Augello v. Dulles, 175

• Decision Date: 09 March 1955
• Docket Number: Docket 23314.,No. 175,175
• Citation: 220 F.2d 344
• Parties: Vincenzo AUGELLO, Plaintiff-Appellant, v. John Foster DULLES, as Secretary of State of the United States, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

220 F.2d 344 (1955)

Vincenzo AUGELLO, Plaintiff-Appellant, v. John Foster DULLES, as Secretary of State of the United States, Defendant-Appellee.

No. 175, Docket 23314.

United States Court of Appeals, Second Circuit.

Argued February 10, 1955.

Decided March 9, 1955.

Ferro & Cuccia, New York City (Josephine Ferro, Joseph F. Cuccia, New York City, of counsel), for plaintiff-appellant.

Leonard P. Moore, U. S. Atty. for E. D. New York, Brooklyn, N. Y. (Cornelius W. Wickersham, Jr., Chief Asst. U S. Atty., Brooklyn, N. Y., of counsel), for defendant-appellee.

Before CLARK, Chief Judge, HINCKS, Circuit Judge, and SMITH, District Judge.

HINCKS, Circuit Judge.

This was an action for a declaratory judgment instituted by appellant under Section 503 of the Nationality Act of 1940, 54 Stat. 1171, former 8 U.S.C. § 903, now 8 U.S.C.A. § 1503. The plaintiff-appellant sought a declaration that he is a citizen of the United States. The court below found (a) that the plaintiff had taken an oath of allegiance to the King of Italy and (b) that he did so voluntarily. On these findings he concluded that the plaintiff had lost his status as a citizen of the United States. From the resulting judgment for the defendant dismissing the complaint, the plaintiff has taken this appeal.

Plaintiff was born in Brooklyn, New York, on May 22, 1916 of alien parents who were citizens of Italy. When five years old his parents took him with them to Italy where he continued to live until 1947. It is undisputed that under the laws of Italy and of the United States he was a citizen of the United States as well as of Italy unless and until he committed an act of expatriation. In 1936, when he was twenty years old, pursuant to Italian law the plaintiff was conscripted into the Italian Army. He served for eighteen months in an army band and then was discharged.

In this action the burden was on the plaintiff to prove that he is a United States citizen. Monaco v. Dulles, 2 Cir., 210 F.2d 760. By proof of birth in the United States, he made out a prima facie case of citizenship which was subject to rebuttal by proof of expatriation. But on the issue of expatriation the burden of proof was on the defendant. Monaco v. Dulles, 2 Cir., 210 F.2d 760, Pandolfo v. Acheson, 2 Cir., 202 F.2d 38. In this case, the claimed act of expatriation, see Act of March 2, 1907, 34 Stat. 1228, upon which the defendant relied, was the taking of an oath of allegiance to the Italian King.

In our decision in Monaco v. Dulles, supra, 210 F.2d 762 handed down on February 15, 1954, we held that in a case of "duo-citizenship" expatriation of the American citizenship must be proved by evidence which is "`clear, unequivocal and convincing.'" On March 6, 1953 the judge below entered his finding that the plaintiff, who had been conscripted on November 21, 1936, took the oath of allegiance to the King of Italy on June 5, 1937. The finding was made on conflicting evidence.¹

Against this background it is perhaps worth noting that in the Monaco case the defendant offered evidence of Italian law which required the oath to be administered "`as a rule, "en masse," during the first period of military training as soon as the recruits have acquired a suitable degree of soldierly appearance in order to be in harmony with the great solemnity of the event.'" If this provision of the Italian law was in force in 1936 and had been applied to the plaintiff it would seem that if he took the oath at all he would have done so prior to May 22, 1937 when he became of age. And, of course, an oath taken by him when under age would have been ineffective as an act of expatriation. Perri v. Dulles, 3 Cir., 206 F.2d 586.

In this case there was no evidence at all of the applicable Italian law. Even so, the very fact that the plaintiff was conscripted as early as November, 1936 makes it more unlikely that he would have taken the oath as late as June 1937, — at least unless it be assumed without evidence that under Italian military practice the oath is administered to conscripted soldiers at successive intervals throughout a single period of service. In view of the meagre record we have considerable doubt that the Judge would have found that the plaintiff had taken the oath when of age if at the time of his finding our Monaco opinion had been available to him with its requirement that expatriation must be proved by clear, convincing and unequivocal evidence. However, it is unnecessary to rule definitely on the validity of that finding because we think a reversal is required by error entering into the finding that the oath was taken without duress.

It is true that proof of the taking of an oath, standing alone, imports that it was taken voluntarily. Pandolfo v. Acheson, supra. But that presumption may be rebutted by proof that the oath was taken as an incident of compulsory military service. Perri v. Dulles, supra; Lehmann v. Acheson, 3 Cir., 206 F.2d 592. And in this case, since the findings of the court below show that the plaintiff had been drafted, the presumption of voluntariness was substantially rebutted.

This conclusion, we think, finds support in the case of Mandoli v. Acheson, 344 U.S. 133, 73 S.Ct. 135, 136, 97 L.Ed. 146. That case, like this, was one in which the plaintiff below, also by birth a citizen of both Italy and of the United States, after conscription into the Italian army, sought a...