United States v. Tapolcsanyi, 4219.

• Decision Date: 17 April 1930
• Docket Number: No. 4219.,4219.
• Citation: 40 F.2d 255
• Parties: UNITED STATES v. TAPOLCSANYI.
• Court: U.S. Court of Appeals — Third Circuit

40 F.2d 255 (1930)

UNITED STATES v. TAPOLCSANYI.

No. 4219.

Circuit Court of Appeals, Third Circuit.

April 17, 1930.

David Wallerstein, of Philadelphia, Pa., for appellant.

Henry Ellenbogen, of Pittsburgh, Pa., and Isaac E. Ferguson, of Chicago, Ill., Louis E. Graham, U. S. Atty., of Beaver, Pa., and Raymond D. Evans, Asst. U. S. Atty., of Pittsburgh, Pa., for the United States.

Before WOOLLEY and DAVIS, Circuit Judges, and JOHNSON, District Judge.

WOOLLEY, Circuit Judge.

The United States, by its bill, asked the District Court to vacate an order conferring citizenship upon John Tapolcsanyi and cancel his certificate on the ground that he procured his naturalization illegally and fraudulently by falsely alleging in his petition that he was attached to the principles of the Constitution of the United States. After a hearing in which it accorded the respondent a wide latitude in testifying about his principles, the court, finding the averment of fraud sustained by the evidence — mainly his own — vacated the order and cancelled his certificate of citizenship. This appeal followed.

The case turns on a question of fraud. As the Act of June 29, 1906, 34 Stat. 596, U. S. Code, title 8, § 382 (8 USCA § 382), prescribed as a condition of naturalization that "It shall be made to appear to the satisfaction of the court that * * * the applicant has behaved as a man of good moral character, attached to the principles of the Constitution of the United States," and as the respondent (then an applicant for naturalization) so made it appear by his verified petition in the precise words of the statute, the single fact question, determinative of fraud and therefore determinative of the validity of his naturalization, is whether he spoke truthfully or falsely.

In order to prove that Tapolcsanyi, contrary to his sworn statement, was at the time he applied for naturalization, opposed to the principles of the Constitution as generally understood and observed, the government introduced evidence in substance as follows:

In January, 1920, when under arrest on a warrant of deportation, he testified at a hearing before an Immigration Inspector as follows:

"The question was asked, `Do you believe in the destruction of the bourgeois class?' He answered, `Yes, I do, by the proletariat class.' He was also asked, `Do you believe in the overthrow of the capitalistic class?' He answered, `Yes.' He was asked, `Do you believe in the Government of the United States as it exists today?' His answer was, `No.' Also, he was asked, `Are you opposed to organized government?' He answered, `Yes.'"

Four months later — May 27, 1920 — Tapolcsanyi filed his petition for naturalization. On December 20, 1920, it was granted. Afterward there came into the hands of the government a letter, (introduced in evidence), bearing date October 17, 1921, which the respondent admitted he wrote and sent to his brother in Hungary. First giving his views of Hungarian capitalists, and charging his brother, who had been a soldier and later a gendarme, with murder of workmen of other nationalities and workmen of Hungary, he went on to say:

"You should know, if you do not know it yet, that the workingmen have only one country, and it is the Soviet Russia; and the Hungarian workmen will have a country of their own, only when Hungary will be Soviet also. * * * And know this — that I have been for the past eight years a pure, red Communist. * * * I want you to know that I respect a true fellowman, who has the same principles as I have a thousand times more than a brother who is patriotic. Such a man is an enemy to himself and also to me, and if it is true that you helped to murder by dear fellowmen, then I never, in this life, want to know you as a brother; and very calmly I could send a bullet through your heart, if these things are true. You should know that there is no difference between one workingman and another. * * * If you will regret all this and turn to the right path — in other words, if you will have your interests with the International Workingmen, the leader of which is the III Communist International, then you will be my brother and fellowman. * * * I know you will not like this letter, but it is my revolutionary duty to write all this to you. * * * one thing is certain — that I am a Communist and will be until my last breath. And now we will greet you once more and remain with revolutionary greetings,

"John,...