United States v. Zucca
| Decision Date | 16 November 1954 |
| Citation | 125 F. Supp. 551 |
| Parties | UNITED STATES of America, Plaintiff, v. Ettore ZUCCA, also known as Mario Sarni, also known as Ettore Sarni Zucca, Defendant. |
| Court | U.S. District Court — Southern District of New York |
J. Edward Lumbard, U. S. Atty. for Southern Dist. of N. Y., New York City, George C. Mantzoros, Asst. U. S. Atty., New York City, of counsel, for United States.
Judd & Gurfein, New York City, Orrin Judd, New York City, of counsel, for defendant.
The defendant was naturalized by this Court on January 4, 1944. The United States now brings this action under section 340(a) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 260, 8 U.S.C. § 1451(a) (1952 ed.), to revoke and set aside the order admitting the defendant to citizenship and to cancel the defendant's certificate of naturalization on the grounds that the defendant's naturalization was illegally procured and that the defendant concealed material facts and wilfully misrepresented others in the course of the proceedings leading to his naturalization.
The defendant has moved that the complaint be dismissed because of (1) the Government's alleged failure to draft an adequate complaint and (2) the Government's failure to file an affidavit showing good cause for the institution of the instant proceeding.
The defendant argues that the Government's complaint is procedurally inadequate because it allegedly fails to comply with Rules 8(a), 8(c) (sic), 9(b), and 10(b) of the Rules of Civil Procedure, 28 U.S.C.A. These Rules deal with the general rules of pleading, the particularity with which fraud should be pleaded, and the form of pleadings. Defendant asserts that the complaint fails to give fair notice of the Government's claim, but it is clear that this assertion is without merit. The complaint alleges that the defendant's naturalization was illegally procured in that it was prohibited by section 305 of the Nationality Act of 1940 and that the defendant concealed material facts and misrepresented others in the course of the proceedings leading to his naturalization. It sets forth the alleged act which made the procurement of defendant's naturalization illegal and the allegedly concealed and misrepresented facts with what may well be unnecessary specificity for a civil complaint.
In view of this, it would appear that the defendant is merely saying that a better complaint should have been drawn. However, it is not the function of this court to pass on the artistic merits of pleadings. See Dioguardi v. Durning, 2 Cir., 1944, 139 F.2d 774. The complaint not only gives the defendant fair notice of the Government's claim but it also informs him of the alleged facts upon which that claim is based. The motion to dismiss the complaint because it is procedurally inadequate is therefore denied.
The defendant has also moved that the complaint be dismissed because of the Government's failure to file an affidavit showing good cause for the institution of this proceeding. He contends that the filing of such an affidavit is required by section 340(a), 8 U.S.C.A. § 1451(a) (1952 ed.), which reads:
"It shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings * * * for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization * * *."
Section 340(a) is derived from section 338(a) of the Nationality Act of 1940, 54 Stat. 1137, 1158 which was derived from section 15 of the Act of June 29, 1906, 34 Stat. 596, 601, the first enactment providing for denaturalization on the grounds of fraud or illegal procurement. See S. Rept. No. 1137, 82d Cong., 2d Sess. 45 (1952); S. Rept. No. 1515, 81st Cong., 2d Sess. 755 (1950) The 1906 Act contained the language:
"it shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings * * *"
to denaturalize a person on the grounds of fraud or illegal procurement; and the quoted language was incorporated into the 1940 and 1952 acts without Congressional comment.
to institute denaturalization proceedings, Congress merely imposed a requirement that United States Attorneys institute such proceedings whenever they were furnished with an affidavit of good cause. It did not intend, the argument runs, that a United States Attorney should be powerless to institute proceedings if he had not been furnished with an affidavit.
Although it can be assumed that the civil denaturalization actions initiated by the Government prior to the passage of the Act of June 29, 1906 were valid, see Johannessen v. United States, 1912, 225 U.S. 227, 240, 32 S.Ct. 613, 56 L.Ed. 1066; S. Rept. No. 1515, 81st Cong., 2d Sess. 754 (1950), I cannot agree with the Government's conclusions. The legislative history of the Act of June 29, 1906 indicates (1) that the procedure first outlined in section 15 of that Act, and now set forth in section 340 of the Immigration and Nationality Act of 1952, is the only procedure for denaturalizing a person on the grounds of fraud or illegal procurement, and (2) that this procedure requires that before a United States Attorney can institute a civil denaturalization action he must be furnished with an affidavit of good cause.
The Government's premise that the legislative history of the 1906 Act does not indicate that Congress intended to restrict the theretofore exercised power of United States Attorneys to institute civil denaturalization actions is, in my opinion, invalid. The Government apparently assumes that Congress intended the procedure which is set forth in section 15 of the 1906 Act to be an alternative to the procedure in use before the Act took effect. But section 15 and its legislative history furnish abundant evidence that Congress intended that the procedure set forth in that section should be followed whenever civil denaturalization actions were thereafter initiated.
In addition to referring to the affidavit of good cause section 15 provided that a defendant in a denaturalization proceeding should have 60 days personal notice in which to answer the complaint unless he was absent from the United States or from the district in which he had last resided. And, after the bill that later became the 1906 Act was introduced, Section 15 was amended to provide that a denaturalization action could only be instituted in a court in the judicial district in which the naturalized citizen resided. See statement of Congressman Bonynge, manager of the bill, 40 Cong.Rec. 7874 (1906).
The fact that Congress inserted these requirements for the protection of naturalized citizens in the 1906 Act is inconsistent with the Government's position. It indicates that in enacting section 15 of that Act Congress did intend to limit the theretofore exercised power of United States Attorneys to institute civil denaturalization actions. For if, as the Government contends, the power of United States Attorneys to institute such actions is derived from 28 U.S.C. § 507(a) (2) (1952 ed.), which empowers United States Attorneys to prosecute all civil actions in which the Government is concerned, and is not restricted by the provisions of section 340 of the Immigration and Nationality Act of 1952 (), the provisions which safeguard naturalized citizens are effective only if United States Attorneys choose to give them effect by proceeding under section 340 instead of under their general power to prosecute all civil actions for the Government. An interpretation which gives such cavalier treatment to important safeguards insisted on by Congress cannot be sustained. I therefore conclude that the power of United States Attorneys to institute civil denaturalization actions is derived from and limited by the provisions of section 340 of the Immigration and Nationality Act of 1952. Cf. Bindczyck v. Finucane, 1951, 342 U.S. 76, 81-84, 72 S.Ct. 130, 96 L.Ed. 100; United States ex rel. Volpe v. Jordan, 7 Cir., 1947, 161 F.2d 390, 395.
This determination still leaves open the following questions:
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...from § 15 of the Act of June 29, 1906, 34 Stat. 596, 601 (the first enactment providing for denaturalization, see United States v. Zucca, D.C. S.D.N.Y.1954, 125 F.Supp. 551, affirmed 2 Cir., 1955, 221 F.2d 805; United States v. Zucca, supra, 351 U.S. 91, 76 S.Ct. 671, and see Bindczyck v. F......
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