United States v. Montalbano, 11785

• Decision Date: 21 August 1956
• Docket Number: 11790.,No. 11785,11785
• Citation: 236 F.2d 757
• Parties: UNITED STATES of America v. Carmelo MONTALBANO, Appellant. UNITED STATES of America v. Vito GENOVESE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

236 F.2d 757 (1956)

UNITED STATES of America v. Carmelo MONTALBANO, Appellant.

UNITED STATES of America v. Vito GENOVESE, Appellant.

Nos. 11785, 11790.

United States Court of Appeals Third Circuit.

Argued April 12, 1956.

Decided August 21, 1956.

Rehearing Denied September 18, 1956.

No. 11785:

Filindo B. Masino, Philadelphia, Pa., for appellant.

Alan J. Swotes, Asst. U. S. Atty., Philadelphia, Pa. (W. Wilson White, U. S. Atty., Philadelphia, Pa., on the brief), for appellee.

No. 11790:

Joseph H. Freehill, Washington, D. C. (Fanelli & Freehill, Washington, D. C., Ascenzio R. Albarelli, Asbury Park, N. J., on the brief), for appellant.

Albert G. Besser, Asst. U. S. Atty., Newark, N. J. (Raymond Del Tufo, Jr., U. S. Atty., Newark, N. J., on the brief), for appellee.

Before BIGGS, Chief Judge, and McLAUGHLIN and STALEY, Circuit Judges.

Rehearing Denied in No. 11790 September 18, 1956.

STALEY, Circuit Judge.

This opinion covers two separate appeals which arose from denaturalization proceedings. In No. 11,785, appellant Carmelo Montalbano challenges the order of the District Court for the Eastern District of Pennsylvania revoking his citizenship and cancelling his certificate of naturalization. In No. 11,790, Vito Genovese appeals from a similar order entered as to him by the District Court of New Jersey.

The sole question raised by Montalbano, and one of the questions raised by Genovese, is whether plaintiff, United States of America, sustained its burden of establishing that the respective defendants procured United States citizenship fraudulently and illegally.¹ All parties agree that the government's burden is a heavy one and this court should affirm only if the records contain clear, unequivocal, and convincing evidence which does not leave the issues of fraud or illegality in doubt. Schneiderman v. United States, 1943, 320 U.S. 118, 158, 63 S.Ct. 1333, 87 L.Ed. 1796; Baumgartner v. United States, 1944, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525; United States v. Anastasio, 3 Cir., 1955, 226 F.2d 912, certiorari denied, 1956, 351 U.S. 931, 76 S.Ct. 787.

In both cases, the government's charges rested on the alleged fact that in applying for citizenship each defendant had lied when asked whether he had ever been arrested or charged with violation of any law of the United States or State or any city ordinance or traffic regulation. There is no dispute that both Montalbano and Genovese had criminal records.²

The record in the Montalbano case shows that on February 15, 1933, Montalbano filed with the Immigration and Naturalization Service his "Application for Certificate of Arrival and Preliminary Form for Petition for Citizenship" which admittedly was not prepared by anyone in the Immigration Service, but was sent in by Montalbano or by someone on his behalf and was signed by Montalbano. Question 29 on that form, which read "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?" was answered in the negative. On March 15, 1933, Montalbano was interviewed twice under oath by Naturalization Examiners Halstead and Braden, who were called as witnesses in the district court and testified that, although they had no independent recollection of their respective interviews, the notes which they made on defendant's preliminary application and his petition for naturalization positively indicated that the defendant had told each of them that he had never been arrested.

The government's case against Genovese rested on similar facts. Though it is not clear who filled out his form, the same question about arrests was answered in the negative and the form was signed by him. He too was interviewed by Naturalization Examiners who made certain notations and marks on the relevant forms. These examiners were dead at the time of trial, but evidence as to the customary procedures during such interviews and the meaning of the markings and notes on the forms clearly indicated that Genovese had been explicitly asked about arrests and charges of crime and gave untruthful answers.

Both Montalbano and Genovese denied concealing past arrests or convictions. Montalbano contended that he disclosed his record but was told it did not matter unless he had "served time," while Genovese said that he had not read nor had he had read to him the question on the form about arrests and was told during oral interview that his record was of no interest since he had never been convicted of a felony. The testimony of each was rejected by the respective district courts.

We have analyzed the records closely and see no necessity for detailed outline of the logically persuasive features of the government's evidence in these cases. In both, the government adequately met the heavy burden which it faced. The records clearly justify the conclusion that each defendant deliberately concealed his criminal record and in so doing committed a fraud upon the government which supports the revocation of citizenship. United States v. Accardo, D.C., 113 F.Supp. 783, affirmed per curiam, 3 Cir., 208 F.2d 632, certiorari denied, 1954, 347 U.S. 952, 74 S.Ct. 677, 98 L.Ed. 1098; Corrado v. United States, 6 Cir., 1955, 227 F.2d 780.

The other basis for the revocation — that citizenship was illegally procured — needs little discussion. The law required that each defendant be a man "of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same" for a period of five years immediately preceding his application for citizenship. Act of June 29, 1906, § 4, Fourth, 34 Stat. 598. The deliberate failure of each defendant to disclose his criminal record shows that he was not of good moral character and therefore did not meet the statutory prerequisite to citizenship. United States v. Accardo, supra; Corrado v. United States, supra.

In the Genovese case, another point raised is that Genovese's citizenship cannot be revoked on account of fraud because, even had he revealed his criminal record during naturalization proceedings, that record was such that it would not have justified a refusal of citizenship. The 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. The proposition has a built-in rebuttal. Mere...