-contradicted testimony of an interested witness in Noland v. Buffalo Insurance Co., 8 Cir., 181 F.2d 735, 738, 729.

I am unwilling to enthrone a doctrine that would produce such a result. Filial devotion is indeed a laudable virtue but implicit obedience to every form of advice from family elders in Japan will not and should not supplant or override American law in citizenship cases like the one at bar. If it does, then counsel relying on a claimed “state of mind” of their clients as a legal ground for relief in suits like the one at bar could successfully translate into domestic law the boast of the celebrated Daniel O’Connell, “I can drive a coach-and-six through any act of Parliament.”

A vast array of cases have considered the problem whether a trial judge (or jury) is required to accept as true testimony which is not contradicted. The list is long so a few typical cases must suffice.3 They are cited because the majority accepts the view *565that in the instant case the trial judge was under some sort of legal compulsion to accept as true in every detail the ex parte statements of appellant (as translated) concerning his state of mind and his intent at a particular time regardless of the honest conviction of the trial judge that he had heard a story tailored to make the facts fit an attractive and alluring theory of law. Applying such a rule strips away one of the most vital functions of a trial judge and makes this appellate court a weigher of the facts.

A “state of mind” which impelled Take-hara’s action in voting must be regarded as a fact in issue in the instant case. Likewise, the question whether voting was a voluntary act presents a pure question of fact.

The difficulties of a trial judge in attempting to evaluate testimony of orientals which generally carries subtle shadings of fact or alleged fact is well illustrated in the honest doubts expressed by the trial judge in Mar Gong v. McGranery, D.C., 109 F.Supp. 821. His views do not overstate or

over-emphasize the peculiar problem always present in this type of case. This difficulty is accented in the case at bar where all of the material testimony reached the ear of the judge burdened with whatever (perhaps unconscious) fact slants and/or shades of meaning a Japanese interpreter might choose to insert into his English translation of what was said to him by the witness. Despite the unhappy impressions left with the trial judge as a result of what he saw and heard, his judgment is upset because the majority are critical of his reactions. This goes very far in denying to a trial judge the right to appraise and weigh such factors as the demeanor and hearing of a witness and his interpreter and to arrive at a conclusion as to what to accept and what to reject when impressions are fresh in his mind. Here we have a classical example of a judge being forced to weigh the truth of statement of a witness, not by what the witness may have said but what the interpreter says that he said. In this not too easy transference of testimony, a judge has every right to be cautious in his appraisal and evaluation.

*566The nub of this case is the fact that if appellant’s claims rest on solid legal ground we must conclude that in the last analysis the outcome of citizenship claims like the one here asserted must be determined by quaint family customs in foreign countries since, ■ as a matter of law, they obliterate clear and simple provisions of our own law. Thus, “family upbringing,” and social amenities under Japanese customs which have their roots in great deference to one’s elders, are held to completely devitalize a law of the United States. I can find no rational reason for sustaining such a weird theory since it is a complete repudiation of a clear-cut Congressional mandate.

And that Japanese army people were other than courteous and decent to appellant at an earlier time is no reason for upholding appellant’s claim to citizenship. The earlier army incident referred to in appellant’s testimony was completely dissociated from the grounds upon which he ultimately rested his case.

The claim of duress and coercion advanced in this case rests upon such flimsy and untenable grounds that it should be rejected. Appellant did not meet the burden of proof which the law puts upon him and the judgment should be affirmed.

. Aside from the testimony of his father establishing such ancillary facts as the date, place of birth and age of appellant, the entire case for appellant was presented in his testimony given through an interpreter.

. The experienced trial judge filed an opinion in which he outlined the reasons for his findings, conclusions and judgment denying relief and dismissing appellant’s action. The judge was clearly persuaded that much of appellant’s story was unworthy of belief. He states that the examination indicated that appellant “was highly evasive, if not false in his testimony” — that “whenever the shoe pinched, he had a ready remedy.” He points out that appellant was not physically constrained and testified only that his uncle and grandfather each suggested to him that he might lose his ration card if he did not vote. No proof was offered that anyone ever lost a ration card for that reason.

. Because the appellee had absolutely no way of rebutting testimony of appellant as to his alleged “state of mind” at the time of voting the way was wide open to advance any sort of contention based on this ground. In the face of such a golden opportunity to clinch a case the wish of the witness may easily become the

father of an asserted fact. In this case the trier of fact was firmly convinced that the story of appellant was too flimsy to warrant belief and afforded no tenable ground for the relief sought. He was free to disbelieve despite absence of rebutting testimony. As to compulsion on a trial judge or j'ury to accept as true *565testimony which is disbelieved but which is not contradicted, see:

Quock Ting v. United States, 140 U.S. 417, 421, 422 and dissent, 11 S.Ct. 733, 851, 35 L.Ed. 501; Reagan v. United States, 157 U.S. 301, 15 S.Ct. 610, 39 L.Ed. 709. Cf. Helvering v. National Grocery Co., 304 U.S. 282, 295, 58 S.Ct. 932, 82 L.Ed. 1346; Segurola v. United States, 1 Cir., 16 F.2d 563, 565; Maners v. Ahlfeldt, 8 Cir., 59 F.2d 938, 939; Wheeler v. United States, 5 Cir., 80 F.2d 678, 679, 680; Cotten v. United States, 5 Cir., 92 F.2d 809; Snapp Hotel & Realty Co. v. Elbert, 8 Cir., 108 F.2d 661, 664; Dyer v. MacDougall, 2 Cir., 201 F.2d 265, 268, 269; N.L.R.B. v. Dinion Coil Co., 2 Cir., 201 F.2d 484, 487, 488, 489, 490; N.L.R.B. v. Howell Chevrolet Co., 9 Cir., 204 F.2d 79, certiorari granted 73 S.Ct. 940; Dickinson v. United States, 9 Cir., 203 F.2d 336, 345; Woey Ho v. United States, 9 Cir., 109 F. 888, 890. Albert ex rel. Buice v. Patterson, 1 Cir., 155 F.2d 429, 432; Ex parte Farrell, 1 Cir., 189 F.2d 540, 542, 545. Cf. Flynn ex rel. Yee Suey v. Ward, 1 Cir., 104 F.2d 900, 902.

As pointed out in United States v. Ma-rino, 2 Cir., 141 F.2d 771, 773, the credibility of interested witnesses is always a question of fact for the jury (citing cases). Greenfeld v. Commissioner of Internal Revenue, 4 Cir., 165 F.2d 318, 319; Heath v. Helmick, 9 Cir., 173 F.2d 157, 161; Everett v. Southern Pacific Co., 9 Cir., 181 F.2d 58, 60, 61; Noland v. Buffalo Ins. Co., 8 Cir., 381 F.2d 735, 738, 739; Menefee v. W. R. Chamberlin Co., 9 Cir., 183 F.2d 720, 723 and cases cited in dissent, at page 722; Robertson v. Territory of Arizona, 9 Cir., 188 F. 783; Minoru Hamamoto v. Acheson, D.C., 98 F.Supp. 904, 906.

Wigmore on Evidence (Third Ed. Vol. 7, Section 2034): “The mere assertion of any witness does not of itself need to be believed, even though he is nnim-peaehed in any manner; because to require such belief would be to give a quantitative and impersonal measure to testimony.” This Court has correctly characterized as “an ancient fallacy” the doctrine that a trier of fact must accept as true any and all sorts of uncontradict-ed testimony. See N.L.R.B. v. Howell Chevrolet Co., supra.

The California Court of Appeals in Taylor v. Bunnell, 333 Cal.App. 177, 23 P.2d 1062 also supported the rule discussed in this footnote.