The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is an action brought by the plaintiff on September 29, 1942, to revoke and set aside the order of this Court, dated December 13, 1938, admitting the defendant to citizenship on Petition No. 249,678, and cancelling the Certificate of Naturalization No. 4301247, issued to Vincenzo Rossini, the defendant, on the ground that such order and certificate were procured fraudulently and illegally.
Plaintiff's counsel, in his brief, contends that when the defendant took his oath in open Court, in connection with his naturalization, and swore that he absolutely and entirely abjured and renounced all allegiance to the King of Italy, of whom he was then a subject, and when he also swore that he would support and defend the Constitution and Laws of the United States of America against all enemies foreign and domestic and would bear true faith and allegiance to the same, he did so with a mental reservation and for the purpose of evasion, and thus obtained naturalization by fraud.
Plaintiff's counsel, in his brief, further contends that defendant's naturalization also was illegally procured, because, for a period of five years immediately preceding the date of his application for naturalization, he was not attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the United States.
The questions thus presented are, has the plaintiff shown, as required by law:
1. That the defendant did not at the time he took his oath of renunciation and allegiance in open Court in connection with his naturalization take such oath freely, without any mental reservation or purpose of evasion.
2. That the defendant was not at the time of his application for citizenship, and for a period of five years immediately prior thereto, attached to the principles of the Constitution and well disposed to the good order and happiness of the United States.
These contentions are somewhat more limited than the charges made in the complaint herein in which plaintiff charges that the defendant at the time of the filing of his Petition for Citizenship, and at the time he was admitted, and at the time of the taking of his oath:
"He was not attached to the principles of the Constitution of the United States nor was he well disposed toward the good order and happiness of the United States."
"He did not intend to renounce or abjure all allegiance to the King of Italy, Victor Emanuel III."
"He took the oath of allegiance with a mental reservation which nullified the oath."
"At the time he took the oath of allegiance he did not intend to support and defend the Constitution and Laws of the United States against all enemies."
"At the time he took the oath he did not intend to bear true faith and allegiance to the United States and to the Constitution and Laws thereof."
"Since being admitted to citizenship he has not supported and defended the Constitution and Laws of the United States against all enemies and has not borne true faith and allegiance to the United States and the Constitution and Laws thereof."
The complaint also contains a general allegation that the Certificate of Naturalization was procured by the said defendant fraudulently and illegally for the purpose of obtaining the rights and privileges of protection of American citizenship without intending to assume the duties thereof, and that such Certificate of Naturalization is subject to cancellation.
The evidence offered covered a broad field, and I have allowed considerable latitude in order to arrive at an establishment of the truth.
Of course, evidence has been received as to the acts and statements by the defendant subsequent to his naturalization, but the order and certificate could not be set aside in this action because of such acts and statements, but because by such acts and statements evidence might be furnished of what the defendant had in his mind at the time of his naturalization and within the five year period immediately preceding his naturalization.
The defendant was born in Brindisi, Italy, on October 25, 1900. He attended grammar school, technical high school, the Nautical Institute in Italy, and the Royal Italian Naval Academy of Leghorn, and was licensed as a Merchant Marine Officer by Italy. From the date of his graduation in 1922 until 1929, he followed his career as a Merchant Marine Officer, as a result of which he was a member of the Fascist Party, and obtained the rank of Second Officer. In 1922 the defendant was given the rank of War Ship Reserve Officer. The defendant arrived in this County on March 2, 1933, and has since that time remained continuously in the United States, and maintained a home at Brooklyn, New York, where he lives with his wife and two minor children, and all of them are citizens of the United States of America.
From 1933 until April 11, 1943, the defendant was employed by the Italian language newspaper "Il Corriere d'America" published by Mr. Generoso Pope, and for the past seven or eight years he was employed in the capacity of social and labor editor.
His top salary was $45 per week, and he at times also acted as a reporter.
On October 10, 1935, the defendant organized, and had incorporated, the National United Italian Associations, Inc., which has been known, and to which I will hereinafter refer, as the N.U.I.A.
Since its incorporation the defendant has been the Chairman and directing force of that organization N.U.I.A., which consisted of more than one hundred fraternal and social clubs and educational centers.
The Statute in force at the time of defendant's admission to citizenship authorizing cancellation, in so far as it is necessary for consideration, at this time, reads as follows: "It shall be the duty of the United States district attorneys for the respective districts, or the Commissioner or Deputy Commissioner of Naturalization, upon affidavits showing good cause therefor, to institute proceedings in any court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit, for the purpose of setting aside and canceling the certificate of citizenship on the ground of fraud or on the ground that such certificate of citizenship was illegally procured * * *." Act June 29, 1906, § 15, 34 Stat. 601, as amended, Title 8, § 405, U.S.C.A.
And the existing law, in so far as this case is concerned, is substantially the same. Title 8, Section 738, U.S.C.A.
Two causes of action are set up by the Statute: One, for fraud: and, the other, for illegal procurement by failure to meet statutory requirements. These are separate and distinct causes of action, the requirements of proof differing in each cause of action.
Neither time nor space will permit of a review of each portion of the evidence, but all of it has been considered by me.
It consists of statements and articles published in the press, particularly in "Il Corriere d'America", and statements and articles attributed to the defendant as author, editor or controller of the bulletin of the National United Italian Associations, Inc., which appeared in that paper, the activities of the defendant as the organizer, incorporator, and head of that organization, attendance at meetings of the constituent organizations, and the actions and speeches of defendant, and others, at such meetings, the teachings at the schools of such organizations, the visit of the defendant, Mr. Lupis and Mr. Umberto Gualtieri, to Governor Poletti, the claim that defendant misled the men of importance whom he made honorary members of the N.U.I.A., that defendant was a member of the Fascist Party before leaving Italy, that defendant became a member of the Fascist Party when he joined the National Fascist Newspaper Guild of Rome, that defendant took a part in the reception to General Balbo, and that defendant was acquainted with the men listed, considerable in number, and all of whom were Fascists.
Let us not lose sight of the fact that we are not engaged in determining whether or not citizenship should be granted to the defendant, where our inquiry could be very wide, but we are engaged in determining whether the solemn granting of citizenship should be set aside, and the certificate cancelled, where our inquiry is limited.
It is not my opinion as to what the finding should have been on the hearing for admission, but whether on all the evidence such finding could legally have been made.
That the defendant was a member of the Fascist Party in Italy, while he was acquiring his education, and that while connected with an Italian language newspaper in this Country he became a member of the Fascist Party when he joined the National Fascist Newspaper Guild of Rome, a Fascist organization, from which he resigned in 1937, because he found it of no use, do not impress me as playing any important part in this matter. It is common knowledge that defendant could not have received his education, or acted as an officer of an Italian merchant vessel, unless he was a ...