Stacher v. United States

• Decision Date: 15 July 1958
• Docket Number: No. 15453.,15453.
• Citation: 258 F.2d 112
• Parties: Joseph STACHER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

258 F.2d 112 (1958)

Joseph STACHER, Appellant, v. UNITED STATES of America, Appellee.

No. 15453.

United States Court of Appeals Ninth Circuit.

July 15, 1958.

J. E. Simpson, Frank P. Doherty, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Max F. Deutz, Arline Martin, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before CHAMBERS and BARNES, Circuit Judges, and JERTBERG, District Judge.

BARNES, Circuit Judge.

This is an appeal from a judgment entered by the District Court of the United States for the Southern District of California, Central Division, revoking and setting aside an order of the United States District Court of the State of New Jersey, made on or about May 12, 1930, admitting the defendant Joseph Stacher to United States citizenship; and cancelling his Certificate of Naturalization, No. 3275913.

The judgment appealed from was entered on an amended complaint filed by the United States Attorney for the Southern District of California pursuant to Section 340(a) of the Immigration and Nationality Act of 1952 (66 Stat. 260), 8 U.S.C.A. § 1451(a),¹ in which it is alleged that appellant's naturalization in the New Jersey District Court on May 31, 1930, was procured upon sworn statements of appellant and his allegations under oath which amounted to concealment of material facts and material misrepresentation with respect to his moral character, his use of other names and his previous arrests.

The matter was tried by the court, sitting without a jury, no jury having been requested.

The material facts concealed and the misrepresentations charged related to (1) appellant's moral character; (2) various arrests and charges of violation of law prior to January 22, 1930 (the date appellant's petition for naturalization was filed); (3) the use of names other than Gdale Oistaczer and Joe (or Joseph) Stacher (including Joe or Joseph Rosen, J. P. Harris, Doc Harris, Doc Stacher, George Kent, and Harry Goldman); (4) his association with gangsters and bootleggers, and membership in the "Third Ward Gang" of Newark, New Jersey. The amended complaint charged the following "arrests and charges" which appellant had failed to disclose:

(1) November 26, 1924, for breaking, entering, and larceny;

(2) April 21, 1926, for assault and battery;

(3) August 18, 1926, for assault and battery;

(4) June 7, 1927, for atrocious assault and battery;

(5) July 11, 1927, for atrocious assault and battery;

(6) August 15, 1927, for robbery;

(7) December 4, 1927, for interfering with officer guarding still for Federal authorities;

(8) December 9, 1927, for atrocious assault and battery, and fined $50;

(9) May 29, 1928, "open charge" (dismissed).²

Defendant, by amended answer, denied the May 29, 1928, arrest and charge and explained the December 4, 1927, arrest and charge.³ As to the other arrests appellant admitted "he was either arrested or notified to appear before, a court or courts in the City of Newark, State of New Jersey, having jurisdiction over the offenses filed in said courts, charging Joseph or Joe Rosen or Joseph Stacher with the commission of the said offenses."

Appellant further raised the separate defenses that no cause of action was stated, res adjudicata, estoppel and laches, the Statute of Limitations, lack of jurisdiction over appellant because of his residence in a different jurisdiction (to-wit: Nevada) at the time the complaint was filed and served (February 2nd and 3rd, 1953, respectively⁴), and inadequacy of the affidavit filed with the complaint. By pretrial motion, all separate defenses were stricken.

Appellant made a motion to quash, dismiss or transfer the case, upon ground of improper venue, which was denied after hearing. This issue was again raised at the trial and extensive evidence was introduced by both sides. Again the court ruled that appellant, for the purposes of the Act under which he was here charged, "resided" within the Southern District of California.

The trial judge, by pretrial order pursuant to Rule 16, Federal Rules of Civil Procedure, 28 U.S.C., ruled that evidence of specific acts or conduct would not be admissible at the trial to prove the good or bad character of defendant. However, he permitted the government to make an offer of proof for the record.⁵

After hearing the evidence, the court below continued the matter to permit each side to put in additional evidence and briefs, largely on the question of jurisdiction. Thereafter, the said court ordered judgment for the government. Appellant's counsel moved to set aside the submission of the case, to vacate the order for judgment and to re-open the case. This motion was granted. Voluminous additional testimony by deposition, and orally, was introduced by both sides. The court below thereafter re-submitted the case, and found against appellant by holding the government had established "by clear unequivocal and convincing evidence that the defendant under oath had stated he had no previous arrests," while in fact appellant had had "a prior criminal record."

The court further found with respect to the First Cause of Action, charging concealment, (a) that at the time he filed his petition for citizenship his name was Gdale Oistaczer, that he was known also as Joe or Joseph Rosen;⁶ (b) that on September 16, 1929, he signed his preliminary form for Petition for Citizenship and certified the statements therein were true;

"Said Preliminary Form contained the printed question:

"`27. Have you ever been arrested or charged with violation of any law of the United States or state or any city ordinance or traffic violation?\' And the answer in longhand was, `No.\', which answer was false, as the defendant well knew.";

(c) that on January 22, 1930, after being sworn to tell the truth, appellant, when asked by Naturalization Examiner Braden if he had ever been arrested or convicted of a crime, answered "no"; that Braden "made a notation in his own handwriting on the reverse side of the triplicate copy of the defendant's Petition for Citizenship * * * `Arr: No'"; that appellant's said answer was false, as he well knew;⁷ (d) that in the five years prior to appellant's petition, he had been arrested for or charged with the commission of a crime on eight occasions;⁸ (e) that as a result of appellant's concealment of such material facts, the Immigration and Naturalization Service was prevented from making a full and proper investigation of appellant's qualifications for citizenship, and there resulted the Examiner's recommendation to the court that citizenship should be granted;⁹ (f) that the necessary affidavit showing good and sufficient cause for the present action had been filed.¹⁰

Similar findings of fact, which amounted to wilful misrepresentation on appellant's part, were made to support the government's second cause of action.

The court below concluded that the appellant's naturalization was procured by concealment of material facts and by wilful misrepresentation and revoked his citizenship.

Appellant subsequently moved for a new trial and to revise the Findings of Fact and Conclusions of Law. These motions were denied and this appeal followed.

Thus the case was tried on two issues — was there jurisdiction over the appellant in this proceeding; and did appellant make false answers to the examiner's questions? The court below decided both issues in favor of the government. We will consider the two points.

I. Jurisdiction in the District Court, Southern District of California, Over the Appellant.

The government contended that appellant was a resident of California on February 2, 1953 (the controlling date), while appellant asserts he had been a resident of New Jersey for thirty-eight years prior to June, 1950, and of Nevada since June, 1950, up to and including February 2, 1953.

Section 340(a) of the Immigration and Nationality Act of 1952 provides that revocation proceedings shall be brought "in any court specified in subsection (a) of section 310 of this title, in the judicial district in which the naturalized citizen may reside at the time of bringing suit." Emphasis added.

Section 310(a) vests "exclusive jurisdiction" to naturalize persons and provides that such jurisdiction "shall extend only to such persons resident within the respective jurisdiction of such courts." Emphasis added.

28 U.S.C. section 1391(b) provides:

"A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside." Emphasis added.

We accept appellant's position that there is an essential difference between "domicile" which generally involves intent, and "residence" which generally involves an actual place of abode. With this position the government agrees. We are then, not concerned with "intent."

The court passed on this issue at least twice; first, by way of denying defendant's motion to quash, denied June 30, 1953, and a second time, at the trial after additional evidence had been presented on the issue.

In determining the issue of jurisdiction, we must first recognize that it is a question of fact, to be determined by the trial judge. Unlike the rule of law which governs us in the second phase of this case, here we are faced with the provisions of Rule 52(a), Federal Rules of Civil Procedure, which tell us that "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses."

Further, the government was the prevailing party below, and hence we must take that view of the evidence most favorable to it. Appellee is entitled to the benefit of all favorable inferences from the facts proved relative to the issue of residence. If, when so viewed, there was substantial evidence to sustain the findings, then the judgment may not be reversed by this Court unless against the clear weight of the evidence or unless...