Korematsu v. United States (1984)

Fred Korematsu, Plaintiff, v. United States of America, Defendant.

No. CR-27635 W.

United States District Court, N.D. California.

April 19, 1984. . . . 

PATEL, District Judge.

Fred Korematsu is a native born citizen of the United States. He is of Japanese ancestry. On September 8, 1942 he was convicted in this court of being in a place from which all persons of Japanese ancestry were excluded pursuant to Civilian Exclusion Order No. 34 issued by Commanding General J.L. DeWitt. His conviction was affirmed. Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944).

Mr. Korematsu now brings this petition for a writ of coram nobis to vacate his conviction on the grounds of governmental misconduct. His allegations of misconduct are best understood against the background of events leading up to his conviction.

On December 8, 1941 the United States declared war on Japan.

Executive Order No. 9066 was issued on February 19, 1942 authorizing the Secretary of War and certain military commanders "to prescribe military areas from which any persons may be excluded as protection against espionage and sabotage."

Congress enacted § 97a of Title 18 of the United States Code, enforcing the exclusions promulgated under the Executive Order. Section 97a made it a misdemeanor for anyone to enter or remain in any restricted military zone contrary to the order of a military commander.

In the meantime, General DeWitt was designated Military Commander of the Western Defense Command which consisted of several western states including California.

On March 2, 1942 General DeWitt issued Public Proclamation No. 1 pursuant to Executive Order 9066. The proclamation stated that "the entire Pacific Coast . . . is subject to espionage and acts of sabotage, thereby requiring the adoption of military measures necessary to establish safeguards against such enemy operations."

Thereafter, several other proclamations based upon the same justification were issued placing restrictions and requirements upon certain persons, including all persons of Japanese ancestry. As a result of these proclamations and Exclusion Order No. 34, providing that all persons of Japanese ancestry be excluded from an area specified as Military Area No. 1, petitioner, who lived in Area No. 1, could not leave the zone in which he resided and could not remain in the zone unless he were in an established "Assembly Center." Petitioner remained in the zone and did not go to the Center. He was charged and convicted of knowingly remaining in a proscribed area in violation of § 97a.

It was uncontroverted at the time of conviction that petitioner was loyal to the United States and had no dual allegiance to Japan. He had never left the United States. He was registered for the draft and willing to bear arms for the United States.

In his papers petitioner maintains that evidence was suppressed or destroyed in the proceedings that led to his conviction and its affirmance. He also makes substantial allegations of suppression and distortion of evidence which informed Executive Order No. 9066 and the Public Proclamations issued under it. While the latter may be compelling, it is not for this court to rectify. However, the court is not powerless to correct its own records where a fraud has been worked upon it or where manifest injustice has been done.

The question before the court is not so much whether the conviction should be vacated as what is the appropriate ground for relief. . . .

Procedural History of These Proceedings

Petitioner filed his petition for a writ of coram nobis on January 19, 1983. The first scheduled status conference was conducted on March 14, 1983, when all parties appeared before the court. At that time the petition was deemed a motion and the government was ordered to respond by August 29, 1983. . . . Thereafter, the government moved for an extension based upon the forthcoming report of the Commission on Wartime Relocation and Internment of Civilians ("Commission"), which it anticipated would have a substantial bearing on these proceedings. The motion for a continuance was opposed. The court granted the motion . . . On October 4, 1983, a document entitled "Government's Response and Motion Under L.R. 220-6" ("Response") was filed. The substance of the Response consists of less than four pages. In fact, it is not an opposition to the petition, but a counter-motion to vacate the conviction and dismiss the underlying indictment. . . . 

On October 31, petitioner filed his reply and Request for Judicial Notice. The government filed its Preliminary Response to the Request for Judicial Notice on November 7, 1983. A hearing on the petition and counter-motion was conducted on November 10, 1983. . . . 

The Petition for a Writ of Coram Nobis

A writ of coram nobis is an appropriate remedy by which the court can correct errors in criminal convictions where other remedies are not available. Although Rule 60(b), Fed.R.Civ.P., abolishes various common law writs, including the writ of coram nobis in civil cases, the writ still obtains in criminal proceedings where other relief is wanting. United States v. Morgan, 346 U.S. 502, 74 S. Ct. 247, 98 L. Ed. 248 (1954). See also James v. United States, 459 U.S. 1044, 103 S. Ct. 465, 74 L. Ed. 2d 615 (1982) (dissenting opinion in denial of petition for writ of certiorari explaining purpose of coram nobis); Chresfield v. United States, 381 F. Supp. 301, 302 (E.D.Pa.1974).

While the habeas corpus provisions of 28 U.S.C. § 2255 supplant most of the functions of coram nobis, particularly in light of the federal courts' expanded view of custody, habeas corpus is not an adequate remedy here. Petitioner's sentence has been served. He cannot meet the "in custody" requirements of § 2255 under any interpretation of that section. See Hensley v. Municipal Court, 411 U.S. 345, 93 S. Ct. 1571, 36 L. Ed. 2d 294 (1973) (discussing meaning of custody in context of 28 U.S.C. § 2254 requirements); Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963) (finding the restraints of parole sufficient to constitute custody for the purposes of habeas proceedings under § 2254); Azzone v. United States, 341 F.2d 417 (8th Cir.1965), cert. denied sub. nom. Azzone v. Tahash, 390 U.S. 970, 88 S. Ct. 1090, 19 L. Ed. 2d 1180 (1968) (applying the custody requirement in § 2255 proceedings). It is in these unusual circumstances that an extraordinary writ such as the writ of coram nobis is appropriate to correct fundamental errors and prevent injustice. United States v. Correa-De Jesus, 708 F.2d 1283 (7th Cir.1983).

The source of the court's power to grant coram nobis relief lies in the All Writs Act, 28 U.S.C. § 1651(a). The petition is appropriately heard by the district court in which the conviction was obtained. Morgan, 346 U.S. at 512, 74 S. Ct. at 253. This is so even though the judgment has been appealed and affirmed by the Supreme Court. Appellate leave is not required for a trial court to correct errors occurring before it. Standard Oil of California v. United States, 429 U.S. 17, 97 S. Ct. 31, 50 L. Ed. 2d 21 (1976).

Coram nobis being the appropriate vehicle for petitioner to seek relief, I turn to the question of how the court shall proceed in this unusual case. . . . 

Ordinarily, in cases in which the government agrees that a conviction should be set aside, the government's position is made clear because it confesses error, calling to the court's attention the particular errors upon which the conviction was obtained. A confession of error is generally given great deference. Where that confession of error is made by the official having full authority for prosecution on behalf of the government it is entitled to even greater deference. See Sibron v. State of New York, 392 U.S. 40, 58-59, 88 S. Ct. 1889, 1900-1901, 20 L. Ed. 2d 917 (1968). Even so, the court must conduct its own review. Young v. United States, 315 U.S. 257, 62 S. Ct. 510, 86 L. Ed. 832 (1942).

In this case, the government, joining in on a different procedural footing, is not prepared to confess error. Yet it has not submitted any opposition to the petition, although given ample opportunity to do so. Apparently the government would like this court to set aside the conviction without looking at the record in an effort to put this unfortunate episode in our country's history behind us.

The government has, however, while not confessing error, taken a position tantamount to a confession of error. It has eagerly moved to dismiss without acknowledging any specific reasons for dismissal other than that "there is no further usefulness to be served by conviction under a statute which has been soundly repudiated." (R.T. 13:20-22, November 10, 1983). In support of this statement, the government points out that in 1971, legislation was adopted requiring congressional action before an Executive Order such as Executive Order 9066 can ever be issued again; that in 1976, the statute under which petitioner was convicted was repealed; and that in 1976, all authority conferred by Executive Order 9066 was formally proclaimed terminated as of December 31, 1946. While these are compelling reasons for concluding that vacating the conviction is in the best interests of this petitioner, respondent and the public, the court declines the invitation of the government to treat this matter in the perfunctory and procedurally improper manner it has suggested.

On the other hand, this court agrees that it is not necessary to reopen the partially healed wounds of an earlier period in order to perform its role of conducting independent judicial review. Fortunately, there are few instances in our judicial history when courts have been called upon to undo such profound and publicly acknowledged injustice. Such extraordinary instances require extraordinary relief, and the court is not without power to redress its own errors.

Because the government has not acknowledged specific errors, the court will look to the original record and the evidence now before it to determine whether there is support for the petition and whether manifest injustice would be done in letting the conviction stand.

Evidentiary Issues

The "evidence" before this court consists of certain documents and reports of which petitioner asks the court to take judicial notice. . . . 

The matters which petitioner asks the court to judicially notice are the Report of the Commission on Wartime Relocation and Internment of Civilians, entitled "Personal Justice Denied" (Washington, D.C., 1982) ("Report") and certain government documents, the authenticity of which is not in dispute. . . .

The Commission Report

The Commission on Wartime Relocation and Internment of Civilians was established in 1980 by an act of Congress. It was directed to review the facts and circumstances surrounding Executive Order 9066 and its impact on American citizens and permanent resident aliens; to review directives of the United States military forces requiring the relocation and, in some cases, detention in internment camps of American citizens, including those of Japanese ancestry; and to recommend appropriate remedies. Commission on Wartime Relocation and Internment of Civilians Act, Pub.L. No. 96-317, § 2, 94 Stat. 964 (1980). . . . 

The findings and conclusions of the Commission were unanimous. In general, the Commission concluded that at the time of the issuance of Executive Order 9066 and implementing military orders, there was substantial credible evidence from a number of federal civilian and military agencies contradicting the report of General DeWitt that military necessity justified exclusion and internment of all persons of Japanese ancestry without regard to individual identification of those who may have been potentially disloyal.

The Commission found that military necessity did not warrant the exclusion and detention of ethnic Japanese. It concluded that "broad historical causes which shaped these decisions [exclusion and detention] were race prejudice, war hysteria and a failure of political leadership." As a result, "a grave injustice was done to American citizens and resident aliens of Japanese ancestry who, without individual review or any probative evidence against them, were excluded, removed and detained by the United States during World War II." Personal Justice Denied at 18.

The Commission's Report provides ample support for the conclusion that denial of the motion would result in manifest injustice and that the public interest is served by granting the relief sought.

Government Memoranda

Petitioner offers another set of documents showing that there was critical contradictory evidence known to the government and knowingly concealed from the courts. . . .

The substance of the statements contained in the documents and the fact the statements were made demonstrate that the government knowingly withheld information from the courts when they were considering the critical question of military necessity in this case. A series of correspondence regarding what information should be included in the government's brief before the Supreme Court culminated in two different versions of a footnote that was to be used to specify the factual data upon which the government relied for its military necessity justification. The first version read as follows:

The Final Report of General DeWitt (which is dated June 5, 1943, but which was not made public until January 1944) is relied on in this brief for statistics and other details concerning the actual evacuation and the events that took place subsequent thereto. The recital of the circumstances justifying the evacuation as a matter of military necessity, however, is in several respects, particularly with reference to the use of illegal radio transmitters and to shore-to-ship signalling by persons of Japanese ancestsry, in conflict with information in the possession of the Department of Justice. In view of the contrariety of the reports on this matter we do not asks the Court to take judicial notice of the recital of those facts contained in the Report.

Petitioner's Exhibit AA, Memorandum of John L. Burling to Assistant Attorney General Herbert Wechsler, September 11, 1944 (emphasis added).

After revision, it read:

The Final Report of General DeWitt (which is dated June 5, 1943, but which was not made public until January 1944) hereinafter cited as Final Report, is relied on in this brief for statistics and other details concerning the actual evacuation and the events that took place subsequent thereto. The recital in the Final Report of circumstances justifying the evacuation as a matter of military necessity, however, is in several respects, particularly with reference to the use of illegal radio transmitters and shore-to-ship signalling by persons of Japanese ancestry, in conflict with the views of this Department. We, therefore, do not ask the Court to take judicial notice of the recital of those facts contained in the Report.

Id. (emphasis added).

The footnote that appeared in the final version of the brief merely read as follows:

The Final Report of General DeWitt (which is dated June 5, 1943, but which was not made public until January 1944), hereinafter cited as Final Report, is relied on in this brief for statistics and other details concerning the actual evacuation and the events that took place subsequent thereto. We have specifically recited in this brief the facts relating to the justification for the evacuation, of which we ask the Court to take judicial notice, and we rely upon the Final Report only to the extent that it relates to such facts.

Brief for the United States, Korematsu v. United States, October Term, 1944, No. 22, at 11. The final version made no mention of the contradictory reports. The record is replete with protestations of various Justice Department officials that the government had the obligation to advise the courts of the contrary facts and opinions. Petitioner's Exhibits A-FF. In fact, several Department of Justice officials pointed out to their superiors and others the "wilful historical inaccuracies and intentional falsehoods" contained in the DeWitt Report. E.g., Exhibit B and Exhibit AA, Appendices A and B hereto.

These omissions are critical. In the original proceedings, before the district court and on appeal, the government argued that the actions taken were within the war-making powers of the Executive and Legislative branches and, even where the actions were directed at a particular class of persons, they were beyond judicial scrutiny so long as they were reasonably related to the security and defense of the nation and the prosecution of the war. Plaintiff's Brief in Opposition to Demurrer before the District Court, at 11-13; Brief for the United States in Korematsu v. United States, in the Supreme Court of the United States, at 11-18.

Indeed, this emphasis on national security was reflected in the standard of review laid down in Hirabayashi v. United States, 320 U.S. 81, 95, 63 S. Ct. 1375, 1383, 87 L. Ed. 1774 (1943): "We think that constitutional government in time of war, is not so powerless and does not compel so hard a choice if those charged with the responsibility of our national defense have reasonable ground for believing that the threat is real." The Court acknowledged that it could not second guess the decisions of the Executive and Congress but was limited to determining whether all of the relevant circumstances "within the knowledge of those charged with the responsibility for maintaining the national defense afforded a rational basis for the decisions which they made." Id. at 102, 63 S. Ct. at 1386.

The government relied on the rationale of Hirabayashi in its memoranda in Korematsu. That rationale was adopted in Korematsu. 323 U.S. at 218-24, 65 S. Ct. at 195-197.

In Hirabayashi and Korematsu, the courts at each level engaged in an extensive examination of the facts known to the Executive and Legislative Branches. The facts which the government represented it relied upon and provided to the courts were those contained in a report entitled "Final Report, Japanese Evacuation from the West Coast" (1942), prepared by General DeWitt. His evaluation and version of the facts informed the courts' opinions. Yet, omitted from the government's representations was any reference to contrary reports which were considered reliable by the Justice Department and military officials other than General DeWitt.

A close reading of the briefs filed in the District Court by the government and amicus curiae State of California shows they relied heavily on the DeWitt Report for the facts justifying their military necessity arguments.

There is no question that the Executive and Congress were entitled to reasonably rely upon certain facts and to discount others. The question is not whether they were justified in relying upon some reports and not others, but whether the court had before it all the facts known by the government. Was the court misled by any omissions or distortions in concluding that the other branches' decisions had a reasonable basis in fact? Omitted from the reports presented to the courts was information possessed by the Federal Communications Commission, the Department of the Navy, and the Justice Department which directly contradicted General DeWitt's statements. Thus, the court had before it a selective record.

Whether a fuller, more accurate record would have prompted a different decision cannot be determined. Nor need it be determined. Where relevant evidence has been withheld, it is ample justification for the government's concurrence that the conviction should be set aside. It is sufficient to satisfy the court's independent inquiry and justify the relief sought by petitioner.

Other Requirements for Coram Nobis Relief 

There is . . . no barrier to granting petitioner's motion for coram nobis relief.

Conclusion

The Supreme Court has cautioned that coram nobis should be used "only under certain circumstances compelling such action to achieve justice" and to correct "errors of the most fundamental character." United States v. Morgan, 346 U.S. 502, 511-12, 74 S. Ct. 247, 252-253, 90 L. Ed. 248 (1954). It is available to correct errors that result in a complete miscarriage of justice and where there are exceptional circumstances. See United States v. Hedman, 655 F.2d 813, 815 (7th Cir.1981). . . 

At oral argument the government acknowledged the exceptional circumstances involved and the injustice suffered by petitioner and other Japanese-Americans. See also Response at 2-3. Moreover, there is substantial support in the record that the government deliberately omitted relevant information and provided misleading information in papers before the court. The information was critical to the court's determination, although it cannot now be said what result would have obtained had the information been disclosed. Because the information was of the kind peculiarly within the government's knowledge, the court was dependent upon the government to provide a full and accurate account. Failure to do so presents the "compelling circumstance" contemplated by Morgan. The judicial process is seriously impaired when the government's law enforcement officers violate their ethical obligations to the court.

This court's decision today does not reach any errors of law suggested by petitioner. At common law, the writ of coram nobis was used to correct errors of fact. United States v. Morgan, 346 U.S. 502, 507-13, 74 S. Ct. 247, 250-253, 90 L. Ed. 248 (1954). It was not used to correct legal errors and this court has no power, nor does it attempt, to correct any such errors.

Thus, the Supreme Court's decision stands as the law of this case and for whatever precedential value it may still have. Justices of that Court and legal scholars have commented that the decision is an anachronism in upholding overt racial discrimination as "compellingly justified." "Only two of this Court's modern cases have held the use of racial classifications to be constitutional." Fullilove v. Klutznick, 448 U.S. 448, 507, 100 S. Ct. 2758, 2789, 65 L. Ed. 2d 902 (1980) (Powell, J., concurring and referring to Korematsu and Hirabayashi v. United States, 320 U.S. 81, 63 S. Ct. 1375, 87 L. Ed. 1774 (1943)). See also L.H. Tribe, American Constitutional Law §§ 16-6, 16-14 (1978). The government acknowledged its concurrence with the Commission's observation that "today the decision in Korematsu lies overruled in the court of history."

Korematsu remains on the pages of our legal and political history. As a legal precedent it is now recognized as having very limited application. As historical precedent it stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees. It stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability. It stands as a caution that in times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused.

Order

In accordance with the foregoing, the petition for a writ of coram nobis is granted and the counter-motion of the respondent is denied.

IT IS SO ORDERED. . . .