Cufari v. United States, 4870.

• Decision Date: 06 December 1954
• Docket Number: No. 4870.,4870.
• Citation: 217 F.2d 404
• Parties: Salvatore CUFARI, Defendant, Appellant, v. UNITED STATES of America, Plaintiff, Appellee.
• Court: U.S. Court of Appeals — First Circuit

217 F.2d 404 (1954)

Salvatore CUFARI, Defendant, Appellant, v. UNITED STATES of America, Plaintiff, Appellee.

No. 4870.

United States Court of Appeals First Circuit.

December 6, 1954.

Joseph J. Gottlieb, Boston, Mass., with whom Julius E. Rosengard, Boston, Mass., was on the brief, for appellant.

Charles F. Choate, Asst. U. S. Atty., Boston, Mass., with whom Anthony Julian, U. S. Atty., Boston, Mass., was on the brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

WOODBURY, Circuit Judge.

This is an appeal from a judgment setting aside and vacating an order admitting an alien to United States citizenship and cancelling his certificate of naturalization. 120 F.Supp. 941. It presents the same problem considered by this court in Brenci v. United States, 1 Cir., 1949, 175 F.2d 90, for the basic question again is whether the Government's evidence is persuasive enough to establish that the appellant in order to obtain naturalization concealed the fact that he had been arrested from the naturalization officers and the court which naturalized him.

The appellant, Salvatore Cufari, was born in Italy in 1901 and entered the United States through the port of New York in 1914. He went immediately to Springfield in Hampden County, Massachusetts, where he has lived continuously ever since and where he completed an eighth grade education.

Between January 23, 1923 and March 1, 1927, Cufari was arrested nine times, and on three other occasions during that period he was formally charged with criminal offenses although apparently not actually placed under arrest. The crimes with which he was charged ranged from petty misdemeanors such as disturbing the peace, to more serious offenses such as buying, receiving, and concealing stolen property, of which he was found not guilty, and defacing the serial number of a motor vehicle and transporting intoxicating liquor without a license, of both of which he was found guilty and fined $150 and $300 respectively.

Within three months after the last offense with which he was charged, that is to say on May 27, 1927, Cufari filed a petition for naturalization in the Superior Court of the Commonwealth of Massachusetts for Hampden County. Then, in conformity with established procedure under the statute applicable at the time, Act of June 29, 1906, 34 Stat. 596, as amended, Cufari as the next step in the naturalization process presented himself and his two witnesses for preliminary examination by a Naturalization Examiner assigned for that purpose. At that examination entries were made by Examiner John F. Davis, deceased, on a Department of Labor Form 2328 called a "docket slip," which had already been partly filled out. On the face of this document in the left hand column under appropriate headings appears in the handwriting of another Examiner the petitioner's name, residence, business, and nationality, and under that the names, businesses, and residences of his two witnesses. Under the name of each witness is interlined, apparently in Davis' handwriting, the notation "no arrests." In the right hand column of the docket slip under the heading "Result of Examination," notations in Examiner Davis' handwriting, except for Cufari's signature, appear in the following pattern:

"Reads Arr. N. Y. 4-16-14- O.K. Mass. Do.- S. check mark Spfld since 1914 Nicholas Curto, grocer 1156 Columbus Ave past 7 mos Father, Filippo lives here not citizen never absent no arrests School to 8th grade. Salvatori Cufari 7/25/1927 JFD"

In September 1927 Cufari appeared with his witnesses at a naturalization session of the Superior Court for Hampden County at which the Government was represented by Naturalization Examiner Patrick J. Mahoney, now deceased. As a result of a hearing regularly conducted in open court an order was entered admitting Cufari to United States Citizenship and he was issued a Certificate of Naturalization.

Twenty-six years later, in August 1953, the United States Attorney for the District of Massachusetts by his assistant filed a complaint in the court below under § 340(a) of the Immigration and Nationality Act, 66 Stat. 260, 8 U.S.C. § 1451(a), asking for the revocation of the Superior Court order admitting Cufari to citizenship and the cancellation of his Certificate of Naturalization on the ground that the order and certificate had been procured by concealment of material facts and wilful misrepresentation. Cufari answered with a general denial and a plea of res judicata¹ and the case came on for trial in the court below.

At the outset of the trial Cufari admitted his criminal record as outlined above. Whereupon the attorney for the United States undertook to prove that Cufari had deliberately concealed that record from the Naturalization Examiners and the court which had admitted him to citizenship.

Since both of the Naturalization Examiners concerned with Cufari's case, and also the Superior Court Justice who admitted him to citizenship, had died, the Government of necessity was not able to produce direct oral testimony that Cufari had ever been asked if he had been arrested and had answered in the negative. In this situation the Government first offered to prove that it was the custom and practice, although not required at the time (1927) by either statute or regulation, see United States v. Kessler, 3 Cir., 1954, 213 F.2d 53, 55, footnote 2, for Examiner Davis in making preliminary examinations and for Examiner Mahoney in representing the United States in court, to ask applicants if they had ever been arrested, and for neither of them to recommend admission to citizenship if the applicant's answer was in the affirmative, at least when a serious offense was involved. The District Court rejected this offer of proof on two grounds. It said it was of the opinion that the evidence offered was legally insufficient to establish the Government's case by clear, unequivocal, and convincing evidence which does not leave the issue in doubt, and furthermore, that it would not find such evidence persuasive even though it were legally admissible.² Thereupon the Government without objection introduced Cufari's docket slip in evidence as an exhibit. And, as foundation for its introduction and in explanation of the notations appearing on it, the court permitted the Government over Cufari's objection to introduce testimony by the District Director of Immigration and Naturalization to the effect that he knew Examiners Davis and Mahoney, and that in conducting preliminary examinations in 1927 it was the practice of Examiners in general and of Examiner Davis in particular to ask applicants for citizenship if they had ever been arrested and to note the applicant's answer on his docket slip. The District Director was also allowed to testify that although he had never observed Examiner Mahoney in court, it was the general practice at the time for Examiners at final hearings to ask each applicant, among other matters, if he had ever been arrested, and if his answer varied from the notation appearing on his docket slip, to ask the court for a continuance for further investigation.

Cufari, testifying on his own behalf, said that he had no recollection of being asked about arrests either at his preliminary examination or at the hearing on his petition in court.

On the foregoing evidence the lower court concluded that the Government had proved its case by clear, unequivocal, and convincing evidence which did not leave the issue in doubt. The court found that Cufari on July 25, 1927, in order to procure naturalization, had told a duly qualified officer of the Naturalization Service that he had not been arrested during the preceding five year period, and then the court went on to say:

"* * * This is manifested by a so-called Docket Slip which he signed on July 25th, 1927 Form 2328 of the Naturalization Service. At the time of his signature there was on that form, as he well knew, a statement that he had been subject to `no arrest\'. He intended to adopt that statement as his own for the purpose of deceiving first the representative of the Naturalization Service, and

...