Costello v. United States, 59

• Decision Date: 20 February 1961
• Docket Number: No. 59,59
• Citation: 81 S.Ct. 534,365 U.S. 265,5 L.Ed.2d 551
• Parties: Frank COSTELLO, Petitioner, v. UNITED STATES of America
• Court: U.S. Supreme Court

365 U.S. 265

81 S.Ct. 534

5 L.Ed.2d 551

Frank COSTELLO, Petitioner,

v UNITED STATES of America.

No. 59.

Argued Dec. 12, 1960.

Decided Feb. 20, 1961.

Mr. Edward Bennett Williams, Washington, D.C., for petitioner.

Messrs. Ralph S. Spritzer and Wayne G. Barnett, Washington, D.C., for respondent.

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 natu- ralized 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, 80 S.Ct. 1058, 4 L.Ed.2d 1009.

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, D.C., 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 in any event. 247 F.2d 384. We granted certiorari and reversed, 356 U.S. 256, 78 S.Ct. 714, 2 L.Ed.2d 741, 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, 76 S.Ct. 671, 100 L.Ed. 964, 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, 28 U.S.C.A., 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.

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, 63 S.Ct. 1333, 1335, 87 L.Ed. 1796; Nowak v. United States, 356 U.S. 660, 663, 78 S.Ct. 955, 957, 2 L.Ed.2d 1048. In Chaunt v. United States, 364 U.S. 350, 352—353, 81 S.Ct. 147, 149, 5 L.Ed.2d 120, 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 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, 63 S.Ct. 1333, 1336, 1352, 87 L.Ed. 1796; Baumgartner v. United States, 322 U.S. 665, 670, 64 S.Ct. 1240, 1243, 88 L.Ed. 1525. The issue in these cases is so important to the liberty of the citizen that 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, 10 Cir., 31 F.2d 696, 699, it was said, 'Few cases can be found where applicants for citizenship have been admitted, if guilty of violating liquor laws within the five years preceding the hearing, and such cases have been severely criticized by the courts. This was true even before the adoption of the Eighteenth Amendment as a part of our national Constitution.' See also In re Trum, D.C., 199 F. 361.

In United States v. Villaneuva, D.C., 17 F.Supp. 485, 487, the court said, 'Courts have quite universally held that violations of prohibition liquor laws, whether national or state, should be taken into consideration in determining questions respecting the good moral character of appli- cants for citizenship and their attachment to the principles of the Constitution of the United States.'

In United States v. Mirsky, 17 F.2d 275, a denaturalization case, Judge Thacher of the District Court for the Southern District of New York, who had admitted Costello to citizenship less than a year earlier, said: 'One who deliberately violates the Eighteenth Amendment of the Constitution cannot be said to be attached to the principle declared by that amendment.' At page 275. 'Neither the fact that in this and in other communities there are many citizens who are not attached in thought or deed to the principle embodied in the Constitution by the Eighteenth Amendment, nor the fact that opposition to that principle with a view to removing it from the Constitution is quite generally thought to be the part of good citizenship, can relieve this court of its duty to apply the law as it is now written.' At page 276.

See also In re Nagy, D.C., 3 F.2d 77; In re Raio, D.C., 3 F.2d 78; In re Phillips, D.C., 3 F.2d 79; In re Bonner, D.C., 279 F. 789; Ex parte Elson, D.C., 299 F. 352.

Some of these cases turned on a finding of illegal procurement of the certificate because of demonstrated lack of attachment to the principles of the Constitution rather than upon 'fraud' under 8 U.S.C. (1946 ed.) § 738(a).³ However, the cases demonstrate the materiality of the concealment by the petitioner of his bootlegging if that in fact was his true occupation. Such concealment would support the conclusion that he was an applicant who had '(s) uppressed or concealed facts * * * (which) * * * if known, might in and of themselves justify denial of citizenship.' Chaunt v. United States, supra, 364 U.S. at pages 352—353, 81 S.Ct. at page 149.

We have examined the record to determine if the evidence leaves 'the issue in doubt,' Schneiderman v. United States, 320 U.S. 118, 158, 63 S.Ct. 1333, 1352, 87 L.Ed. 1796, whether the petitioner procured his naturalization by willfully misrepresenting that his occupation was real estate. It does not. However occupation is defined, whether in terms of primary source of income, expenditure of time and effort, or how the petitioner himself viewed his occupation, we reach the conclusion that real estate was not his occupation and that he was in fact a largescale bootlegger.

The Government built its case on a solid foundation of admissions made by the petitioner in several federal and New York State inquiries beginning in 1938. In that year he admitted to a Special Agent of the Bureau of Internal Revenue that he had engaged in the illicit liquor business from 1923 or 1924 until a year or two before the repeal of the Eighteenth Amendment in 1933. In 193...