Before DUFFY, Chief Judge, and FINNEGAN and HASTINGS, Circuit Judges.
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
March, 1926 Minerich placed at closed Communist
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,
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 ...