275 F.2d 355 (2nd Cir. 1960), 58, United States v. Costello

Docket Nº:58, 25690.
Citation:275 F.2d 355
Party Name:UNITED STATES of America, Appellee, v. Frank COSTELLO, Appellant.
Case Date:February 17, 1960
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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275 F.2d 355 (2nd Cir. 1960)

UNITED STATES of America, Appellee,

v.

Frank COSTELLO, Appellant.

Nos. 58, 25690.

United States Court of Appeals, Second Circuit.

February 17, 1960

Argued Nov. 17, 1959.

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Edward Bennett Williams, Washington, D.C. (Agnes A. Neill and Vincent J. Fuller, Washington, D.C., Morris Shilensky, New York City, and Hays, St. John, Abramson & Heilbron, New York City, on the brief), for appellant.

Morton S. Robson, Asst. U.S. Atty., Southern District of New York, New York City (S. Hazard Gillespie, Jr., U.S. Atty., S.D.N.Y., New York City, on the brief), for appellee.

Before MAGRUDER, MOORE and FRIENDLY, Circuit Judges.

MAGRUDER, Circuit Judge.

This is another of those troublesome denaturalization cases, instituted by the government in an effort to have the court cancel a certificate of naturalization issued over thirty years ago. The proceeding is brought pursuant to § 340(a) of the Immigration and Nationality Act of 1952, as amended, 68 Stat. 1232. This statute contains no provision for limitations, nor is there any other federal statute applicable to the case. And, as Hughes, C.J., said in United States v. Summerlin, 1940, 310 U.S. 414, 416, 60 S.Ct. 1019, 1020, 84 L.Ed. 1283:

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'It is well settled that the United States is not bound by state statutes of limitation or subject to the defense of laches in enforcing its rights.'

It is impossible to say that the statutory provisions for the issuance by the court of naturalization certificates, under certain prescribed conditions, do not constitute a proper judicial function. Tutun v. United States, 1926, 270 U.S. 568, 46 S.Ct. 425, 70 L.Ed. 738. And despite what may seem to be the harshness of the result, it seems impossible to say that the Congress cannot constitutionally provide a proceeding for the cancellation of a certificate obtained by fraud or concealment. Knauer v. United States, 1946, 328 U.S. 654, 673, 66 S.Ct. 1304, 90 L.Ed. 1500. It was so provided way back in the Act of 1906 which, in § 15 thereof, vested jurisdiction in the district courts of suits by the United States Attorney on behalf of the United States 'for the purpose of setting aside and canceling a certificate of citizenship on the ground of fraud or on the ground that such certificate of citizenship was illegally procured.' 34 Stat. 601. See Johannessen v. United States, 1912, 225 U.S. 227, 32 S.Ct. 613, 56 L.Ed. 1066. Such provision for denaturalization was carried forward by Congress into § 338(a) of the Nationality Act of 1940 (54 Stat. 1158, 1159). In the Immigration and Nationality Act passed in 1952, denaturalization proceedings were also provided for, but the Congress struck out the earlier provision for cancellation of a certificate that had been illegally issued, and confined cancellation to cases where the certificate had been procured 'by concealment of a material fact or by willful misrepresentation.' 66 Stat. 260. This provision was reenacted by the Congress in 1954. 68 Stat. 1232.

The Supreme Court has never told us that a denaturalization proceeding partakes of the character of a criminal proceeding. Indeed, in the Johannessen case, supra, the Court upheld the constitutional validity of a provision in § 15 of the Act of 1906 to the effect that the denaturalization provisions should apply not only prospectively but also 'to all certificates of citizenship which may have been issued heretofore by any court exercising jurisdiction in naturalization proceedings under prior laws.' 34 Stat. 601. In this connection the Court said (225 U.S. at page 242, 32 S.Ct. at page 617): 'It is, however, settled that this prohibition is confined to laws respecting criminal punishments, and has no relation to retrospective legislation of any other description. * * * The act imposes no punishment upon an alien who has previously procured a certificate of citizenship by fraud or other illegal conduct. It simply deprives him of his ill-gotten privileges.'

Although the Supreme Court has many times upheld a decree for the cancellation of a certificate of naturalization, it has prescribed an exacting quantum of proof as requisite to establishing a case by the government against a certificate holder. The case for cancellation must be 'clear, unequivocal, and convincing, ' and should not leave 'the issue in doubt.' See Schneiderman v. United States, 1943, 320 U.S. 118, 158, 63 S.Ct. 1333, 1352, 87 L.Ed. 1796; Baumgartner v. United States, 1944, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525; Knauer v. United States, supra, 1946, 32 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500.

If a denaturalization case is a sort of civil proceeding, we are at a loss to see why our scope of review is not limited by the 'clearly erroneous' test of the unqualified Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. If that is so, then once we are convinced that the district court was aware of and applied the proper strict standards of proof-- which clearly appears in the case at bar-- we ought not to upset its finding that the defendant had obtained his certificate of citizenship by fraud unless we are satisfied that such finding was 'clearly erroneous.' See Corrado v. United States, 6 Cir., 1955, 227 F.2d 780, 783. Of course, fraud is an internal state of mind, and it is possible that a man may give an incorrect answer to a question in

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a bona fide but mistaken belief as to what the question calls...

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