UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

NORTHERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,

-vs-

GORDON KIYOSHI HIRABAYASHI, Defendant.

No. 45738

GOVERNMENT'S REQUESTED INSTRUCTIONS

Comes now the United States of America, plaintiff herein, and respectfully requests this Honorable Court to make the following instructions in the above entitled cause.

INSTRUCTION NO. ___

The indictment involved in this action in Count I charges the defendant, who is alleged to be a person of Japanese ancestry, with violating Civilian Exclusion Order No. 57, by failing to report to the Civilian Control Station.

In Count II the indictment charges said defendant with violating the curfew provisions of Public Proclamation No. 3 issued by the Military Commander of the Western Defense Command.

On December 8, 1941, Congress, in joint resolution, declared a state of war to be existing between Japan and the Government and people of the United States.

On February 19, 1942, the President signed an Executive Order in which the Secretary of War and military commanders designated by him, were authorized and directed, whenever such action was necessary

"* * * to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion * * *."

On February 20, 1942 the Secretary of War designated Lieutenant General DeWitt to carry out the duties and responsibilities imposed by the said Executive Order for the particular district involved in this action.

On March 2, 1942 Lieutenant General DeWitt declared the Pacific Coast of the United States to be, because of its geographical location

"* * * particularly subject to attack, to attempted invasion by the armed forces of nations with which the United States is now at war, and, in connection therewith, is subject to espionage and acts of sabotage, thereby requiring the adoption of military measures necessary to establish safeguards against such enemy operations."

On March 21, 1942 Public Law No. 503, enacted by Congress, became effective. The portion material to this action reads as follows:

"* * * whoever shall * * * leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive Order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor * * *."

I instruct you as a matter of law that the foregoing regulations were valid regulations, and the laws under which they were promulgated are valid and enforceable laws.

INSTRUCTION NO. ___

As far as Count I of the indictment is concerned, you are concerned with the following:

(1) Was the defendant Gordon Kiyoshi Hirabayashi of Japanese ancestry.

(2) Did he on May 11, 1942 fail and neglect to report to the Civil Control Station located at the Christian Youth Center, 2203 East Madison Street, Seattle, Washington, between the hours of eight o'clock A.M. and five o'clock P.M., or at all.

(3) Did he on May 12, 1942, between the hours of eight o'clock A.M. and five o'clock P.M., or at all, fail to report to the Civil Control Station located at the Christian Youth Center, 2203 East Madison Street, Seattle, Washington.

(4) Did he know of the existence of the orders to report.

If you find from the evidence, beyond a reasonable doubt, that the defendant herein was a person of Japanese ancestry, that he either knew or should have known of the existence and extent of the orders requiring him to report on either May 11, 1942, or May 12, 1942, and you further find from the evidence, beyond a reasonable doubt, that he failed to so report, then, in that event, you are instructed to return a verdict of guilty as to Count I of the indictment.

INSTRUCTION NO. ___

As to Count II, the indictment charges that the defendant Gordon Kiyoshi Hirabayashi failed to obey Paragraph No. 1 of Public Proclamation No. 3, which provides as follows:

"1. From and after 6:00 A.M., March 27, 1942, * * * * all persons of Japanese ancestry residing or being within the geographical limits of Military Area No. 1, * * * * * shall be within their place of residence between the hours of 8:00 P.M. and 6:00 A.M., which period is hereinafter referred to as the hours of curfew."

I hereby instruct you that the City of Seattle on May 4, 1942, and at all times since said date, was within the geographical limits of Military Area No. 1.

I further instruct you that if you find from the evidence, beyond a reasonable doubt, the following facts: (1) that the defendant herein, Gordon Kiyoshi Hirabayashi, was of Japanese ancestry; (2) that he either knew or should have known of the curfew regulations; (3) that on or about May 4, 1942 the said defendant failed to obey said curfew regulations in the manner following, that is to say: he was not within his place of residence at Seattle, Washington, between the hours of eight o'clock P.M. and six o'clock A.M., then your verdict should be guilty as to Count II.

INSTRUCTION NO. ___

I further instruct you that it is not necessary that the Government prove that the offense herein was committed on the exact date set forth in the indictment. If you find from the evidence, beyond a reasonable doubt, that the defendant herein committed the offense charged at any time between May 4, 1942 and May 28, 1942, then, in that event, you should bring in a verdict of guilty.