365 U.S. 265 (1961), 59, Costello v. United States

Docket Nº:No. 59
Citation:365 U.S. 265, 81 S.Ct. 534, 5 L.Ed.2d 551
Party Name:Costello v. United States
Case Date:February 20, 1961
Court:United States Supreme Court
 
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Page 265

365 U.S. 265 (1961)

81 S.Ct. 534, 5 L.Ed.2d 551

Costello

v.

United States

No. 59

United States Supreme Court

Feb. 20, 1961

Argued December 12, 1960

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

Petitioner was naturalized in 1925, and proceedings were instituted in 1952 to revoke his citizenship because of fraudulent procurement. That proceeding was dismissed because the Government had failed to file an affidavit of good cause, and the District Court declined to specify that the dismissal was "without prejudice." A new proceeding to revoke his citizenship was instituted in 1958 under § 340(a) of the Immigration and Nationality Act of 1952, on the ground that his naturalization was procured by concealment of a material fact and by willful misrepresentation. In applying for naturalization, petitioner had sworn that his occupation was "real estate." After considering the evidence, the District Court found that this was "willful misrepresentation and fraud," and that his true occupation was bootlegging, and it revoked his citizenship.

Held: the judgment is affirmed. Pp. 266-288.

1. On the record in this case, the finding that petitioner willfully misrepresented his occupation is supported by clear, unequivocal and convincing evidence -- the standard of proof required of the Government in cases such as this. Pp. 269-278.

(a) Decisions both before and after repeal of the Eighteenth Amendment indicate that a known bootlegger probably would not have been admitted to citizenship in 1925. Pp. 270-272.

(b) However "occupation" be defined, whether in terms of primary source of income, expenditure of time and effort, or how the petitioner himself viewed his occupation, the evidence supports the conclusion that real estate was not his occupation, and that he was, in fact, a large-scale bootlegger. Pp. 272-275.

(c) There is evidence that petitioner invested his illicit earnings in real estate in the hope of profit; but he was not deriving his principal income from the real estate business, spending any appreciable time conducting such business, or making it his central business concern. Pp. 275-277.

(d) The Government's proofs show not only that the petitioner's statements were factually incorrect, but also that they were willfully false. P. 277.

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(e) The conclusion that petitioner's representations as to his occupation were willfully false is reached without reliance upon any inference from his failure to take the stand in this proceeding and testify in his own behalf. Pp. 277-278.

2. None of petitioner's admissions as to his true occupation at the time of his naturalization was so tainted by wiretapping as to require its exclusion from evidence in the proceedings for revocation of his citizenship. Pp. 278-280.

3. In the circumstances of this case, the lapse of 27 years from the time of petitioner's naturalization to the time of the filing in 1952 of the Government's first denaturalization complaint did not bar the Government from instituting this proceeding to revoke his citizenship. Pp. 281-284.

4. Dismissal of the first denaturalization proceeding for failure to file an affidavit of good cause was a dismissal "for lack of jurisdiction," within the meaning of Rule 41(b) of the Federal Rules of Civil Procedure. Therefore, the failure of the District Court to specify that the dismissal was "without prejudice" to the filing of a new complaint did not bar the second denaturalization proceeding under that Rule. Pp. 284-288.

275 F.2d 355 affirmed.

BRENNAN, J., lead opinion

MR. JUSTICE BRENNAN, delivered the opinion of the Court.

The petitioner became a naturalized citizen on September 10, 1925. The District Court for the Southern District of New York revoked his citizenship on March 9, 1959, in this proceeding brought by the Government under § 340(a) of the Immigration and Nationality Act of 1952. That Act authorizes revocation of naturalized

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citizenship

on the ground that such order and certificate of naturalization were procured by concealment of a material fact or by willful misrepresentation. . . .1

The petitioner, in 1925, swore in his Preliminary Form for Naturalization, in his Petition for Naturalization, and when he appeared before a Naturalization Examiner, that his occupation was "real estate." The District Court found that this was "willful misrepresentation and fraud," and that "his true occupation was bootlegging," 171 F.Supp. 10, 16. The Court of Appeals for the Second Circuit affirmed, 275 F.2d 355. We granted certiorari. 362 U.S. 973.

[81 S.Ct. 536] An earlier denaturalization complaint brought under 8 U.S.C. (1946 ed.) § 738(a), the predecessor of § 340(a), was dismissed on the ground that wiretapping may have infected both the Government's affidavit of good cause and its evidence. United States v. Costello, 145 F.Supp. 892. The Court of Appeals for the Second Circuit reversed on the ground that the Government should have been afforded an opportunity to show that its evidence either was untainted or was admissible

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in any event. 247 F.2d 384. We granted certiorari and reversed, 356 U.S. 256, on a ground not considered below, namely, that the affidavit of good cause, which is a prerequisite to the initiation of denaturalization proceedings under § 340(a), United States v. Zucca, 351 U.S. 91, was not filed with the complaint. On remand, the District Court declined to enter an order of dismissal "without prejudice," and entered an order which did not specify whether the dismissal was with or without prejudice. The Government did not appeal from that order, but brought this new proceeding under § 340(a) by affidavit of good cause and complaint filed on May 1, 1958.

The petitioner argues several grounds for reversal of the order revoking his citizenship. He contends: (1) that the finding that he willfully misrepresented his occupation is not supported by clear, unequivocal, and convincing evidence, the standard of proof required of the Government in these cases; (2) that some of his admissions as to his true occupation at the time of his naturalization were tainted by wiretapping, and thus were not evidence which the District Court might rely upon in reaching its conclusion; (3) that, in the circumstances of this case the lapse of 27 years from the time of the petitioner's naturalization to the time of the filing in 1952 of the Government's first complaint should be deemed to bar the Government from instituting this proceeding; (4) that the second denaturalization proceeding was barred under Rule 41(b) of the Federal Rules of Civil Procedure by the failure of the District Court on remand of the first proceeding to specify that the dismissal was "without prejudice" to the filing of a new complaint.

We find no merit in any of these contentions.2 The judgment of the Court of Appeals will be affirmed.

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I

The Government carries a heavy burden of proof in a proceeding to divest a naturalized citizen of his citizenship. American citizenship is a precious right. Severe consequences may attend its loss, aggravated when the person has enjoyed his citizenship for many years. See Schneiderman v. United States, 320 U.S. 118, 122-123; Nowak v. United States, 356 U.S. 660, 663. In Chaunt v. United States, 364 U.S. 350, 352-353, we said:

Acquisition of American citizenship is a solemn affair. Full and truthful response to all relevant questions required by the naturalization procedure is, of course, to be exacted, and temporizing with the truth must be vigorously discouraged. Failure to give frank, honest, and unequivocal answers to the court when one seeks naturalization is a serious matter. Complete replies are essential so that the qualifications of the applicant or his lack of [81 S.Ct. 537] them may be ascertained. Suppressed or concealed facts, if known, might in and of themselves justify denial of citizenship. Or disclosure of the true facts might have led to the discovery of other facts which would justify denial of citizenship.

On the other hand, in view of the grave consequences to the citizen, naturalization decrees are not lightly to be set aside -- the evidence must indeed be "clear, unequivocal, and convincing" and not leave "the issue in doubt." Schneiderman v. United States, 320 U.S. 118, 125, 158; Baumgartner v. United States, 322 U.S. 665, 670. The issue in these cases is so important to the liberty of the citizen that

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the weight normally given concurrent findings of two lower courts does not preclude reconsideration here. . . .

In 1925, a known bootlegger would probably not have been admitted to citizenship. Decisions before and after the repeal of the Eighteenth Amendment held that the applicant who trafficked in the sale, manufacture, or transportation of intoxicating liquors during Prohibition, within the five years preceding his application, did not meet the statutory criterion that an applicant must have behaved as a person

of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.

Act of 1906, § 4, 34 Stat. 596, 598.

In United States v. De Francis, 60 App.D.C. 207, 208, 50 F.2d 497, 498, the Court of Appeals for the District of Columbia stated,

Any person who violates the provisions of the Prohibition Act violates the principles of the Constitution of the United States, and cannot be held to be attached to the principles of the Constitution of the United States. Nor can it be said that such a person possesses good moral character.

In Turlej v. United States, 31 F.2d 696, 699, it was said,

Few cases can be found where...

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