United States v. Villaneuva, G-170.

• Decision Date: 30 November 1936
• Docket Number: No. G-170.,G-170.
• Citation: 17 F. Supp. 485
• Parties: UNITED STATES v. VILLANEUVA.
• Court: U.S. District Court — District of Nevada

17 F. Supp. 485

UNITED STATES v. VILLANEUVA.

No. G-170.

District Court, D. Nevada.

November 30, 1936.

Thomas O. Craven, Asst. U. S. Atty., of Carson City, Nev.

W. M. Kearney, of Reno, Nev., for defendant.

NORCROSS, District Judge.

Plaintiff's bill of complaint prays for decree that the certificate of naturalization issued to defendant be set aside and cancelled. The bill of complaint alleges that defendant filed his petition for citizenship on March 19, 1928, and on September 21st following it was granted; that at the time of the hearing the representative of the Naturalization Service presented evidence that defendant had been convicted in this court of unlawful possession of intoxicating liquor in violation of the National Prohibition Act (27 U.S.C.A.) on three several occasions, May 18, 1922, December 21, 1922, and November 14, 1923, and moved the dismissal of said petition, which motion was denied; that on September 10, 1929, he was again adjudged guilty of the same offense; that defendant's naturalization was fraudulently procured, in that when his said petition was filed and granted he was not attached to the principles of the Constitution, and did not intend to support the laws of the United States.

The answer of defendant denies that his naturalization was fraudulently procured; denies that he was not attached to the principles of the Constitution, and did not intend to support the Constitution and laws of the United States; denies that his oath was not taken in good faith, or was taken with a reservation that he then intended to violate the laws of the United States. Further answering the bill of complaint and by way of "further defense," defendant alleges that the said petition for citizenship was heard before the district court of the state of Nevada, in and for Washoe county; that objections to the granting of said petition were overruled by the court, and judgment awarding a certificate of naturalization entered; that subsequent to the entry of such judgment, on or about September 22, 1928, plaintiff herein filed in said state court a notice of intention to move for a new trial, and filed notice of appeal from said judgment and certificate of naturalization, and thereafter filed its bill of exceptions; that subsequent to such filings plaintiff abandoned the said appeal. An additional "further defense" alleged: That the plea of guilty entered on September 10, 1929, was entered by defendant to avoid the expense and trouble incident to a criminal trial.

The fact that preliminary proceedings taken in the state court to perfect an appeal from the order of admission to citizenship were finally abandoned, is not a defense to a suit in equity in a Federal District Court to cancel a certificate of naturalization. United States v. Ness, 245 U.S. 319, 38 S.Ct. 118, 62 L.Ed. 321; United States v. Ginsberg, 243 U.S. 472, 37 S.Ct. 422, 61 L.Ed. 853; Luria v. United States, 231 U.S. 9, 34 S.Ct. 10, 58 L.Ed. 101; Turlej v. United States (C.C. A.) 31 F.(2d) 696, 698; Johannessen v. United States, 225 U.S. 227, 32 S.Ct. 613, 56 L.Ed. 1066; United States v. Ali (D. C.) 7 F.(2d) 728; United States v. Mirsky (D.C.) 17 F.(2d) 275, 276; United States v. Wexler (D.C.) 8 F.(2d) 880; United States v. Milder (C.C.A.) 284 F. 571. In United States v. Olaechea (D.C.) 293 F. 819, 821, Farrington, Judge, speaking for this court said: "Jurisdiction is clearly conferred on this court by section 15 of the Act of June 29, 1906, to cancel a certificate of citizenship on the ground that it was issued fraudulently or procured illegally in the state court. Naturalization is not a right; it is granted on such conditions as the United States sees fit to impose. An alien can acquire American citizenship only by strict compliance with the terms and procedure prescribed by law. United States v. Ginsberg, 243 U.S. 472, 475, 37 S.Ct. 422, 61 L.Ed. 853."

The most serious question presented in the case grows out of the fact that within six months following his admission to citizenship defendant was again charged with violation of the National Prohibition Act, and withdrew a former plea of not guilty and entered a plea of guilty to a count charging possession of intoxicating liquor, other counts of the indictment being dismissed. We have therefore a situation wherein the defendant had on three several occasions within approximately a year prior to filing his petition for citizenship been prosecuted for having in his possession intoxicating liquor — wine — and in each instance having later interposed a plea of guilty thereto, and then within the year following his admission, again entering a plea of guilty to a similar offense the possession charged...