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Opinion of the Court.

343 U.S.

and that he intended to do everything he could to help Japan. He also testified that the first loyalty he felt to the United States, following the entry of his name in the Koseki, was when he applied for registration as an American citizen in December, 1945, and once more took the oath of allegiance. Yet we have already seen that in connection with that application he conceded his dual nationality and the continuance of his American citizenship during his entire stay in Japan.

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

Other alleged errors are pressed upon us. But they are either insubstantial or so adequately disposed of by the Court of Appeals that we give them no notice, with one exception and that relates to the severity of the sentence. At the time of these offenses Congress had provided that one who is guilty of treason “shall suffer death; or, at

717

Vinson, C. J., dissenting.

the discretion of the court, shall be imprisoned not less than five years and fined not less than $10,000, . .. and every person so convicted of treason shall, moreover, be incapable of holding any office under the United States.” 10 The trial judge imposed the death sentence. The argument is that that sentence was so severe as to be arbitrary. It was, however, within the statutory limits. Whether a sentence may be so severe and the offense so trivial that an appellate court should set it aside is a question we need not reach. The flagrant and persistent acts of petitioner gave the trial judge such a leeway in reaching a decision on the sentence that we would not be warranted in interfering. Cf. Blockburger v. United States, 284 U. S. 299, 305.

Affirmed.

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

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

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

The threshold question in this case is whether petitioner renounced his United States citizenship and became expatriated by reason of acts committed in Japan during the War. Prior to 1943, petitioner was regarded by Japanese authorities as an enemy alien. In March, 1943, petitioner gave official notice of his allegiance to Japan by having his name registered in the family Koseki. Thereafter, petitioner had his name removed from police

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

VINSON, C. J., dissenting.

343 U.S.

records as an enemy alien, secured employment subject to military control at a munitions plant, traveled to China on a Japanese passport, and prayed daily for the Emperor's health and a Japanese victory. These facts and petitioner's heinous treatment of American prisoners of war, recited in the opinion of the Court, convince us that petitioner, for over two years, was consistently demonstrating his allegiance to Japan, not the United States. As a matter of law, he expatriated himself as well as that can be done.

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

Syllabus.

ON LEE v. UNITED STATES.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT.

No. 543. Argued April 24, 1952.-Decided June 2, 1952.

While petitioner was at large on bail pending his trial in a federal

court on federal narcotics charges, an old acquaintance and former employee, who, unknown to petitioner, was a federal “undercover agent” and had a radio transmitter concealed on his person, entered the customer's room of petitioner's laundry and engaged petitioner in a conversation. Self-incriminating statements, made by petitioner during this conversation and a later conversation on a sidewalk with the same "undercover agent,” were listened to on a radio receiver outside the laundry by another federal agent, who testified concerning them, over petitioner's objection, at the trial in which petitioner was convicted. Held:

1. The conduct of the federal agents did not amount to such a search and seizure as is proscribed by the Fourth Amendment. Pp. 750–753.

(a) The undercover agent committed no trespass when he entered petitioner's place of business, and his subsequent conduct did not render the entry a trespass ab initio. Pp. 751–753.

(b) The doctrine of trespass ab initio is applicable only as a rule of liability in civil actions, not where the right of the Government to make use of evidence in a criminal prosecution is involved. P. 752.

(c) The contentions that the undercover man's entrance was a trespass because consent was obtained by fraud, and that the other agent was a trespasser because by means of the radio receiver outside the laundry he overheard what went on inside, must be rejected. Pp. 752-753.

(d) Decisions relating to problems raised where tangible property is unlawfully seized are inapposite in the field of mechanical or electronic devices designed to overhear or intercept conversation, at least where access to the listening post was not obtained by illegal methods. P. 753.

(e) Even if the Court were to overturn its ruling that wiretapping is outside the ban of the Fourth Amendment, Olmstead v. Opinion of the Court.

343 U.S.

United States, 277 U. S. 438, petitioner would not be aided, since his case cannot be treated as one involving wiretapping. Pp. 753– 754.

2. The facts do not show a violation of $ 605 of the Federal Communications Act, since there was no interference with any communications facility that petitioner possessed or was entitled to use, nor was petitioner sending messages to anyone or using a system of communications within the Act. P. 754.

3. The evidence should not have been excluded as a means of disciplining law enforcement officers. McNabb v. United States,

318 U. S. 332, distinguished. Pp. 754–758. 193 F. 2d 306, affirmed.

Petitioner was convicted in the District Court of federal offenses. The Court of Appeals affirmed. 193 F. 2d 306. This Court granted certiorari. 342 U. S. 941. Affirmed,

p. 758.

Gilbert S. Rosenthal argued the cause for petitioner. With him on the brief was Henry K. Chapman.

Robert S. Erdahl argued the cause for the United States. With him on the brief were Solicitor General Perlman and Assistant Attorney General McInerney.

MR. JUSTICE JACKSON delivered the opinion of the Court.

Petitioner was convicted on a two-count indictment, one charging the substantive offense of selling a pound of opium in violation of 21 U. S. C. $$ 173 and 174, the other conspiring to sell the opium in violation of 18 U.S. C. $ 371. The Court of Appeals sustained the conviction by a divided court. We granted certiorari.?

The questions raised by petitioner have been considered but only one is of enough general interest to merit discussion. That concerns admission in evidence of two conversations petitioner had, while at large on bail pend

1 193 F. 2d 306. 2 342 U. S. 941.

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