125 F.Supp. 551 (S.D.N.Y. 1954), United States v. Zucca

Citation:125 F.Supp. 551
Party Name:UNITED STATES of America, Plaintiff, v. Ettore ZUCCA, also known as Mario Sarni, also known as Ettore Sarni Zucca, Defendant.
Case Date:November 16, 1954
Court:United States District Courts, 2nd Circuit, Southern District of New York
 
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Page 551

125 F.Supp. 551 (S.D.N.Y. 1954)

UNITED STATES of America, Plaintiff,

v.

Ettore ZUCCA, also known as Mario Sarni, also known as Ettore Sarni Zucca, Defendant.

United States District Court, S.D. New York

Nov. 16, 1954

J. Edward Lumbard, U.S. Atty. for Southern Dist. of N.Y., New York City, George C. Mantzoros, Asst. U.S. Atty., New York City, of counsel, for United States.

Judd & Gurfein, New York City, Orrin Judd, New York City, of counsel, for defendant.

Page 552

PALMIERI, District Judge.

The defendant was naturalized by this Court on January 4, 1944. The United States now brings this action under section 340(a) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 260, 8 U.S.C. § 1451(a) (1952 ed.), to revoke and set aside the order admitting the defendant to citizenship and to cancel the defendant's certificate of naturalization on the grounds that the defendant's naturalization was illegally procured and that the defendant concealed material facts and wilfully misrepresented others in the course of the proceedings leading to his naturalization.

The defendant has moved that the complaint be dismissed because of (1) the Government's alleged failure to draft an adequate complaint and (2) the Government's failure to file an affidavit showing good cause for the institution of the instant proceeding.

The defendant argues that the Government's complaint is procedurally inadequate because it allegedly fails to comply with Rules 8(a), 8(c) (sic) , 9(b), and 10(b) of the Rules of Civil Procedure, 28 U.S.C.A. These Rules deal with the general rules of pleading, the particularity with which fraud should be pleaded, and the form of pleadings. Defendant asserts that the complaint fails to give fair notice of the Government's claim, but it is clear that this assertion is without merit. The complaint alleges that the defendant's naturalization was illegally procured in that it was prohibited by section 305 of the Nationality Act of 1940 and that the defendant concealed material facts and misrepresented others in the course of the proceedings leading to his naturalization. It sets forth the alleged act which made the procurement of defendant's naturalization illegal and the allegedly concealed and misrepresented facts with what may well be unnecessary specificity for a civil complaint.

In view of this, it would appear that the defendant is merely saying that a better complaint should have been drawn. However, it is not the function of this court to pass on the artistic merits of pleadings. See Dioguardi v. Durning, 2 Cir., 1944, 139 F.2d 774. The complaint not only gives the defendant fair notice of the Government's claim but it also informs him of the alleged facts upon which that claim is based. The motion to dismiss the complaint because it is procedurally inadequate is therefore denied.

The defendant has also moved that the complaint be dismissed because of the Government's failure to file an affidavit showing good cause for the institution of this proceeding. He contends that the filing of such an affidavit is required by section 340(a), 8 U.S.C.A. § 1451(a) (1952 ed.), which reads:

'It shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings * * * for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization * * *.'

Section 340(a) is derived from section 338(a) of the Nationality Act of 1940, 54 Stat. 1137, 1158 which was derived from section 15 of the Act of June 29, 1906, 34 Stat. 596, 601, the first enactment providing for denaturalization on the grounds of fraud or illegal procurement. See S. Rept. No. 1137, 82d Cong., 2d Sess. 45 (1952); S. Rept. No. 1515, 81st Cong., 2d Sess. 755 (1950) The 1906 Act contained the language:

'it shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings * * *'

to denaturalize a person on the grounds of fraud or illegal procurement; and the quoted language was incorporated into the 1940 and 1952 acts without Congressional comment.

The Government contends that the source of a United States Attorney's

Page 553

power to institute civil denaturalization actions is the

'duty of each United States attorney, within his district, to * * * prosecute * * * for the government, all civil actions, suits or proceedings in which the United States is concerned * * *.'

28 U.S.C. § 507(a)(2) (1952 ed.). The position taken by the Government is that United States Attorneys had the power to institute civil denaturalization actions before the passage of the Act of June 29, 1906, and that the 1906 Act and its later re-enactments did not circumscribe this power. See H.R. Doc. No. 46, App. D, 59th Cong., 1st Sess. 76, 78 (1905); Bindczyck v. Finucane, 1951...

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