United States v. Galato
Decision Date | 25 February 1959 |
Docket Number | Civ. A. No. 5141. |
Citation | 171 F. Supp. 169 |
Parties | UNITED STATES of America v. Joseph (Guiseppe) GALATO. |
Court | U.S. District Court — Middle District of Pennsylvania |
Daniel H. Jenkins, U. S. Atty., William D. Morgan, Asst. U. S. Atty., Scranton, Pa., for the United States.
Albert H. Aston, Nathan Hyman, Wilkes-Barre, Pa., for defendant.
The United States Attorney, based upon an affidavit1, 2 showing good cause therefor, filed a complaint and accompanying affidavit in this district, wherein Joseph (Guiseppe) Galato, a naturalized citizen, resides, for the purpose of revoking and setting aside the order admitting said person to citizenship and cancelling the certificate of naturalization issued to him on the ground that such order and certificate of naturalization were procured by concealment of a material fact and by wilful misrepresentation.3 Jurisdiction arises from § 340(a) of the Immigration and Nationality Act of 1952 as amended, 8 U.S.C.A.Supp. § 1451(a) (1953 Ed.) and see § 340(i) Id., 8 U.S.C.A. § 1451(i).
February 19, 1934, defendant, a native of Italy, using the name Guiseppe Galato, filed an "Application For A Certificate Of Arrival and Preliminary Form For Petition For Citizenship", stating his desire to file a petition for citizenship in the Common Pleas Court at Wilkes-Barre, Pennsylvania, in accordance with the naturalization law, and submitted a detailed statement of facts relative to his arrival in 1912, nativity 1894, parentage, transportation, place of residence, absence from the United States, employment, etc.
In reply to question No. 31, "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 answered "no". At the end thereof defendant stated "I certify that all the statements made by me in this application and form are true to the best of my knowledge and belief", and subscribed his name thereto.
February 20, 1934, at a preliminary examination under oath by a duly authorized naturalization examiner for the purpose of ascertaining his qualifications for naturalization, defendant, upon being questioned as to the truth and accuracy of all averments made by him in his Application and Preliminary Form filed the previous date, stated he had never been arrested.
That same date defendant filed a Petition for Citizenship and immediately thereafter stated under oath to a duly authorized and designated naturalization examiner, that all statements made by him during the course of his naturalization proceeding were true and correct.
Defendant, as an alien, was drafted into the United States Army May 17, 1918; honorably discharged December 23, 1918. He served overseas in England from August 9, 1918 to December 10, 1918. He was married to a native born citizen June 31, 1931.
By virtue of the provisions of § 1(a) of the Act of May 25, 1932, 47 Stat. 165, as amended and continued in force and effect by the Act of June 24, 1935, 49 Stat. 395, earlier 8 U.S.C.*, defendant was required to prove that for a period of at least two years4 immediately preceding the date of his petition and continuing up to and including admission to citizenship, he had behaved as a person of good moral character.
Defendant now admits having been arrested in Pennsylvania:
Defendant did not either before or at the final hearing give any information as to prior arrests or that of March 19, 1934.
May 23, 1934, at a final hearing, before the United States District Court for this District, the naturalization examiner, relying upon the truth and accuracy of defendant's oral and written statements, stated defendant was qualified for naturalization and recommended that his petition be granted. Relying upon the information furnished and the examiner's recommendation, the court granted the petition. Certificate No. 3628739 was thereupon issued in the name of Joseph Galato.
While no transcript of testimony was ordered by either party, James P. Dillon, a naturalization examiner for twenty-five years, testified that he processed defendant's papers; produced and identified the several documents.5 Using the records per se—although he did not have a distinct independent present recollection —with a recollection refreshed6 by the records, the custom and practice of the agent and departmental regulations,7 he identified red check marks on the papers as having been placed there by him; stated that defendant supplied the information and made the answers contained in the several papers and signed his name thereto; that defendant at the preliminary examination was asked and answered under oath that he had not been arrested and that he signed the several papers; that on February 20, 1934, both before and after he filed his Petition for Citizenship, he was asked under oath and replied that the answers given in the several papers were true and correct.
The defense called only two witnesses, defendant and his wife. Defendant testified that he had no recollection of being questioned as to prior arrests. He does not deny that the questions were asked in writing and orally as indicated, but attempts to condone and explain his answers by stating (1) that he had only a third grade education, was hard of hearing in one ear, and may not have heard, or misunderstood, the questions; (2) that at the time he thought he was entitled to citizenship because of his military service and there was therefore no need to withhold information or to give untruthful answers as to prior arrests. There was no credible evidence of any hearing deficiency. Even if there were that would not explain the false answer in defendant's Application. All other questions were apparently correctly answered. There was no basis in law for defendant's claim of right to citizenship. See Petition of Ferro, D.C.M.D. Pa.1956, 141 F.Supp. 404, at page 408; Rein v. United States, 3 Cir., 1934, 69 F. 2d 206, 207. Defendant's assertion of belief in such right was first made at the present hearing. Even assuming such a belief existed in 1934 (as to the proof of which see and cf. Baumgartner v. United States, 1944, 322 U.S. 665, at page 675, 64 S.Ct. 1240, at page 1245, 88 L.Ed. 1525) it would not excuse him from making truthful answers. "The government is entitled to know all the facts which it requires." United States v. Montalbano, 3 Cir., 1956, 236 F.2d 757, at page 759. Defendant had a duty to make truthful answers to the questions asked. He did not do so.
In United States v. Kessler, 3 Cir., 1954, 213 F.2d 53, there was no legal arrest, no wilful misrepresentation or concealment of a material fact. In Cufari v. United States, 1 Cir., 1954, 217 F.2d 404, the entry "no arrest" may have referred to a witness instead of the petitioner. In United States v. Anastasio, 3 Cir., 1955, 226 F.2d 912, at page 916, the court found the government had knowledge of the prior arrests and was not deceived.
Defendant argues that when the papers were filed there had been no arrests during the prior two years; that the arrests prior thereto were not material or relevant in determining the question of good moral character and that the arrest while the naturalization proceedings were pending, even if revealed, would not affect the final result.
We shall not stop to consider the question as to the period embraced in determining moral character. See Petition of Ferro, supra, 141 F.Supp. 404; Corrado v. United States, 6 Cir., 1955, 227 F.2d 780, at page 784; Stevens v. United States, 7 Cir., 1951, 190 F.2d 880, 881; United States v. Etheridge, D.C.D.Ore. 1930, 41 F.2d 762. Nor need we rest our decision on the failure to reveal the arrest during the pendency of the naturalization proceedings. See United States v. Palmeri, D.C.E.D.N.Y.1943, 52 F. Supp. 226, 227; United States v. Accardo, D.C.D.N.J.1953, 113 F.Supp. 783, 785, affirmed 3 Cir., 1953, 208 F.2d 632, certiorari denied 1954, 347 U.S. 952, 74 S. Ct. 677, 98 L.Ed. 1098, and cf. United States v. Minerich, 7 Cir., 1957, 250 F.2d 721, at page 729, et seq.
Defendant's theory seems to be that one may deliberately engage in a falsehood concerning required facts during naturalization proceedings without fear of consequences so long as the truth, had it been revealed, would not have resulted in refusal of citizenship, but see United States v. Montalbano, 3 Cir., 1956, 236 F. 2d 757, at page 759, certiorari denied sub nom. Genovese v. United States, 1956, 352 U.S. 952, 77 S.Ct. 327, 1 L.Ed.2d 244. And see Corrado v. United States, 6 Cir., 1955, 227 F.2d 780, at page 784, ...
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United States v. Riela
...right of the petitioner to be naturalized, and is relied upon by the Government. United States v. Genovese, supra; United States v. Galato, D.C.Pa.1959, 171 F.Supp. 169; United States v. Failla, D.C.N.J.1958, 164 F.Supp. 307; United States v. Accardo, D.C.N.J.1953, 113 F. Supp. 783, affd. 3......
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