United States v. Chandler

• Decision Date: 27 June 1956
• Docket Number: Civ. No. 7447.
• Citation: 142 F. Supp. 557
• 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

142 F. Supp. 557

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 27, 1956.

Walter E. Black, Jr., U. S. Atty., and James H. Langrall, Asst. U. S. Atty., Baltimore, Md., for plaintiff.

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

THOMSEN, Chief Judge.

This is a suit by the government for revocation of defendant's citizenship, brought under section 340(a) of the Immigration and Nationality Act (1952), 8 U.S.C.A. § 1451(a), and section 338(a) of the Nationality Act of 1940, 8 U.S. C.A. § 738(a). The complaint, as amended, alleges that the latter section was continued in force and effect by section 405 (a) of the Immigration and Nationality Act, 8 U.S.C.A. § 1101, Footnote. Defendant moved to dismiss the amended complaint on the grounds (1) that this proceeding was not instituted upon an affidavit in conformity with section 340 (a) of the Immigration and Nationality Act; (2) that the complaint is based on a repealed statute; (3) that the complaint and relief sought thereby are barred on the grounds of res adjudicata and estoppel by prior judgment; and (4) that the complaint indistinguishably pleads separate and independent statutory grounds for revocation of citizenship in such a way as to impede the defendant in answering and defending. Defendant also moved to strike certain specified allegations of the amended complaint.

In an opinion filed on May 20, 1955, D.C., 132 F.Supp. 650, Judge Coleman overruled the motion to dismiss the complaint. He held, however, that the government cannot now proceed under section 338(a) of the 1940 Act, on the ground that the order and certificate of naturalization were illegally procured, but must proceed under section 340(a) of the 1952 Act, on the ground that such order and certificate of naturalization were procured by concealment of a material fact or by willful misrepresentation; therefore, he held that paragraphs 10, 11, 12 and 13 and those parts of paragraphs 1 and 14 which relate to section 338(a) of the 1940 Act should be struck from the complaint. Judge Coleman did not enter any order in the case before his retirement on June 1, 1955, and defendant renewed his motion to dismiss the amended complaint. The government and the defendant agreed that the ruling on this motion should be delayed pending the decision of the Supreme Court in United States v. Zucca, 351 U.S. 91, 76 S.Ct. 671, 676, which was handed down April 30, 1956.

The Zucca case holds that an "affidavit showing good cause is a procedural prerequisite to the maintenance of proceedings" under section 340(a) of the 1952 Act, and that "the District Attorney must, as a prerequisite to the initiation of such proceedings, file an affidavit showing good cause."

Defendant contends that such an affidavit must be made by a person having personal knowledge of the facts set out in the affidavit, and not, as in this case and in many others, by the Assistant General Counsel of the Immigration and Naturalization Service, setting out facts appearing in the official records of said Service.

The majority opinion in the Zucca case does not require that the affidavit be made by a person having personal knowledge of the facts contained in the affidavit. Such a requirement would often be quite impracticable and would unreasonably obstruct the government in the enforcement of the law. The affidavit in the case at bar illustrates that proposition.

The first two subparagraphs of paragraph 1 of the affidavit recite the naturalization proceedings in the United States District Court at Savannah, Georgia, in 1943, and the various statements made under oath by defendant at that time. One subparagraph charges that those statements were false and untrue, and others set out in detail the facts which support that charge, namely: that defendant was arrested and charged with specified violations of law on specified dates at four specified places; that he sailed from the port of New York on a specified date, without obtaining a reentry permit, and thereafter effected reentry without presenting an immigration visa or submitting to inspection, as required by law, making him subject to deportation up to the time of his naturalization; that defendant "has been an active member and officer of the Communist Party of the United States and organizations affiliated therewith continuously since 1929"; that said party is an organization which at all times since 1929, advised, advocated or taught the overthrow by force or violence of the government of the United States, and other specified action, and engaged in other specified activities; that at all times above mentioned, as defendant well knew, said party was a section of an international organization, whose decisions were binding on said party and the individual members thereof, whether or not such decisions were contrary to the laws of the United States; that defendant "intentionally and deliberately made false statements in the proceedings leading to his naturalization as set forth in the preceding paragraphs and concealed the facts relating to his membership in the Communist Party in order to prevent the making of a full and proper investigation of his qualifications for citizenship; to conceal his lack of attachment to the principles of the Constitution; to induce the naturalization examiner to make an unconditional recommendation to the court that his petition be granted; to preclude inquiry by the court concerning his qualifications for citizenship; and to procure naturalization in violation of law"; and that at the time of his naturalization defendant "was not attached to the principles of the Constitution or well disposed to the good order and happiness of the United States; he did not intend to renounce allegiance and fidelity to the Union of Soviet Socialist Republics; he did not intend to...