247 F.2d 378 (2nd Cir. 1957), 250, United States v. Matles

Docket Nº:250, 24435.
Citation:247 F.2d 378
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James J. MATLES, Defendant-Appellant.
Case Date:June 10, 1957
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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247 F.2d 378 (2nd Cir. 1957)

UNITED STATES of America, Plaintiff-Appellee,


James J. MATLES, Defendant-Appellant.

Nos. 250, 24435.

United States Court of Appeals, Second Circuit.

June 10, 1957

Argued Jan. 10, 1957.

Frank J. Donner, of Donner, Kinoy & Perlin, New York City (Samuel Gruber, Stamford, Conn., and Arthur Kinoy and Marshall Perlin, of Donner, Kinoy & Perlin, New York City, on the brief), for defendant-appellant.

Leonard P. Moore, U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Cornelius W. Wickersham, Jr., and Howard B. Gliedman, Asst. U.S. Attys., Brooklyn, N.Y., on the brief), for plaintiff-appellee.

Before CLARK, Chief Judge, and LUMBARD and WATERMAN, Circuit Judges.

CLARK, Chief Judge.

This is an appeal from an order punishing a defendant in a denaturalization action who refused to obey a district court order directing him to be sworn to give his oral deposition before trial. Three issues are presented: (1) whether denaturalization proceedings are invalid if the affidavit of good cause required by 8 U.S.C. § 1451(a) is filed subsequent to the complaint; (2) whether such affidavits must be based on personal knowledge of the affiant; (3) whether denaturalization proceedings are sufficiently criminal in their nature to permit the defendant to refuse to take the stand on grounds of self-crimination.

The action was instituted on December 16, 1952, to vacate, cancel, and set aside a certificate and order of naturalization granted the defendant in 1934; a verified complaint was filed, but no affidavit of good cause. On May 15, 1953, the defendant moved to dismiss the complaint for want of such an affidavit; and on September 16, 1953, by stipulation the Government filed an amended complaint accompanied by the affidavit of Reuben Speiser, verified on November 26, 1952. The affiant, an attorney

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in the Department of Justice, swore that he had access to the official records of the Immigration and Naturalization Service, from which it appeared that the defendant at the time of his naturalization in 1934 had sworn that he believed in the form of government of the United States and was not associated with any organization that advocated revolution; that he would renounce forever all allegiance to any foreign state; and that he would bear true faith and allegiance to the United States. The records further showed-- so it continued-- that he was a member of the Communist Party from 1929 until the present time; that he and the Party promoted the political activities of the U.S.S.R. and advocated violent revolution, assassination of government officers, unlawful destruction of property, and sabotage. Finally it was alleged that the defendant at all times since 1929 bore allegiance to the Soviet Union and that his false statements were intentional and deliberate.

On September 23, 1953, the defendant's motion to dismiss the complaint was denied. D.C.E.D.N.Y., 115 F.Supp. 261. In the summer of 1956 the Government sought to take the defendant's deposition pursuant to F.R.C.P., rule 26. After the defendant's motion to vacate notice of his examination was denied he appeared for examination, but refused to be sworn. He was then taken before the district court, which directed that he be sworn; and he again refused to take the oath. An order to show cause why he should not be punished for contempt was then issued and he was found guilty of contempt and sentenced to three months' imprisonment, which was stayed for this appeal.

First. The requirement of an affidavit first came into our law in § 15 of the Act of June 29, 1906, 34 Stat. 596, 601, and now appears without substantial change in 8 U.S.C. (Supp. III) § 1451(a) thus: '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 denaturalization, etc. The defendant claims that the affidavit of good cause is a jurisdictional prerequisite to a denaturalization proceeding and that a proceeding begun without one must be dismissed and cannot be cured by its subsequent filing. For this proposition he cites the recent Supreme Court decision in United States v. Zucca, 351 U.S. 91, 76 S.Ct. 671, 100 L.Ed. 964. There a denaturalization proceeding was commenced without filing an affidavit, and the district court ordered the complaint dismissed unless the Government filed the affidavit within 60 days. As this was not done the complaint was dismissed. D.C.S.D.N.Y., 125 F.Supp. 551. We affirmed the district court, 2 Cir., 221 F.2d 805, and were in turn affirmed by the Supreme Court.

In the Zucca case the Government refused to amend its complaint and file the required affidavit when given the opportunity by the district court; instead it argued that filing is not a prerequisite to maintaining a denaturalization proceeding. In the present case the Government was again given an opportunity to file its affidavit belatedly, but this time it took advantage of the offer. The defendant's attorneys had stipulated: 'Service of a copy of the amended complaint herein is admitted and the amended complaint is and shall be deemed to be substituted for the original complaint.' To this complaint a copy of the previously executed affidavit was attached as an exhibit. The sole question on this branch of the case is whether the trial judge erred in allowing such delayed filing, and whether he should have insisted on the initiation of a new action by a new service of process. This issue is not settled in the Zucca case and has been much mooted by district judges. 1

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Denaturalization proceedings are civil actions subject to the Federal Rules of Civil Procedure under which the initiation of the suit has dwindled in significance as a decisive event. For the freedom of amendment under, e.g., F.R. 15(a) and (b) permits what is essentially a new suit to be instituted by a shift during the course of litigation from one claim to another. 2 So in the classic case of Hackner v. Guaranty Trust Co. of New York, 2 Cir., 117 F.2d 95, certiorari denied 313 U.S. 559, 61 S.Ct. 835, 85 L.Ed. 1520, we actually allowed the substitution of a new unrelated plaintiff for the one who could not show federal jurisdiction. See also Bowles v. J. J. Schmitt & Co., 2 Cir., 170 F.2d 617, 621. In this case, where the action...

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