United States v. Chandler

• Citation: 152 F. Supp. 169
• Decision Date: 13 June 1957
• Docket Number: Civ. No. 7447.
• Parties: UNITED STATES of America v. Joseph William CHANDLER, also known as Joseph Shandalov, also known as Joseph Chandaloff, also known as Joseph Shandlor, also known as Rubin Halpert.
• Court: U.S. District Court — District of Maryland

152 F. Supp. 169

UNITED STATES of America v. Joseph William CHANDLER, also known as Joseph Shandalov, also known as Joseph Chandaloff, also known as Joseph Shandlor, also known as Rubin Halpert.

Civ. No. 7447.

United States District Court D. Maryland, Civil Division.

June 13, 1957.

Leon H. A. Pierson, U. S. Atty., and James H. Langrall, Asst. U. S. Atty., Baltimore, Md., Maurice A. Roberts, Atty., Crim.Div., Dept. of Justice, Washington, D. C., on the brief, for plaintiff.

Joseph Forer, Washington, D. C., and Harold Buchman, Baltimore, Md., for defendant.

THOMSEN, Chief Judge.

This is an action under sec. 340(a) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1451(a), to revoke defendant's naturalization on the ground that it was obtained by concealment of material facts and by material false representations made under oath in the proceedings which led to his naturalization. These concealments and misrepresentations dealt with his membership in the Communist Party, his prior arrests, his illegal departure from the United States to attend the Lenin School in Moscow, following his original legal entry in 1923, and his subsequent illegal entry into the United States.

In a reported opinion, D.C., 132 F. Supp. 650, Judge Coleman overruled a motion to dismiss the complaint. He held, however, that the government could not proceed under sec. 338(a) of the 1940 act, 8 U.S.C.A. (1940 Ed.) 738(a), on the ground that the order and certificate of naturalization were illegally procured, but had to proceed under sec. 340(a) of the 1952 act, 8 U.S.C.A. (1953 Ed.) § 1451 (a), on the ground that the order and certificate were procured by concealment of a material fact or by wilful misrepresentation. Pursuant to Judge Coleman's opinion, certain paragraphs were stricken from the complaint, and I denied a renewed motion to dismiss the amended complaint, D.C., 142 F. Supp. 557.

The Statutes

The defendant was naturalized on May 14, 1943, while a member of the armed forces during World War II, under the provisions of section 701, which was added to the Nationality Act of 1940 by the Act of March 27, 1942, 56 Stat. 182, 187, 8 U.S.C.A. § 1440a.

The Nationality Act of 1940, 8 U.S. C.A. (1942 Ed.) 501 et seq.¹, was a comprehensive code governing the acquisition and loss of United States citizenship. Sub-chapter III — Nationality through Naturalization set forth the substantive and procedural requirements which aliens must meet to qualify for naturalization. 8 U.S.C.A. 701(d), stated: "A person may be naturalized as a citizen of the United States in the manner and under the conditions prescribed in this Act, and not otherwise."

Among the requirements were five years continuous residence in the United States, and a showing of good moral character and attachment to the principles of the Constitution during that period, sec. 707, and lawful admission for permanent residence evidenced by a certificate of arrival, sec. 729. No person could be naturalized who, within a period of ten years preceding the filing of the petition for naturalization, had been a member of any organization that advocated the overthrow by force and violence of the government of the United States or distributed written or printed matter advocating such overthrow, or otherwise came within the ban of sec. 705.² Those requirements were mandatory; naturalization decrees obtained without strict adherence to the statutory conditions have frequently been set aside as illegal. United States v. Ginsberg, 243 U.S. 472, 37 S.Ct. 422, 61 L.Ed. 853; Maney v. United States, 278 U.S. 17, 49 S.Ct. 15, 73 L.Ed. 156 Sec. 701, added in 1942, provided³ that aliens serving honorably in the armed forces during World War II, "may be naturalized upon compliance with all the requirements of the naturalization laws", with stated exceptions from those requirements. Waived were the racial eligibility requirements, the age limitations, the restrictions on alien enemies, the declaration of intention, the five-year period of residence, educational requirements, and others. The requirement of lawful admission for permanent residence was modified, so that a lawful admission for a temporary period, as a seaman or student or tourist, would suffice. Among those not waived were the requirements of good moral character, attachment to Constitutional principles, and lawful admission and residence in the United States. The ban against aliens who at any time within the preceding ten years had belonged to an organization advocating the overthrow by force or violence of the government of the United States, or who otherwise came within sec. 705, was not eliminated.

Nor did sec. 701 waive the requirement of sec. 733, that the petition for naturalization be heard preliminarily by a designated naturalization examiner. The obvious purpose of such an examination is to afford the government an opportunity to investigate the fitness of the petitioner for naturalization, Corrado v. United States, 6 Cir., 227 F.2d 780, certiorari denied 351 U.S. 925, 76 S.Ct. 781, 100 L.Ed. 1455. Before granting naturalization, the United States is entitled to frank, honest and unequivocal information from the applicant for citizenship in answer to questions which may throw light upon his qualification or disqualification for that privilege. United States v. Genovese, D.C.N.J., 133 F.Supp. 820, affirmed United States v. Montalbano, 3 Cir., 236 F.2d 757, certiorari denied 352 U.S. 952, 77 S.Ct. 327, 1 L.Ed.2d 244.

Findings of Fact

In 1930 defendant filed a petition for citizenship, under the name of Joseph Shandler, in the Southern District of New York, but did not go through with it. In January, 1942, he was inducted into the armed forces of the United States. In March, 1942, he filed an application for a Certificate of Arrival and Preliminary Form for Petition for Naturalization, using the name Joseph Chandler, and stating that he had entered the country in December, 1922, under the name of Joseph Shandalov. In March, 1943, while stationed at Fort Screven, Georgia, he filed his Preliminary Form for Petition for Naturalization. On May 13, 1943, he appeared before Calhoun Fountain, a designated naturalization examiner, who conducted an oral examination. Following this oral examination, defendant filed a petition for naturalization in the United States District Court for the Southern District of Georgia, at Savannah, was admitted to citizenship on May 14, 1943, and took the prescribed oath.

The preliminary petition, which was before Fountain when he conducted his examination of defendant, stated: "8. My lawful admission to the United States, its territories, or its possesions, was at New York City, New York, under the name of Joseph Chandaloff on January 1, 1923, on the S. S. Adriatic. * * * 10. I am not, and have not been for the period of at least 10 years immediately preceding the date of this application, an anarchist; nor a believer in the unlawful damage, injury, or destruction of property, or sabotage; nor a disbeliever in or opposed to organized government; nor a member of or affiliated with any organization or body of persons teaching disbelief in or opposition to organized government. I am attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the United States. It is my intention in good faith to become a citizen of the United States, and to reside permanently therein." The same statements were made in the final petition for naturalization.

Fountain asked defendant a number of questions, the same questions he asked other petitioners under similar circumstances. He indicated the questions he had asked by notes on the reverse side of the preliminary application. Fountain's testimony in open court under severe cross-examination convinced me that he did not remember any individual case but that he did remember quite clearly the form of the questions which he asked the petitioners. These included: (1) "Have you ever been out of the United States at any time since your arrival in the United States as specified in this form?" (2) "Have you ever been arrested at any time, anywhere, or do you have any prison record or any criminal record?" (3) "Are you now or have you ever been a communist, a nazi, a fascist, or a radical of any type?" Fountain's notes show that defendant answered "no" to these questions. It is possible that Fountain asked defendant whether he was then or had ever been a member of the Communist Party rather than whether he was then or ever had been a communist, but I find it is probable that he asked him whether he had ever been a communist. If Fountain had been told that defendant had ever been out of the United States since his original arrival, he would have referred the matter to the proper office of the Immigration and Naturalization Service for further investigation. If either of the other questions had been answered "yes", Fountain would have asked for additional information, would have made further investigation if he deemed it necessary, and would have brought the matter to the attention of the judge, with appropriate recommendations. His recommendations would have depended upon the information he obtained.

Defendant entered the United States from Russia on January 1, 1923, having been born in Russia in 1906. On February 14, 1930, he was arrested in Philadelphia, Pennsylvania, charged with inciting to riot and disorderly conduct, but was discharged. Sometime in 1930, he came to the Pittsburgh area as district organizer of the Young Communist League. On September 1, 1930, he was arrested at McKeesport, Pennsylvania, and fined $50 for violation of a city ordinance (participating in an unauthorized meeting), disorderly conduct and resisting arrest. On June 1, 1931, at Youngstown, Ohio, he was arrested for inciting to riot; however, the case was dismissed for want of prosecution. In March, 1932, defendant and two...