D'aquino v. United States

192 F.2d 338 (9th Cir. 1951)

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Nature of the Case

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Facts

D was born and educated in the United States and a few months prior to the outbreak of the war with Japan she had gone to Japan for the purpose of studying medicine. P had received a college degree and had taken postgraduate work at a California university. Shortly before the outbreak of the war she applied for a passport to return to the United States and was advised by the State Department that the passport was denied on the ground that her citizenship was not proven (she had traveled to Japan upon a 'certificate of identification'). D endeavored to get clearance to board a ship scheduled to sail for the United States on December 2, 1941 but was unsuccessful. Early in 1942, she applied for evacuation through the Swiss Legation but encountering difficulties in procuring certification of her United States citizenship she abandoned this attempt. D was frequently invited to become a Japanese citizen but steadfastly refused. In the spring of 1945, she married D'Aquino, a Portuguese citizen. In the early part of 1943, D sought employment at Radio Tokyo and began her work as a typist for the Broadcasting Corporation of Japan in the fall of 1943. D began her broadcast work for this corporation which was under the control of the Japanese Government. When D took her voice test and accepted employment as an announcer and broadcaster for Radio Tokyo she knew that her work was to be concerned with a program known as 'Zero Hour' which was to be beamed and directed specially to Allied soldiers in the Pacific. D knew the program would consist of music and entertainment designed to procure a listening audience among Allied soldiers, and that there was to be news and commentaries containing propaganda which was to be used as an instrument of psychological warfare. D was to cause the Allied troops to become homesick, tired, and disgusted with the war. D did 340 programs on the Zero Hour. She called herself 'Ann' or 'Orphan Ann.' In one particular incident, D was told by Japanese General Headquarters to allude to ship losses in one of the Leyte Gulf battles. D proceeded to say in substance: 'Now you fellows have lost all your ships. You really are orphans of the Pacific. Now how do you think you will ever get home?' D claimed the programs were exclusively entertainment and for that purpose only, she had been informed by the officer in command that the time for propaganda would not arrive until the Japanese were having more military and naval successes. American prisoners of war testified that they had been coerced into participation in this program. They testified that they were sabotaging the program. They claimed they managed to inject into the program many reports of American prisoners of war and messages from them, and D co-operated with them in their efforts to frustrate the purposes of the Japanese military operating through the broadcasting corporation to destroy the morale of the American soldiers. D asserts that the trial court committed numerous errors relating to the claimed defense of duress or coercion. The court instructed the jury at length upon the defense that the criminal act was not committed, voluntarily but was the result of coercion, compulsion, or necessity. It stated that 'in order to excuse a criminal act on the ground of coercion, compulsion or necessity, one must have acted under the apprehension of immediate and impending death or of serious and immediate bodily harm. Fear of injury to one's property or remote bodily harm does not excuse an offense.' D was convicted and appealed.