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1945, between the Rumanian government and the three Malaxa companies, returning to the latter their plants and assets which had theretofore been under the control of the state-owned company known as Rogifer. The agreement of April 17, 1945, also provided for the payment of $2,460,000 in United States currency for the Malaxa tube mill which was not returned. Exhibit 21 is dated June 7, 1946, and indicates that the $2,460,000 had not yet been paid but was to be paid within two years. However, it was not paid in United States dollars but was actually paid in Rumanian currency in installments, and the payments to appellant were discontinued when a Communist took over as Rumanian Minister of Finance.
Although the appellant and the Rumanian government had endeavored to dissuade the Russians from their plan, the latter decided on November 29, 1944, to remove the appellant's tube mill to the Soviet Union. Since the transfer of the mill to the Soviet Union had become unavoidable, the Rumanian government succeeded in having it included in the reparations agreement of January 16, 1945, in order that the value of the plant might be credited against the $300,000,000 in reparations which Rumania was obligated to pay to the Soviet Union. In an annex to the reparations agreement, the value of the appellant's tube mill was fixed at 2,460,000 United States dollars, which the appellant stated was less than half the value of the mill. The Rumanian government agreed to pay appellant this sum in United States dollars because it considered it necessary to rebuild the tube mill and appellant was supposed to make purchases of equipment outside of Rumania for that purpose and for the purpose of rebuilding other industries.
In elaborating on what it has termed the second “discrepancy," the Service asserts that the appellant sought to create the impression in the Displaced Persons proceeding that the question of indemnification for the tube mill was considered and approved by the Radescu government and that E--G-'s testimony shows that this was not the case. G- was Rumanian Undersecretary of the Treasury from about October 1944 until March 6, 1945. The position of the Service appears to be that Rumania came completely under Communist domination on March 6, 1945, when Petru Groza succeeded Nicolae Radescue as premier. This is not correct. At that time the Soviet Union was one of our allies and actual hostilities in Europe did not cease until May 8, 1945 (V-E Day). Rumania did come more and more under the domination of the Soviet Union and had been completely absorbed into the Communist orbit by December 30, 1947, when King Michael abdicated. However, it is clear that there was no abrupt transition to a satellite status on March 6, 1945, when Groza became premier.
As we indicated above, Radescu is now deceased but he had appeared as a witness during the Displaced Persons proceeding. His testimony was to the effect that his government, although it had agreed to pay the appellant for the tube mill, was overthrown before payment was actually made.
When G- was questioned by an investigator of the Service on November 16, 1955, he was asked whether the Radescu government agreed at any time to pay the appellant $2,500,000 and he answered, “Not to my recollection.” He also indicated that the matter had not been discussed. During the present hearing G- was questioned concerning the apparent discrepancy between his statement of November 16, 1955, and Radescu's testimony in the Displaced Persons proceeding. G testified that, in principle, the Radescu government recognized the appellant's right to payment for the tube mill; that the appellant had requested $2,500,000 as payment; that it was a matter which was to be settled later; that the negotiations concerning the matter were initiated under the Radescu government; that the appellant may have discussed the matter directly with Radescu; and that when he (G-) left the government, the actual understanding in legal form was being prepared by lawyers for the appellant and for the Rumanian government. G- had testified in the Displaced Persons proceeding that property which the Rumanian government turned over to the Soviet Union as reparations was almost all paid for by the Rumanian government although the owners complained about the low value placed on their goods.
We are entirely in accord with the view expressed by the Assistant Commissioner on September 26, 1951, that the return of appellant's plants to him on April 12, 1945, and his indemnification for the tube mill do not establish affiliation with the Communist Party under the circumstances of this case. We do not believe that the testimony in the present proceeding concerning indemnification for the tube mill differs materially from that in the Displaced Persons proceeding, and we must disregard what is referred to as discrepancy numbered (2) on page 87 of the brief of the Service.
There are other matters discussed in the Assistant Commissioner's decision of September 26, 1951, which are again referred to in the brief of the Service. For example, the Assistant Commissioner stated that the appellant was found by the appropriate American officials dealing with blocked assets in this country to be entitled to the unfreezing of certain funds which appellant had in the United States, and an allegation that the appellant made gifts to the Communists shortly after coming to the United States was also fully discussed. These matters were the subject of adverse comments at pages 76-79 and 83 of the brief of the Service.
In the discussion concerning excludability under 8 U.S.C. 1182(a) (27), the Service has made frequent statements that the appellant remained mute or that he refused to answer questions. As we pointed out above, the appellant testified at considerable length in this proceeding, and he was willing to answer any questions of the special inquiry officer. In addition, most of the matters had been fully covered in the Displaced Persons proceeding in which hearing he submitted fully to the questioning of the examining officer.
That part of the brief of the Service relating to excludability under 8 U.S.C. 1182(a) (27), which has not yet been discussed, has received our careful consideration. It is not clear from the brief just how much of the information was before the Assistant Commissioner when he rendered his decision on September 26, 1951, but apparently he was aware of most of it. As to the matters concerning which the Assistant Commissioner had knowledge when he rendered his decision, we are inclined to agree with counsel that essentially the Service is attempting to rehash matters which have been decided. As to these, and considering the Assistant Commissioner's full discussion, we do not believe that his factual findings favorable to the appellant should now be disturbed unless there is some substantial basis for holding that the Assistant Commissioner reached an erroneous conclusion or unless reconsideration is appropriate because of subsequently discovered evidence. Neither in a reappraisal of the evidence in the Displaced Persons proceeding nor in a consideration of the new evidence produced in this proceeding do we find support for the various adverse statements and inferences set forth in the brief of the Service. We will not attempt to discuss each of these but a few illustrations will indicate our views concerning the matter.
On page 29 of the brief of the Service a reference was made to exhibit 152 and it was stated that this was an excerpt from a book allegedly under the sponsorship of General Antonescu. He was premier of Rumania when this book was published at Bucharest in 1941. Exhibit 152 indicates that the book mentioned is entitled "At the Margin of Disaster," and the excerpt is from a letter of Mihail Stelescu to Corneliu Codreanu dated April 1935. It indicates that Stelescu alleged that Codreanu made an unnamed individual Commissioner of the Dobruja and that this person brought Codreanu “funds from Malaxa and Company.” Codreanu was apparently the founder of the Iron Guard. However, it has not been established whether or not the writer of the letter was correct in his assertion and, in the event the appellant actually did give funds to the unnamed individual, whether or not the appellant was aware that the funds were then to be transferred to Codreanu. In addition, the appellant was arrested on January 23, 1941, in connection with an Iron Guard revolt against General Antonescu, the revolt having commenced about two days before that. Three investigations which
were ordered by General Antonescu resulted in clearing the appellant of complicity in this revolt. It is apparent that the 1935 letter was not regarded as significant by the Rumanian investigators.
In its brief (page 31) the Service referred to exhibit 155 as being in a sense pro-appellant. It is an article which appeared in the January 1956 issue of “Rumanian Exile,” an Iron Guard publication. We find no basis for considering the article pro-appellant; on the contrary, we believe it clearly shows antipathy toward the appellant on the part of this newspaper.
On page 30 of the brief of the Service, it was stated that exhibit 213 "clearly demonstrates M-'s role in some of the clandestine political incidents in Rumania,” and on page 36 of the brief it was stated that this exhibit clearly establishes that M- was so influential with the German Nazis that he was chosen by King Carol of Rumania to go to Berlin to placate the Nazis because of the killing of the leader of the Iron Guard. A-C witness hostile to the appellant, had originally produced the document which is now exhibit 213, and on July 10, 1951, it had been marked exhibit 59 in the Displaced Persons proceeding.
Exhibit 213 is an unsigned copy of a typewritten memorandum dated January 29 and 30, 1939, by G- G-, who was then Foreign Minister of Rumania. He testified as a witness for this appellant in the Displaced Persons proceeding and also executed an affidavit on July 17, 1951, in which he stated that he recalls having dictated such a note but cannot guarantee the authenticity of the copy which was produced. This 1939 memorandum was fully discussed by the Assistant Commissioner in his decision of September 26, 1951. He commented on the fact that G- and M- denied that the latter made a trip to Germany in January 1939. The Assistant Commissioner reached the conclusion that M— was opposed to the economic treaty of March 23, 1939, between Germany and Rumania and that it would be inconsistent to find that Mmade a German trip in January 1939 or that he had placated the German ire which had been aroused as a result of action against the Iron Guard.
Exhibits 22 to 33, inclusive, are captured German documents, and these are discussed at pages 32 to 35 of the brief of the Service. All of these are dated in 1937 and 1938 and those which might possibly be considered as having some pertinence to this proceeding relate to the appellant's trip to Berlin, Germany, in January 1937. This was apparently the trip that the appellant mentioned in the Displaced Persons proceeding when he stated that in 1936 the Rumanian government had assigned him on a mission to Germany to obtain machinery for arming Rumania. That is about what the documents concerning the appellant's trip in January 1937 seem to imply.
Our consideration of the captured German documents does not lead us to the same inferences which the Service has read into them. For example, with respect to exhibit 32, it is stated, “M-'s power and influence loomed so much in the relations between Rumania and Germany that he was made subject of special comment in this document." Exhibit 32 is a memorandum of a conference between the German Field Marshal General (Goering) and King Carol of Rumania on November 26, 1938. The only reference to the appellant is the following: "He (King Carol) said that he had entrusted the task of building up an arms industry to the industrial magnate, M-” There was nothing unusual about King Carol's statement because the greater part of Rumania's industrial capacity appears to have been centered in the appellant and M-A—; in 1936 the
appellant commenced, with the approval of the Rumanian government, a large factory for the manufacture of munitions; and in January 1937 he had been sent to Germany on an armament mission by the Rumanian government.
On page 42 of the brief, the following questions were propounded : “Wasn't it M— who stated that in 1936 he undertook to make arms deals with Germany? Wasn't this the beginning of the road that ended with the Wohlthat Pact and followed by German occupation of Rumania and the inevitable swinging of Rumania and other Balkan countries into the Nazi orbit?” The Service has also supplied its own answer to these questions on the next page of the brief where it was stated that, while history may record various dates when Germany marched into countries, “the Nazi troops began their journey to Rumania not in 1939 or 1940 but with M- -'s march to Berlin since, at least, 1936." Although the appellant held no political office in Rumania, it seems apparent that the Service regards him as being accountable for the execution of the Rumanian-German treaty of March 23, 1939 (exh. 11; referred to by the Service as the Wohlthat Pact), and for the other event which culminated when Rumania became an Axis satellite in September 1940. G-G one of the signers of the treaty of March 23, 1939, who was at that time Rumanian Minister for Foreign Affairs, testified in the Displaced Persons proceeding that he knew that M- opposed this treaty; the appellant also testified to that effect; and the Assistant Commissioner was satisfied that M— opposed the treaty.
In connection with the foregoing matter, the Service has quoted from a memorandum dated February 27, 1939, written by HW-, a German Minister, in which he stated that orientation of the Rumanian economy toward Germany would secure for Germany the dominant position in southeastern Europe. No doubt this was Germany's motivating purpose but it does not follow that the appellant's trip to Germany in January 1937 was to assist that coun