United States v. Eichenlaub, 157

• Decision Date: 03 February 1950
• Docket Number: Docket 21564.,No. 157,157
• Citation: 180 F.2d 314
• Parties: UNITED STATES v. EICHENLAUB.
• Court: U.S. Court of Appeals — Second Circuit

180 F.2d 314 (1950)

UNITED STATES v. EICHENLAUB.

No. 157, Docket 21564.

United States Court of Appeals Second Circuit.

Argued January 9, 1950.

Decided February 3, 1950.

Writ of Certiorari Denied June 5, 1950.

Irving H. Saypol, U. S. Atty., New York City, for plaintiff-appellee; Harold J. Raby, Asst. U. S. Atty., New York City, of counsel.

George G. Shiya, New York City, for defendant-appellant.

Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.

Writ of Certiorari Denied June 5, 1950. See 70 S.Ct. 1028.

CHASE, Circuit Judge.

The appeal is from an order of the District Court for the Southern District of New York denying the appellant's motion, made under civil Rule 60(b), Federal Rules of Civil Procedure, 28 U.S.C.A., to vacate and set aside a judgment of the same court in a suit to revoke appellant's naturalization and cancel his certificate of naturalization pursuant to the provisions of Section 338 of the Nationality Act of 1940, 8 U.S. C.A. § 738.

The complaint in the above mentioned action was brought in August, 1943 and alleged that the appellant had been admitted to citizenship in November, 1936 after having taken the required oath of allegiance to the United States in which he renounced all allegiance to any foreign prince, potentate, state or sovereignty and, particularly, to the German Reich. It was also alleged that he procured his admission to citizenship fraudulently and illegally in that, among other things, at the time he filed his petition for naturalization and at the time he was admitted to citizenship he was not attached to the principles of the Constitution of the United States; that he did not intend to renounce all allegiance to the German Reich when he took the above mentioned oath; that he took the oath with a mental reservation which nullified it; and that he then did not intend to support and defend the Constitution and laws of the United States against all enemies.

The appellant, by his attorney, first filed an answer denying the above allegations, but before trial, and on January 24, 1944, filed a written consent to a judgment revoking his naturalization and cancelling his certificate of citizenship. In this consent, which was countersigned by his attorney to show that the attorney agreed and consented to it, the title and nature of the action were accurately stated and the appellant said "I have no defense to the aforesaid action." Accordingly, a judgment revoking appellant's naturalization and cancelling his certificate was then entered.¹

The motion to vacate this judgment was made in January, 1946. By way of showing the appellant's right to relief, his affidavit in support of the motion set forth, with supporting citations, that the fraud or illegality which will form the basis for the cancellation of a certificate of citizenship must be proved by the clearest and most satisfactory evidence and that whether this requirement has been met is open to review on appeal. It was then asserted (1) that "no proof was ever submitted that deponent had committed fraud in procuring his certificate of naturalization" and (2) that he "has a full and complete defense to the cause of action alleged in the complaint."

No claim is made that the appellant's attorney was incompetent or in any respect derelict in his duty to his client or that he did not fully understand the nature and effect of the consent which the appellant signed. So far as this record shows, no claim as to any lack of understanding by appellant himself was made below, though his present attorney has suggested in the brief filed on this appeal, without any supporting proof in the record, that appellant's education is "meager" and his understanding of the English language "limited." Nor was, or is, there any claim that appellant's consent was induced by duress or fraud, though it is said, again without supporting proof, that he was told by an Assistant United States Attorney that if he entered his consent, his privileges as a citizen would merely be suspended for the duration of the war.

Whatever merit there is in this appeal is to be found in the contention that, as a matter of law, a consent to judgment in an action to revoke naturalization and cancel a certificate of naturalization is insufficient as a substitute for proof to support the judgment. The case of Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, upon which appellant seems mainly to rely for this proposition, does not support it. That case dealt with a default judgment and, as the original judgment of the Supreme Court was subsequently modified, 336 U.S. 942, 69 S.Ct. 384, the cause was remanded to the district court for a determination as to whether there had been any denial of legal right in the way the default judgment had been entered. By necessary implication it would seem that there has been no authoritative holding that a default judgment is per se invalid in a denaturalization proceeding. The Klapprott case thus by no means requires us to reach the conclusion that a judgment entered upon a defendant's formal consent, given under the advice of counsel, is invalid per se. Indeed, we have already decided, without discussion, that it is not. United States v. Beland, 2 Cir., 164 F.2d 95.

It is true that clear and convincing evidence is necessary to support a contested complaint which seeks to cancel a certificate of naturalization. Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525; Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796; United States v. Sotzek, 2 Cir., 144 F.2d 576. But it would seem clear that, regardless of the standard of proof required, equivalent to proof is a consent to the entry of judgment given by a defendant with the knowledge and consent of an attorney representing him in what, for the purposes of this appeal, must be taken to have been a competent and loyal manner. Even assuming that proceedings for denaturalization under Section 338 of the Nationality Act are wholly to be governed by the same principles as criminal cases,² the same result must follow, for a plea of guilty or a plea of nolo contendere to a criminal charge makes unnecessary the introduction of evidence by the prosecution, and a consent judgment in denaturalization proceedings must be considered the equivalent of such pleas, or one of them.

Appellant contends, however, that the government was limited in its proof to the matters charged in the complaint and that since the allegations in the complaint "in the main" related to conduct subsequent to the filing of appellant's petition for naturalization and admission to citizenship, the complaint was insufficient to establish illegal and fraudulent procurement of naturalization under Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L. Ed. 1525. This contention is primarily based on the fact that the complaint alleged that after appellant's naturalization he acted as a German agent in the United States and collaborated with German agents for the purpose of advancing German interests in the United States and that "by reason of the foregoing" naturalization was "fraudulently and illegally procured by him in that" when he filed his petition for naturalization and when he was admitted to citizenship he was not attached to the principles of the United States Constitution and did not intend to renounce fidelity to Germany or to support and defend the Constitution and laws of the United States.

Regardless of any amendment which might have been made, had the point been raised, we think the complaint supports the judgment. While the majority of the Supreme Court in the Baumgartner case said that denaturalization on the ground of fraud "calls for weighty proof, especially when the proof of a false or fraudulent oath rests predominantly not upon contemporaneous evidence but is established by...