217 F.2d 404 (1st Cir. 1954), 4870, Cufari v. United States

Docket Nº:4870.
Citation:217 F.2d 404
Party Name:Salvatore CUFARI, Defendant, Appellant, v. UNITED STATES of America, Plaintiff, Appellee.
Case Date:December 06, 1954
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 404

217 F.2d 404 (1st Cir. 1954)

Salvatore CUFARI, Defendant, Appellant,

v.

UNITED STATES of America, Plaintiff, Appellee.

No. 4870.

United States Court of Appeals, First Circuit.

December 6, 1954

Page 405

Joseph J. Gottlieb, Boston, Mass., with whom Julius E. Rosengard, Boston, Mass., was on the brief, for appellant.

Charles F. Choate, Asst. U.S. Atty., Boston, Mass., with whom Anthony Julian, U.S. Atty., boston, Mass., was on the brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit judges.

WOODBURY, Circuit Judge.

This is an appeal from a judgment setting aside and vacating an order admitting an alien to United States citizenship and cancelling his certificate of naturalization. 120 F.Supp. 941. It presents the same problem considered by this court in Brenci v. United States, 1 Cir., 1949, 175 F.2d 90, for the basic question again is whether the Government's evidence is persuasive enough to establish that the appellant in order to obtain naturalization concealed the fact that he had been arrested from the naturalization officers and the court which naturalized him.

The appellant, Salvatore Cufari, was born in Italy in 1901 and entered the United States through the port of New York in 1914. He went immediately to Springfield in Hampden County, Massachusetts, where he has lived continuously ever since and where he completed an eighth grade education.

Between January 23, 1923 and March 1, 1927, Cufari was arrested nine times, and on three other occasions during that period he was formally charged with criminal offenses although apparently not actually placed under arrest. The crimes with which he was charged ranged from petty misdemeanors such as disturbing the peace, to more serious offenses such as buying, receiving, and concealing stolen property, of which he was found not guilty, and defacing the serial number of a motor vehicle and transporting intoxicating liquor without a license, of both of which he was found guilty and fined $150 and $300 respectively.

Within three months after the last offense with which he was charged, that is to say on May 27, 1927, Cufari filed a petition for naturalization in the Superior Court of the Commonwealth of Massachusetts for Hampden County. Then, in conformity with established procedure under the statute applicable at the time, Act of June 29, 1906, 34 Stat. 596, as amended, Cufari as the next step in the naturalization process presented himself and his two witnesses for preliminary examination by a Naturalization Examiner assigned for that purpose. At that examination entries were made by Examiner John F. Davis, deceased, on a Department of Labor Form 2328 called a 'docket slip, ' which had already been partly filled out. On the face of this

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document in the left hand column under appropriate headings appears in the handwriting of another Examiner the petitioner's name, residence, business, and nationality, and under that the names, businesses, and residences of his two witnesses. Under the name of each witness is interlined, apparently in Davis' handwriting, the notation 'no arrests.' In the right hand column of the docket slip under the heading 'Result of Examination, ' notations in Examiner Davis' handwriting, except for Cufari's signature, appear in the following pattern:

'Reads

O.K.

S. (check mark)

Arr. N.Y. 4-16-14- Mass. Do.- Spfld since 1914 Nicholas Curto, grocer, 1156 Columbus Ave past 7 mos Father, Filippo lives here, not citizen never absent no arrests School to 8th grade.

Salvatori Cufari

7/25/1927 JFD'

In September 1927 Cufari appeared with his witnesses at a naturalization session of the Superior Court for Hampden County at which the Government was represented by Naturalization Examiner Patrick J. Mahoney, now deceased. As a result of a hearing regularly conducted in open court an order was entered admitting Cufari to United States Citizenship and he was issued a Certificate of Naturalization.

Twenty-six years later, in August 1953, the United States Attorney for the District of Massachusetts by his assistant filed a complaint in the court below under § 340(a) of the Immigration and Nationality Act...

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