December 5, 1957
THE UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
ANTHONY PAUL MINERICH, DEFENDANT-APPELLANT.
Before DUFFY, Chief Judge, and FINNEGAN and HASTINGS, Circuit Judges.
FINNEGAN, Circuit Judge.
Several major aspects of denaturalization problems emerge in sharp relief through questions raised by respondent Minerich's appeal from the decree, entered below, November 9, 1956, which set aside an earlier order admitting him to citizenship on March 19, 1928. Twelve witnesses gave evidence for the United States in the denaturalization proceedings and Minerich, without testifying, rested on his defense consisting primarily of attempts to undercut the credibility of government witnesses through cross-examination of them by defense counsel. The case was tried by the district judge without a jury, and he considered that the allegations of the government's petition were proved. We disagree.
However, before reaching the findings of fact and conclusions of law underlying the challenged decree we must examine the government's affidavit, filed in obedience to the mandate of § 340 of the Immigration and Nationality Act of 1952, 66 Stat. 163, 8 U.S.C.A. § 1451(a), since Minerich attacks that affidavit*fn1 with ideas culled from United States v. Zucca, 1956, 351 U.S. 91, 76 S. Ct. 671, 100 L. Ed. 964. Rather than yielding firmly particularized criteria for testing § 340 affidavits, Zucca exhibits judicial reiteration of the Congressional directive in answer to the government's failure to file any affidavit when denaturalization proceedings were commenced against Zucca. The Zucca holding prohibits the substitution of a sworn complaint for an affidavit on this theory: "The complaint * * * is required merely to allege ultimate facts while the affidavit must set forth evidentiary matters showing good cause for cancellation of citizenship." 351 U.S. 91, 99, 76 S. Ct. 671, 676. What is now ripe for our consideration arises out of the relationship between the content*fn2 of such affidavit and the Zucca precept that a § 340 affidavit showing good cause is a procedural prerequisite to the initiation of proceedings under the following provision of the Act:
(a) It shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any court specified in subsection (a) of section 310 of this title in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were procured by concealment of a material fact or by willful misrepresentation, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively: Provided, That refusal on the part of naturalized citizen within a period of ten years following his naturalization to testify as a witness in any proceeding before a congressional committee concerning his subversive activities, in a case where such person has been convicted of contempt for such refusal, shall be held to constitute a ground for revocation of such person's naturalization under this subsection as having been procured by concealment of a material fact or by willful misrepresentation.If the naturalized citizen does not reside in any judicial district in the United States at the time of bringing such suit, the proceedings may be instituted in the United States District Court for the District of Columbia or in the United States district court in the judicial district in which such person last had his residence."
Though the slippery phrase "good cause" is the statutory benchmark for surveying such affidavits it was left unexamined by the Zucca court, beyond the lines quoted above, and a marginal notation citing United States v. Richmond, 3 Cir., 1927, 17 F.2d 28, and United States v. Salomon, 5 Cir., 1916, 231 F. 928, 929.
The Richmond opinion is interlaced with extensive quotations from United States v. Salomon, supra, where neither the petition nor the affidavit upon which it was based charged the commission of any fraud. When affirming dismissal of the denaturalization proceedings against Salomon, the Fifth Circuit regarded "The remedy given by the statute [then 2 U.S.Comp.Stat.1913, § 4374, now 8 U.S.C.A. § 1451] [as] the means provided for protecting the right of the government to contest applications for naturalization and for excluding from citizenship those who, under the law, are not entitled to the privilege," and commenting further said: "The statute does not indicate a purpose to give the remedy when there has been no injury. The district attorneys are authorized to institute the proceedings only 'upon affidavit showing good cause therefor.' The affidavit upon which this suit was instituted amounted to nothing more than an assignment of error of law apparent upon the face of the naturalization proceedings. It states no fact from which it may be inferred that a ground for contesting the application existed, or that the result might have been different if all the requirements of the statute had been complied with in the naturalization proceedings. It cannot be supposed that it was in the contemplation of the lawmakers that an affidavit would be sufficient to put upon the district attorney the duty of instituting the proceeding provided for if it showed no more than this one discloses. We think it is manifest that it was intended that the required affidavit should state facts constituting 'good cause' for instituting the proceeding, and should do more than point out errors of law in the procedure which led up to the naturalization. The conclusion is that the statutory remedy would be perverted from its obvious purpose of safeguarding things of substance, if it is permitted to be successfully resorted to without any showing that the issue of the attacked certificate of citizenship might properly have been denied at the time it was granted, if the procedure had been a strict compliance with all statutory requirements."
The proposition which the government, in these denaturalization cases, desires to prove is that citizenship was, at an earlier date, procured under circumstances described in § 340 authorizing annulment of the order admitting an alien to citizenship.The affidavit, then, should reveal facts offered to establish that proposition. See, e.g., I Wigmore § 2 (3rd ed. 1940). This simply means disclosing some of the premises from which the conclusion is drawn, by the United States attorney, that § 340 proceedings are warranted. From such an affidavit an experienced judge should be able to detect a United States attorney's reckless categorization or noncritical selection of candidates for denaturalization, and we think that is all Congress intended by the procedural safeguard. Certainly a pre-trial preview of the complete array of evidentiary facts which the government intends to establish through evidence, parol and documentary, at the trial is far in excess of the showing called for by Congress. We think the concept*fn3 "good cause" entails more than the nature and quality of the evidentiary facts arranged in § 340 affidavits. Experience exposes the fallacy of certainty in ordinary human affairs and leads to the practical usefulness of the "good cause" criterion. These affidavits are the means by which courts can ascertain whether the United States Attorney's conclusion about instituting denaturalization proceedings dictated what the reasoning ought to be, in contradistinction from an affidavit showing the basis for reasoning which determined what his conclusion in that regard shall be. It is in this aspect that the affidavit filed below meets the statutory test of "good cause." It is unnecessary that an affiant exhibit personal knowledge of each atomic fact he reads in the Service's files. In daily affairs men constantly rely on unverified judgments yet in so doing act with good cause.After all, the acid test of verification is available to both sides during the denaturalization proceeding.
Having given effect to what we think was the Congressional aim in mandating "good cause" as the standard for § 340 affidavits, and thus resolving the procedural aspect of this appeal, the merits become the focal point. During our study of this record we were mindful of the passage from Klapprott v. United States, 1949, 335 U.S. 601, 612, 69 S. Ct. 384, 389, 93 L. Ed. 266 written by Justice Black when announcing the judgment of a divided court:
"Furthermore, because of the grave consequences incident to denaturalization proceedings we have held that a burden rests on the Government to prove its charges in such cases by clear, unequivocal and convincing evidence which does not leave the issue in doubt. * * * This burden is substantially identical with that required in criminal cases - proof beyond a reasonable doubt."
On the other hand that view expressed by the Klapprott majority cannot stand in isolation for earlier, a majority of the court speaking through Mr. Justice Murphy had pointed out in Schneiderman v. United States, 1943, 320 U.S. 118, 160, 63 S. Ct. 1333, 1353, 87 L. Ed. 1796 inter alia, that: "A denaturalization suit is not a criminal proceeding. But neither is it an ordinary civil action since it involves an important adjudication of status." If the Federal Rules of Civil Procedure are applicable to these proceedings, and we think they are, then that part of Rule 52, 28 U.S.C.A., providing, "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses" must require a different reading, than usual, because when delivering the court's opinion reported as Knauer v. United States, 1946, 328 U.S. 654, 656, 66 S. Ct. 1304, 1306, 90 L. Ed. 1500, Mr. Justice Douglas informed us that: "When denaturalization is sought * * * the standard of proof required is strict. We do not accept even concurrent findings of two lower courts as conclusive. * * * We re-examine the facts to determine whether the United States has carried its burden of proving by 'clear, unequivocal, and convincing' evidence, which does not leave 'the issue in doubt,' that the citizen who is sought to be restored to the status of an alien obtained his naturalization certificate illegally. * * *" Following the clear direction of Schneiderman, Klapprott, and Knauer, we made an independent appraisal of the plaintiff's evidence presented on the issues of fraud and misrepresentation and found that the government's proof failed. Some aspects of the evidence presented by the plaintiff to show that the order, dated March 19, 1928, admitting Minerich to citizenship was procured by concealment of a material fact and willful misrepresentation are, in chronological order, the following:
May 27, 1903 Minerich born in Dragdlich, Austria.
July 29, 1905 Arrived at the port of New York.
April 4, 1923 Filed Declaration of Intention (No. 9646; No. 809869) to
become a citizen in the Common Pleas
Court of Westmoreland
March, 1926 Minerich placed at closed Communist
Party meetings in the
district headquarters of the
Communist Party of New York,
by plaintiff's witness Malkin.
He also placed Minerich in
closed meetings on several
occasions during 1927, 1928,
1931, 1932, 1933, 1934 and 1935.
December 9, 1927 Petition (Nos.
2774; 77263) for Naturalization showing
birthplace as Dragalic, JugoSlavia,
and his then
current residence as
Greensburg, Pennsylvania. Testified
before the Naturalization examiners.
February 1, 1928 Report of Minerich's
arrest No. D-19569, McDonald County,
Washington, Pennsylvania, charged with
See also: Arrest record - docket
book, plaintiff's Exhibit
3 re file No. 2774-P-77263.
February 2, 1928 Discharged.
February 17, 1928 Minerich addressed meetings
of the United Mine Workers of
America and their sympathizers
at Dillonvale and Yorkville,
in Jefferson County, Ohio.
The criminal information
alleged that 300-400
persons (Union members and
sympathizers) were present at the first meeting and 200
members of the United Mine Workers in attendance at the
second place of meeting.
February 20, 1928 Minerich arrested and charged with committing acts in
violation of an injunction issued by the U.S. District
Court, Southern District of Ohio, Eastern Division. The
criminal information, referred to above, was filed this
date in the United States District Court, Southern
of Ohio. From the certified copy of the docket
appears Minerich was also arraigned on this day. During
the proceedings below, in the case now before us the
following colloquy took place:
"Mr. Bickley: [Assistant U.S.
Attorney] You are stating for
the record here, 'suppose I told you, Mr. Minerich was
arrested on February 28? Are you admitting that on the
"Mr. Steinberg: [Counsel for Minerich] Yes, on February
28th, I am not denying the arrests. The arrests were
introduced, and we are admitting them, and in fact we are
proud of them, that a man should be arrested in a cause
"There were senators and other people of National repute
who were interested in the coal miners' strike in those
days." I, Plaintiff's Appendix, 258.
March 2, 1928 "Defendant found guilty (of contempt), sentenced
to 45 days
Licking County Jail, stay of execution until March
" On that date notice of appeal was filed. The opinion
reported as Minerich v. United States, 6 Cir., 1928,
29 F.2d 565, shows a sentence of
"90 days in jail."
March 19, 1928 Final hearing on petition for naturalization.
connection see plaintiff's Exhibit No.
1 - Investigation
The duplicate copy of the certificate
(No. 2819219) issued to Minerich by the United States
District Court, Western District of
"the court having found
that the petitioner * * * had in
all respects complied with the
Naturalization Laws of the
United States, and that he was entitled to
v. be so admitted,
it was thereupon
ordered by the said court that he be
admitted as a citizen * * *."
Immediately before his
admission to citizenship, on this
date, Minerich alleged:
"a. That he was attached to the Principles of the Constitution of the United States and was a person of good moral character and that he would support and defend the Constitution and laws of the United States against all enemies both foreign and domestic.
"b. That he would bear through faith and allegiance to the United States of America, and that he took his oath of allegiance freely, without any mental reservation or purpose of evasion."
March, 1928 3, The Labor Defender, 61 published photograph of Minerich
with caption "Tony minerich Outstanding Leader of
The Militant Striking Miners of Penn."
December 7, 1928 Opinion of the Sixth Circuit reported as Minerich v. United
States, 29 F.2d 565, 566, certiorari denied 279
49 S. Ct. 264, 73 L. Ed. 989, affirming order
punishing Minerich for contempt of an equity injunction
preventing unlawful interference by strikers with the
operation of a certain coal mine.
In this opinion, the Court noted that Minerich "appearing
by counsel * * * undertook to plead that he was guilty of
doing the acts alleged, but not guilty of contempt."
29 F.2d 565.
The Minerich opinion also points up that the criminal information showed that he violated the District Court injunction by "* * * addressing a meeting of strikers and urging them to violate the injunction" and that the proof was that Minerich "* * * said to one or the other, or both, of two meetings held in the same locality on the same day - 'If the injunction says two pickets put on two hundred pickets. If two hundred pickets is not enough put on two thousand pickets. You will never get any place this way. The way to win this strike is to have a real picket line and violate the damnable injunction.' There is no suggestion that there was any other injunction about which defendant could have been talking save this one. He thus confesses knowledge of it." 29 F.2d at page 566.*fn4
April 3, 1929 - Final Commitment of Minerich to jail under contempt
There is evidence in this record that from sometime in the latter part of 1925 to and including 1950, Minerich was a supporter and worker for the World Communist Movement and held active membership in the Workers (Communist) Party known later as the Communist Party of the United States.
In support of its case the government called the witnesses Throckmorton and Ilderton, who were naturalization examiners*fn5 at the time Minerich was processed under the 1906 Act provisions. Both testified they questioned Minerich while he was under oath and that at the preliminary examination*fn6 he stated that he had never been arrested and was neither an anarchist, nor a Communist and he believed in the organized government of the United States. But the crucial point, and which the government in its brief squarely recognizes is that: "It is quite true that at the time Mr. Minerich was asked these questions, he had not been arrested * * *." (Brief for appellee, p. 12).
Consequently plaintiff reasons that Minerich had a duty to disclose his arrest and conviction, in Ohio seventeen days before naturalization, in Pennsylvania to the latter court and, having failed to reveal, what are now uncontested facts of arrests, manifested a lack of "good moral character" required by the statute operating in 1928. This reasoning would be good if it gives a true conclusion from true premises, and not otherwise. But the duty*fn7 to disclose is an element in the premise and that is unestablished. United States v. Palmeri, D.C.N.Y.1943, 52 Supp. 226, 227, heavily relied on by the government, is an instance where a defendant did not reveal anything "about his arrest of May 28, 1941, on June 16, 1941, when he appeared for final hearing * * * [because] nobody asked him anything about it, and that he was very happy to complete his naturalization process on that date and obtain the * * * Certificate." Rejecting Palmeri's defense, the district court said: "The failure to disclose the arrest was the failure to perform a duty which the applicant owed to the court, and it was that failure which led the court to grant the petition; thus the defendant revealed a lack of the good moral character which it was his duty to establish." Though unreviewed, Palmeri has been followed by several district courts throughout the country. But we disagree with the holding in Palmeri because the duty to disclose is assumed by saying that if the final naturalization hearing had been postponed for some reason and Palmeri was convicted then "the petition ultimately would have been denied on the ground that during all of the periods referred to in * * * [the statute] * * * [Palmeri] had failed to prove that he has 'been and still is a person of good moral character, attached to the principles of the Constitution * * * and well disposed to the good order and happiness of the United States', as evidenced by his conviction." Id., at page 227. In Palmeri, the trial judge assumed the arrest (and subsequent conviction) would have barred naturalization because such facts indicated want of good moral character, and by making that assumption part of his premise he reasoned to the conclusion that there was a duty to disclose a fact which would have prevented naturalization. We think the government is aware of that point, for in Minerich's case plaintiff points up two elements: (1) was there a duty on Minerich to disclose his arrests to the naturalization court? and, (2) did the failure so to do equate to "bad moral character?" If such a duty exists it must come from case law or elsewhere for we have found nothing by way of a statutory provision, effective prior to or in 1928, commanding voluntary disclosure during the interim period following the last examination and the final hearing at which the oath of citizenship is administered. This case is unlike United States v. De Francis, 1931, 60 App.D.C. 207, 50 F.2d 497, 498, cited to us by the government, where at the naturalization hearing "the judge asked the question whether there was proof of conviction of the sale of intoxicating liquor" and "Appellee was the only one present who knew that he had been convicted, and he stood mute." The record before us is devoid of any facts surrounding the admission*fn8 proceedings in Pennsylvania and for that matter we are simply given the fact of arrest and the fact of naturalization from which to infer there was a duty to disclose which was breached. We would go much too far if, on the state of the record, we now postulate such a duty for the year 1928. To be sure there is a tempting implication dangled before us, but the yardstick of proof, already delineated above, precludes our capitulation. See e.g. Cufari v. United States, 1 Cir., 1954, 217 F.2d 404. Only by reading back into the antecedents of Minerich's behavior certain characteristics that belong to its consequences could it now be said the duty of disclosure existed during the seventeen day period culminating in the oath of citizenship.
"* * * (Concealment) of a material fact or * * * willful misrepresentation" are the two statutory*fn9 alternative grounds authorizing revocation of an order admitting a person to citizenship.The question now arises on the words "concealment" and "material fact," undefined in the current piece of legislation. There is a delusive exactness about those quoted words and their application here is heightened by the Congressional shift from the terms fraud and illegal procurement earlier laid down as the statutory basis for revocation. There are, of course, declarations and petitions filed by aliens in various stages of the naturalization process and without doubt such written documents were uppermost in the mind of the Congress when § 340(a) was drafted. Providing for revocation when the certificate of naturalization is "illegally procured" or obtained through "fraud" present broader grounds than do either of the § 340 alternatives. Silence at the time of naturalization is the basis here for seeking forfeiture of Minerich's citizenship. There is no evidence, whatever, that he did anything to prevent inquiry, or to elude investigation, mislead or hinder the officials charged with duties under the naturalization Act. Combining Minerich's membership in the Communist Party, U.S.A., and his activities in that connection, together with his arrests and the conviction does not aid in solving the critical question stemming from his non-disclosure unless we find he had a duty to disclose.Section 9 of the Act of 1906 provided: "That every final hearing upon such [naturalization] shall be had in open court before a judge * * *." 34 Stat. 599; 8 U.S.C.A. § 398.*fn* But in a marginal note on page 791 of Laws Applicable to Immigration And Nationality published by the Department of Justice (1953) we find: "The provisions of this section (9) requiring the examination of the petitioner and witnesses under oath and in the presence of the court in general did not apply in any case where a designated naturalization examiner or officer conducted the preliminary hearing under the fourteenth subdivision of sec. 4, Act of June 29, 1906 (44 Stat. 709)." That is virtually a description of the procedures shown by the evidence in the record before us.
At the time of Minerich's naturalization hearing the fourth subsection in § 4 of the 1906 Act*fn** provided:
"It shall be made to appear to the satisfaction of the court admitting any alien to citizenship that immediately preceding the date of his application he resided continuously within the United States five years at least, and within the State or Territory where such court is at the time held one year at least, and that during that time he has behaved as 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.* * *"
We think it clear that under § 4 the court looked to examiners of the Service for information regarding applicants rather than the individual petitioner because of the fourteenth subdivision added to § 4, supra by the Act of June 8, 1926 (44 Stat. 709-710): [*]
[*] Now 8 U.S.C.A. § 1446.
"Fourteenth. (a) The judge of any United States district court, or the senior judge of such court if there are more judges than one, is hereby authorized, in his discretion, to designate one or more examiners or officers of the Immigration and Naturalization Service serving as such examiner or officer within the territorial jurisdiction of such court, to conduct preliminary hearings upon petitions for naturalization to such court, and to make findings and recommendations thereon. For such purposes any such designated examiner or officer is hereby authorized to take testimony concerning any matter touching or in any way affecting the admissibility of any petitioner for naturalization, to subpoena witnesses, and to administer oaths, including the oath of the petitioner to his petition and the oath of his witnesses."
Throckmorton and Ilderton*fn10 were the examiners who filled in plaintiff's Exhibit 1 (Examiner's slip) as part of the "preliminary hearing" held December 9, 1927 during which they interviewed Minerich. From their testimony we are satisfied that the examiners conducted this hearing in connection with, and by use of the petition for admission to citizenship; when the examiners reported to the court no further official action was taken between December 9, 1927 and March 19, 1928.From all we can find in this record the judge relied on the examiners' report and not upon the petitioner. In this state of the record we refrain from creating a duty to disclose after the Throckmorton-Ilderton hearing.There is, of course, evidence of Minerich's communist membership sometime during 1925 (the evidence is stronger beginning in 1926) to 1928 and through subsequent years, but we have been unable to discover "clear, unequivocal and convincing evidence" that either examiner asked Minerich if he was a communist; though they did ask him if he was an anarchist and his reply was in the negative. If "anarchist"*fn11 included "communist" in 1928 then Minerich concealed or misrepresented his true position, but the uncertainties inherent in this record override the implications that Minerich was an anarchist either by avowal or actuality.
During the course of his separate concurring opinion in Dennis v. United States, 1941, 341 U.S. 494, 563, 564, 565, 569, 71 S. Ct. 857, 894, 895, 95 L. Ed. 1137, Mr. Justice Jackson underscored several points that are relevant to our problem: "Communism, the antithesis of anarchism, appears today as a closed system of thought representing Stalin's version of Lenin's version of Marxism * * *. The Communists have no scruples against sabotage, terrorism, assassination, or mob disorder; but violence is not with them, as with the anarchists, an end in itself. * * * Force would be utilized by the Communist Party not to destroy government but for its capture." Elsewhere in his opinion the Justice acutely observed: "* * * Either by accident or design, the Communist strategem outwits the antianarchist pattern of the statute aimed against 'overthrow by force and violence' if qualified by the doctrine that only 'clear and present danger' of accomplishing that result will sustain the prosecution." See also Yates v. United States, 1957, 354 U.S. 298, 77 S. Ct. 1064, 1 L. Ed. 2d 1356.
Today, we must avoid viewing with hostile spirit the silence of Minerich in 1928. Though communism is now recognized as an enemy ideology, contemporary recognition finally became crystallized in official circles of our government at a comparatively late date.*fn12 This is not criticism, but history and "a page of history is worth a volume of logic," wrote Mr. Justice Holmes in New York Trust Co. v. Eisner, 1921, 256 U.S. 345, 349, 41 S. Ct. 506, 507, 65 L. Ed. 963. To presently approve Minerich's forfeiture of citizenship would be saying that he ought to be blamed for having remained silent because of what is currently acknowledged about the communist threat.
Regardless of what government witnesses Malkin, Note, Gitlow and Wright described from the witness stand as the communist objective*fn13 during 1925 to 1928, Congressional disapproval of affiliation with that party remained legislatively inarticulate until recent years and, the record before us is silent on the point. But all we mean is that there is no legalistic way, this late in the day, by which we can fairly decide if there was such concealment by Minerich in 1928 warranting 1957 revocation of his citizenship. This is an attack on an equity decree. A political decision, here, based on hindsight would infect the judicial processes of our free society faster than tolerating retention of a probably undeserved privilege of citizenship by Minerich, who manifests persistent adherence to the communist party. Our decision on this appeal has no bearing whatever on his activities after he became a citizen.
Settling the constitutionality of § 340(a) is indispensable*fn14 for disposition of this case and for that reason we reach the respondent's challenge of that provision. But we think § 340(a) survives respondent's constitutional attack. Knauer v. United States, 1946, 328 U.S. 654, 66 S. Ct. 1304, 90 L. Ed. 1500; Luria v. United States, 1913, 231 U.S. 9, 34 S. Ct. 10, 58 L. Ed. 101; Johannessen v. United States, 1912, 225 U.S. 227, 32 S. Ct. 613, 56 L. Ed. 1066. The decree of denaturalization brought here for review is reversed.