Brenci v. United States

• Decision Date: 01 June 1949
• Docket Number: No. 4393.,4393.
• Citation: 175 F.2d 90
• Parties: BRENCI v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

175 F.2d 90 (1949)

BRENCI v. UNITED STATES.

No. 4393.

United States Court of Appeals First Circuit.

June 1, 1949.

Simon B. Stein, Boston, Mass. (Henry J. Stein, Boston, Mass., on the brief), for appellant.

Edward A. Counihan, III, Assistant U. S. Attorney, Boston, Mass. (William T. McCarthy, United States Attorney, Boston, Mass., on the brief), for appellee.

Before MAGRUDER, Chief Judge, and MARIS and WOODBURY, Circuit Judges.

WOODBURY, Circuit Judge.

This is an appeal from a judgment entered by the District Court of the United States for the District of Massachusetts revoking and setting aside a previous order of the same court admitting the appellant, Alfred Brenci, to United States citizenship, and cancelling his certificate of naturalization.

The judgment appealed from was entered on a petition filed by the United States Attorney for the District of Massachusetts pursuant to § 338(a) of the Nationality Act of 1940, 54 Stat. 1158-1159, 8 U.S.C.A. § 738(a), in which it is alleged that the appellant's naturalization in the court below on August 12, 1922, "was fraudulently and illegally procured" in that in the course of his naturalization proceedings he had willfully and knowingly concealed two convictions for felonies in the Superior Court of the Commonwealth of Massachusetts.

After hearing, the court below, having denied a motion by the Government for summary judgment, found that the appellant had been arrested, convicted and sentenced to one year in the House of Correction for rape in 1915, and had again been arrested, convicted and sentenced to pay a fine of $100 for armed assault and carrying a loaded revolver (actually, although he was indicted on both charges, he was convicted and sentenced on the second charge only) in 1921 as alleged in the petition; that he had testified under oath at his preliminary examination by a naturalization examiner in 1920 that he had been arrested in 1912 and again in 1914 for the petty offense of leaving an unlighted obstruction on a sidewalk but had not disclosed his conviction for rape in 1915; that he had failed to disclose either of his felony convictions to the court below when his petition for naturalization came on to be heard in 1922; and that his "failure to disclose these convictions was willful and fraudulent in that he knew that if he admitted them his petition for naturalization would in all likelihood be denied." Wherefore the court below concluded that the appellant's naturalization was fraudulently procured and must be revoked and his certificate of naturalization must be cancelled.

The appellant makes no attempt to deny his convictions in the Massachusetts Superior Court as set out herein or to deny his failure to disclose those convictions in the course of his naturalization proceedings. His principal defense at the trial was that those convictions did not reflect on his moral character for the reason that the offenses on which they were based did not involve moral turpitude, in support of which he relied upon an affidavit filed in opposition to the Government's motion for summary judgment in which he asserted that the person he was charged with raping, although below the age of consent, in fact consented to having sexual relations with him, and that the assault charge grew out of an attempt on his part to protect his sister from her intoxicated husband and three other men. The court below, we think entirely correctly, disposed of this defense in its memorandum opinion on the ground that whether or not the crimes involved moral turpitude was not in issue; the only issue being whether the appellant was actually convicted and sentenced as alleged, and whether he willfully and fraudulently failed to disclose those convictions in the course of his naturalization proceedings. Now, on this appeal, the appellant's contention is that the Government has failed to sustain its burden of proof on the issue of his fraudulent concealment of his conviction for rape in 1915 from the naturalization examiner when his petition for naturalization was filed in 1920, and on the issue of his fraudulent concealment both of his 1915 conviction for rape and of his 1921 conviction for carrying a loaded pistol, from the court below when his petition for naturalization was heard in 1922.

Although proceedings for denaturalization under § 338(a) of the Nationality Act of 1940, supra, are not criminal in their nature, the Government to prevail must "prove its charges in such cases by clear, unequivocal and convincing evidence which does not leave the issue in doubt." Klapprott v. United States, 335 U.S. 601, 612, 69 S.Ct. 384, 389, citing Schneiderman v. United States, 320 U.S. 118, 158, 63 S.Ct. 1333, 87 L.Ed. 1796. See also Baumgartner v. United States, 322 U.S. 665, 671, 64 S.Ct. 1240, 88 L.Ed. 1525. And it is the duty of this court as an appellate tribunal to examine the Government's evidence to ascertain whether it meets this high standard of proof. Knauer v. United States, 328 U.S. 654, 657, 66 S.Ct. 1304, 90 L.Ed. 1504; United States v. Hauck, 2 Cir., 155 F.2d 141, 144.

We turn therefore to the evidence introduced by the Government at the trial in the court below.

To prove its charge that the appellant concealed his conviction for rape at his preliminary examination the Government, over the appellant's objection, introduced as an exhibit its so called "docket slip" pertaining to the appellant's naturalization. This document was introduced through the testimony of a veteran Naturalization Examiner who said that it came from the records of the Immigration and Naturalization Service, that he had himself made out part of it, and that it was a departmental form (No. 2328) regularly used by the Naturalization Service of the United States Department of Labor at the time the appellant was admitted to citizenship as an office record of the statements made by aliens when applying for citizenship as to their length of residence, absences, arrests on criminal charges, etc. On the back of this exhibit appears the notation: "Arrested: — 1912 — Boston — leaving obstruction on sidewalk without a light. Also same offense in 1914." To prove its charge that the appellant concealed both his 1915 conviction for rape and his 1921 conviction for carrying a loaded pistol at the hearing in the court below on his petition for naturalization, the Government introduced a transcript of a statement in question and answer form made by the appellant to an officer of the United States Immigration and naturalization Service on June 2, 1945, in Boston, in which, after admissions by the appellant as to his convictions as stated herein, the following appears:

"Q. What was your reason for failing to state to the naturalization officials and to the judge of the United States District Court when you were questioned by them while under oath, duly administered on August 12, 1922, the fact that you had been arrested at Chelsea, Mass. on August 2, 1915 on a charge of rape, for which you were sentenced to a year...