United States v. Stromberg, 15572.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 227 F.2d 903
• Docket Number: No. 15572.,15572.
• Parties: UNITED STATES of America, Appellant, v. Hyman STROMBERG, Appellee.
• Decision Date: 15 November 1955

227 F.2d 903 (1955)

UNITED STATES of America, Appellant,
v.
Hyman STROMBERG, Appellee.

No. 15572.

United States Court of Appeals Fifth Circuit.

November 15, 1955.

227 F.2d 904

J. Edward Worton, Asst. U. S. Atty., James L. Guilmartin, U. S. Atty., Miami, Fla., for appellant.

William A. Gray, Philadelphia, Pa., Morton Rothenberg, Miami Beach, Fla., Walter Stein, Philadelphia, Pa., for appellee.

Before RIVES, JONES and BROWN, Circuit Judges.

RIVES, Circuit Judge.

Both parties originally treated this appeal in a denaturalization proceeding as being from a final decision, and, hence, within this Court's jurisdiction. 28 U.S.C.A. § 1291. Upon oral argument, the Court suggested that, if the notice of appeal were followed literally, the appeal was from the order denying plaintiff's motion under Rules 52(b) and 59(a), Federal Rules of Civil Procedure, 28 U.S.C.A.¹ The motion had been timely filed, and, under Rule 73(a), Federal Rules of Civil Procedure, the time for appeal from the final judgment had not expired when the notice was filed. Even under such circumstances, the Eighth Circuit has held that an appeal expressed to be from the order denying the motion cannot be considered as an appeal from the final judgment. United States v. Muschany, 8 Cir., 156 F.2d 196, 197; St. Lukes Hospital v. Melin, 8 Cir., 172 F.2d 532, 533; see also, Long v. Union Pacific Railroad Co., 10 Cir., 206 F.2d 829, 830. This Circuit is committed to the more liberal rule that, where it is obvious that the overriding intent was effectively to appeal, we are justified in treating the appeal as from the final judgment. Atlantic Coast Line R. Co. v. Mims, 5 Cir., 199 F.2d 582, 583, and cases there cited;

227 F.2d 905

see also, Sobel v. Diatz, 88 U.S.App.D.C. 329, 189 F.2d 26, 27; Greenwood v. Greenwood, 3 Cir., 224 F.2d 318, 319.²

Stromberg was born in Russia in 1903. With his parents he came to the United States in 1910, and has resided here since. In a New York court in 1923, he was found guilty, after a plea of guilty, of an attempt to commit third degree burglary, a crime involving moral turpitude. In December, 1932, he left the United States on an eight-day trip to Cuba, returning to Miami, Florida by plane on January 4, 1933. On September 6, 1945, he was admitted to citizenship.

The original complaint was filed September 17, 1952, pursuant to § 338 of the Nationality Act of 1940, 54 Stat. 1158-1159, § 738 of old Title 8, U.S.C.A. It alleged by way of conclusion that Stromberg's naturalization was "illegal and fraudulently procured", but the facts set forth all related to fraud in making false statements in support of his petition for naturalization and in concealing the fact that he was engaged in an unlawful occupation, namely that of bookmaking.

The Nationality Act of 1940 was superseded on December 24, 1952 by the McCarran Act, June 27, 1952, c. 477, Title III, Chap. 2, § 340, 66 Stat. 260, 8 U.S.C.A. § 1451. Section 338(a) of the Act of 1940 had provided that the order admitting a person to citizenship might be revoked and set aside and the certificate of naturalization cancelled "on the ground of fraud or on the ground that such order and certificate of naturalization were illegally procured." Section 340(a) of the McCarran Act changed the grounds to read, "on the ground that such order and certificate of naturalization were procured by concealment of a material fact or by willful misrepresentation". On November 9, 1953, months after the McCarran Act had become effective, the complaint was amended so as to charge that, in the light of Stromberg's conviction in 1923 of a crime involving moral turpitude, he could not have lawfully resided in the United States after his return from Cuba on January 4, 1933, because he was then subject to the excluding provisions of the Immigration Act of 1917, 39 Stat. 875-878, which provides:

"The following classes of aliens shall be excluded from admission into the United States: * * * Persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude: * * *."

The district court, in its findings of fact, held that the Government had failed to carry its burden of proof to show the element of fraud in the various misstatements of fact by Stromberg, and that finding is not questioned on appeal. The sole insistence of the Government here is that the certificate of naturalization was illegally procured and should be cancelled...