343 U.S.

717
72 S.Ct. 950
96 L.Ed. 1249

TOMOYA KAWAKITA
v.
UNITED STATES.
No. 570.
Argued April 3, 1952.
Decided June 2, 1952.
Rehearing Denied Oct. 13, 1952.

See 73 S.Ct. 5.
[Syllabus from pages 717-719 intentionally omitted]
Messrs. Morris Lavine, A. L. Wiren, Los Angeles, Cal., for petitioner.
Mr. Oscar H Davis, Washington, D.C., for respondent.
Mr. Justice DOUGL AS 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 convicted of treason after a jury trial, see D.C., 96 F.Supp. 824 and the
judgment of conviction was affirmed. 9 Cir., 190 F.2d 506. The case is here on
certiorari. 342 U.S. 932, 72 S.Ct. 378.

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, 63 S.Ct. 1375, 1384, 87 L.Ed.
1774.

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 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.
4

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, 8 U.S.C.A. 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

10

'(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; * * *.'

11

The court charged that if the jury found that petitioner had lost his Aerican
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.'

12

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; he used the Koseki entry to get a job at the
Oeyama camp; he went to China on a Japanese passport, see United States ex
rel. Scimeca v. Husband, 2 Cir., 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.

13

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, 344349, 59
S.Ct. 884, 894 896, 83 L.Ed. 1320. 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. 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.
14

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 Japanese nationality, might reasonably mean no more than
announcing the fact of his Japanese nationality to the interested authorities.

15

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.

16

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.'
17

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 een
'temporarily residing' in Japan since August 10, 1939; tha t he came to 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.'

18

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.

19

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 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.

20

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.

21

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 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 as
nationalized or its properties seized and operated by the g overnment. 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.

22

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, 307 U.S. at page 337, 59 S.Ct. at page 891, '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 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
23

Section 4024 creates a presumption5 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 ex rel. Camara v. Nicolls, 1 Cir., 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.

24

Section 408 provides, 'The loss of nationality under this Act shall result solely
from the performance by a national of the acts of fulfillment of the conditions
specified in this Act.' The District Court therefore charged 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, 8 U.S.C.A. 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 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.
25

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.

26

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.

27

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 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. 347348. 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,
18 U.S.C.A. 2381.7 We must therefore reject the suggestion that an American

citizen living beyond the territoril limits of the United States may not commit
treason against them. See Chandler v. United States, 1 Cir., 171 F.2d 921, 929
930; Burgman v. United States, 88 U.S.App.D.C. 184, 185, 188 F.2d 637,
640.
28

On e 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:

29

'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 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.

30

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, 307 U.S. at page 329, 59 S.Ct. at page 887. 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 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 actsif 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
accountabe by the jury only for performing acts of hostility toward thi
country which he was not required by Japan to perform.
31

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 renouncing his American citizenship. He cannot turn it into a fairweather 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.

32

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.

33

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.'

34

So far as material here, the crime thus consists of two elementsadhering to

the enemy; and giving him aid and comfort. See Cramer v. United States, 325
U.S. 1, 29, 65 S.Ct. 918, 930, 89 L.Ed. 1441. 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, 325 U.S. at pages
30, 31, 65 S.Ct. at pages 932, 933.

35

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, 67 S.Ct. 874, 879, 91 L.Ed. 1145. We
conclude, however, that each of the eight overt acts was properly proved.

36

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.

37

After the American prisoners arrived, the Japanese autorities raised the quota of
ore which they were expected to pr oduce 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.

38

There were two overt acts in this category. Overt act (a) as alleged in the
indictment and developed at the 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.
39

Each of these acts was aimed at getting more work out of the prisonerswork
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,
2 L.Ed. 554, '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 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.

40

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

41

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.

42

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.

43

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'Cnnor temporarily lost his reason.

44

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 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.

45

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.

46

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.

47

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 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, 325 U.S. at page 45, 65 S.Ct. at page 939. 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.
48

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 fewerguards; they would require less
watching. These acts would ten d 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 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, 325
U.S. at pages 28, 29, 34, 65 S.Ct. at pages 932, 934. All of the overt acts tended
to strengthen Japan's war efforts; all of them encouraged the enemy and
advanced its interests.

49

Petitioner contends that the overt acts were not sufficiently proved by two
witnesses. Each witness who testified to an overt act was, however, an eyewitness 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,

330 U.S. at page 640, 67 S.Ct. at page 878. 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.
50

Fourth. Petitioner challenges the sufficiency of the evidence to show the second
element in the crime of treasonadhering to the enemy. The two-witness
requirement does not extend to this element. Cramer v. United States, supra,
325 U.S. at page 31, 65 S.Ct. at page 933. Intent to betray must be inferred
from conduct. It may be inferred from the overt acts themselves, Cramer v.
United States, supra, 325 U.S. at page 31, 65 S.Ct. at page 933, from the
defendant's own statements of his attitudes toward the war effort, Haupt v.
United States, supra, 330 U.S. at page 642, 67 S.Ct. at page 879, and from his
own professions of loyalty to Japan.

51

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.'

52

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 tothe States
anyway.' At the trial he said he felt no loyalty to the United States during the
period from March 1943 to December 1945, 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.
53

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.

54

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 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, 52 S.Ct. 180, 182, 76 L.Ed.
306.

55

Affirmed.

56

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

57

Mr. Justice CLARK took no part in the consideration or decision of the case.

57

Mr. Justice CLARK took no part in the consideration or decision of the case.

58

Mr. Chief Justice VINSON, with whom Mr. Justice BLACK and Mr. Justice
BURTON join, dissenting.

59

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 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.

60

Petitioner's statements that he was still a citizen of the United Statesmade in

order to obtain a United States passport after Japan had lost the Warcannot
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.

See Blakemore, Recovery of Japanese Nationality as Cause for Expatriation in

American Law, 43 Am.J.Int'l L. 441, 449.

For discussions of the subject of dual nationality, see Talbot v. Jansen, 3 Dall.
133, 164165, 169, 1 L.Ed. 540; Inglis v. Trustees of The Sailor's Snug
Harbour, 3 Pet. 99, 126, 157, 161, 7 L.Ed. 617; Shanks v. Dupont, 3 Pet. 242,
247, 249, 7 L.Ed. 666; Perkins v. Elg, 307 U.S. 325, 329, 339, 344345, 59
S.Ct. 884, 83 L.Ed. 1320; Hirabayashi v. United States, 320 U.S. 81, 97 98, 63
S.Ct. 1375, 1384, 87 L.Ed. 1774; Savorgnan v. United States, 338 U.S. 491,
500, 70 S.Ct. 292, 297, 94 L.Ed. 287; Unitd States ex rel. Scimeca v. Husband,
2 Cir., 6 F.2d 957, 958; Dos Reis ex rel. Camara v. Nicolls, 1 Cir., 161 F.2d
860; Attorney General of U.S. v. Ricketts, 9 Cir., 165 F.2d 193; Uyeno v.
Acheson, D.C., 96 F.Supp. 510, 514515; Tomasicchio v. Acheson, D.C., 98
F.Supp. 166; Kondo v. Acheson, D.C., 98 F.Supp. 884, 886 887; Hamamoto v.
Acheson, D.C., 98 F.Supp. 904, 905; Boissonnas v. Acheson, D.C., 101

F.Supp. 138, 147, 151152; Di Girolamo v. Acheson, D.C., 101 F.Supp. 380,
382; Coumas v. Superior Court in and for San Joaquin County, 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, 376377; Lynch v. Clarke, 1 Sandf.Ch., N.Y. 583, 659,
677679; State ex rel. Phelps v. Jackson, 79 Vt. 504, 520, 65 A. 657, 661, 8
L.R.A.,N.S., 1245; 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, 352377; Hyde,
International Law (2d ed.) Vol. 2, pp. 1131 1143; Moore, International Law
Digest, Vol. III, pp. 518551; Nielsen, Some Vexatious Questions Relating to
Nationality, 20 Col.L.Rev. 840; Oppenheim, International Law (7th ed.,
Lauterpacht), Vol. I, pp. 606610; Orfield, The Legal Effects of Dual
Nationality, 17 Geo.Wash.L.Rev. 427; Van Dyne, Citizenship of the United
States, 24, 34.
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. 131132), 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

equivlent to a choice of his citizenship and he loses his American nationality.'
(Italics added.)
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.' 8 U.S.C.A. 802.

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.

R.S. 1999, 8 U.S.C. 800, 8 U.S.C.A. 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.'

'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 ncapable
of holding any office under the United States.'
8

Abstract of Passport Laws and Precedents, Passport Division Office

Instructions, Code No. 1.6, May 19, 1941.

The form of interrogatory which the jury answered affirmatively to each of the
eight overt acts is printed in United States v. Kawakita, D.C., 96 F.Supp. 824,
851852.

10

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