United States v. Corrado, 12337.
| Decision Date | 30 April 1953 |
| Docket Number | No. 12337.,12337. |
| Citation | 121 F. Supp. 75 |
| Parties | UNITED STATES v. CORRADO. |
| Court | U.S. District Court — Western District of Michigan |
D. K. Hamborsky, Asst. Dist. Atty., Detroit, Mich., for plaintiff.
Harry Kobel, Detroit, Mich., and Capizzi, Valenti & Kwetcher, Detroit, Mich., for defendant.
This is an action to cancel citizenship of defendant on the grounds of both fraud and illegality, brought under Section 338(a) of the Nationality Act of 1940, 54 Stat. 1158.* Proof of either charge will suffice.
Defendant acquired his citizenship under the Act of June 29, 1906, 34 Stat. 596, as amended by Act of March 2, 1929, Chapter 536, § 6(b), 45 Stat. 1513, which provides in part, subsection "Fourth" (3):
This requirement remains unchanged in the current Act, 8 U.S.C.A. § 1427(a).
The facts are these:
Defendant came to America in the year 1921, shortly after the first world war and soon took up his home in Detroit. In 1929, he moved to Brooklyn, New York, and on or about May 18, 1931, made application for citizenship. He also appeared before a preliminary examiner to be interrogated concerning the statements made by him on his application. One of the questions on that application was:
"Have you ever been arrested or charged with violation of any law of the United States or State or any city ordinance or traffic regulation?"
Defendant's answer to this question was "No." While the handwriting in the main body of the application was clearly not defendant's, the application was signed by him. To show that this answer to the quoted question was false, the government has proven that beginning with June 25, 1923, up to and including the day he was naturalized on August 18, 1931, defendant had been arrested at least fifteen times and convicted of two misdemeanors — disturbing the peace on June 25, 1923, and frequenting a gambling place on August 3, 1927.
Shortly after defendant became an American citizen he returned to Detroit, where he has resided ever since.
On July 19, 1946, defendant, through an attorney, asked the Superintendent of Police in Detroit to remove his record except for the two misdemeanors, since "no convictions occurred subsequent to" the other arrests. This was as provided by Michigan Statute, C.L.1929, § 569, M.S.A. § 4.463, Comp.Laws 1948, § 28.243.
Following is the list of arrests and their dispositions, which occurred prior to and during 1931, as submitted by defendant's then attorney to the Detroit Police Department Superintendent at the time defendant's record was expunged:
6/25/23 Dis. peace $25.00 or 30 days Heston
3/24/24 Fel. aslt. Dismissed
1/16/25 Viol. Dyer Act TOT. U.S. Marshal
8/6/25 R.A. Dismissed
3/30/26 C.C. weapons Discharged
4/13/27 CCW Capias Discharged
8/2/27 Freq. Gamb. Pl. $10.00 or 10 days
2/19/29 Murder Discharged
3/15/29 U.S. Immigration Discharged
10/28/31 Murder Nolle Prossed
12/10/31 Fugitive TOT. Wyandotte, Mich. PD
Not included in the above list are the following arrests which were proved by the government at the trial:
3/13/24 Murder Dismissed on writ 3/15/24
7/26/24 Robbery Armed Dismissed by Super. 7/29/24
9/25/24 Robbery Armed Dismissed by Super. 9/26/24
11/7/24 Arrested on Investigation — Released on bail — bail
forfeited — no disposition
1/13/25 Robbery Armed Dismissed by Super. 1/16/25
4/26/25 Robbery Armed Dismissed by Super. 4/28/25
It will be noted that the first nine charges listed by defendant at the time he expunged his record include felonious assault, violation of the Dyer Act, robbery armed, carrying concealed weapons, murder and violation of the immigration laws. Defendant was also finger-printed. The arrests not so listed by defendant include murder and robbery armed and the arrest on "investigation" on November 7, 1924, was in Rochester, New York. At the trial defendant admitted being arrested in Rochester, New York and posting bond — "And I haven't heard from it since."
The robbery armed charge of August 6, 1925, was in Detroit, and was not dismissed until September. In this matter defendant put up bond and as he had done before hired a prominent attorney to represent him.
The arrest for murder in February, 1929, terminated the same day. The one on March 13, 1924, was dismissed on writ March 15, 1924.
During the course of the trial the government also sought to prove other arrests taking place subsequent to the date of naturalization under Luria v. U. S., 231 U.S. 9, 34 S.Ct. 10, 58 L.Ed. 101; U. S. ex rel. Harrington v. Schlotfeldt, 7 Cir., 136 F.2d 935; Baumgartner v. U. S., 8 Cir., 138 F.2d 29, reversed by the Supreme Court, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525 on other ground; and Turlej v. U. S., 8 Cir., 31 F.2d 696. However, this court, on objection by defendant, refused to permit any evidence concerning defendant's alleged improper actions after his naturalization, except to show that on March 9, 1931, while his application for citizenship was pending in Brooklyn and before he was naturalized, an indictment for murder had been returned against him in Detroit and also that he was charged as a fugitive from justice on October 10, 1931. The indictment was for the same murder for which defendant was arrested on February 19, 1929 before going to New York to live. This indictment was the basis for arrest for murder on October 28, 1931, after defendant was naturalized and had returned to Detroit. He was placed on $10,000 bond for this charge, but the case was nolle prossed January 20, 1932.
There is no question or doubt in this court's mind but that defendant had been arrested several times when he made his application for United States citizenship. As a matter of fact defendant admitted the two arrests followed by convictions and also some of the other arrests at trial. He did not deny the others, but was very vague and stated that he "did not remember" them. He was also identified in many of the charged arrests by several police officers as the man they had arrested. The proof as to each of these arrests is "`clear, unequivocal and convincing.'" Schneiderman v. U. S., 320 U.S. 118, 63 S.Ct. 1333, 1345, 87 L.Ed. 1796. Other findings of fact are commingled with our conclusions of law.
The first question relates to the alleged fraud. Did the defendant intentionally make any false statements? It is his position that he made out his application for citizenship at one of the store offices opposite the Federal Court in Brooklyn, which, of course, would not be unusual. He further stated that he told the person who made out his application all about his arrests, but that this person informed him that nevertheless his answer to the question should be "no." Defendant testified:
."
It is defendant's position that he failed to answer the question truthfully because the man who helped him fill out his application informed him that if he didn't serve time the arrest didn't count. This court does not believe that latter statement. On the contrary, we believe that he deliberately falsified his position with the intent of misleading the examiner, and that such false statements were material to the issue, because under the numerous authorities Knauer v. United States, 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500; Del Guercio v. Pupko, 9 Cir., 160 F.2d 799; U. S. v. De Francis, 60 App.D.C. 207, 50 F.2d 497; U. S. v. Saracino, 3 Cir., 43 F.2d 76; U. S. v. Charnowola, D.C., 109 F. Supp. 810 and also the rules and regulations in force at the time defendant was examined governing interrogation by the examiner, which provides in part:
an applicant for citizenship must present all of the facts and have no guilt or fraud in his heart. He must, to use a common expression, "come clean." See U. S. v. Zgrebec, D.C., 38 F.Supp. 127.
In Knauer v. United States, supra 328 U.S. 654, 66 S.Ct. 1306, fraud is defined as connoting "perjury, falsification, concealment, misrepresentation." Certainly this defendant concealed the fact that he had been arrested. He "falsified" and "misrepresented" and was also probably guilty of perjury. Gaglione v. U. S., 1 Cir., 35 F.2d 496. If he had revealed that he had been arrested it does not necessarily follow that he would have been denied citizenship, but this was information that the examining officers were charged by law with obtaining and to which they were entitled. The seriousness of the offense and the materiality of any arrest or conviction would be then up to the examining officers, and if they...
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