The opinion of the court was delivered by: BRUCHHAUSEN
This proceeding was instituted by the plaintiff, the Government, to cancel the certificate of naturalization issued to the defendant upon the ground that he obtained it by the fraudulent concealment of his prior criminal record consisting of several arrests, one of which culminated in a conviction on a charge of forgery and sentence thereon to imprisonment for one year. The statute claimed to have been violated is Section 340(a) of the Immigration and Nationality Act of 1952, also cited as 8 U.S.C.A. § 1451(a).
It developed upon this trial that the defendant was an ex-convict at the time he gained citizenship in 1927 in that the said forgery conviction and imprisonment had occurred in Sicily six years previously and that the conviction and sentence were affirmed on appeal.
Although questioned by Government agents in 1925, 1927, 1928 and 1953, as to his moral character, it is claimed that he concealed his criminal record.
While some of those occasions were separate and apart from the naturalization proceeding, it has been held that such evidence is relevant as bearing upon the behavior and intent of the applicant. United States v. Rossi, 2 Cir., 182 F.2d 292; United States ex rel. Harrington v. Schlotfeldt, 7 Cir., 136 F.2d 935, certiorari denied Krause v. United States, 327 U.S. 781, 66 S. Ct. 680, 90 L. Ed. 1008.
On the first occasion in 1925, the defendant intimates that he was ignorant of the procedure and relied upon the advice of a friend. His principal excuse for the alleged concealments at other times was that he thought the questioners were inquiring only about arrests in this country.
The Background of the Defendant Prior to 1925, When he was Allegedly First Questioned by A. Government Agent in Palermo in Connection With his Application for A Visa to Enable him to Return to the United States.
It appears that the defendant was born in a village near Palermo, Italy, on October 1, 1897; that he left school at the age of thirteen years, was in business with his father for about eleven years; that in 1921 he left the old country for America, accompanied by family friends, Gaetano Mangano and his son, Vincent; that the elder Mangano helped him with the travel documents; that all three of them engaged in a grocery business in Chicago; that in 1923 Gaetano Mangano returned to Italy; that in Chicago in 1924, the defendant executed and filed a notice of intention or declaration to become a citizen, giving his occupation as merchant; that in the spring of 1925, he procured the necessary papers for a visit to his family in Italy, taking with him the duplicate copy of the notice of intention; that the defendant claims that he was then aided by a real estate man whose name he did not recall; that he remained abroad a few months and in May 1925 procured a visa from the American Consul in Palermo, enabling him to return to America.
As to the Defendant's Sworn Statement Before the American Consul in Palermo in 1925 that he had Never Been Arrested.
At the trial the defendant admitted that he affixed his signature to the application for a visa (Exhibit 3) in the American Consul's Office in Palermo in May 1925. Contained therein are the details of the defendant's birth, residences, physical characteristics, names and addresses of parents, statements that the defendant was able to speak and write in Italian and English, that he had 'not been in prison' and was not a member of any of the fourteen classes listed therein excluded from admission to the United States under the Immigration Laws, one of which is designated 'Criminals.' Attached to the application were official certificates from local authorities indicating that no criminal record had been found.
The American Consul, Mr. Edgar Nathan, whose certificate is attached to the application, testified by deposition that the principal work of his office was the consideration of visa applications; that an applicant was required to produce police records showing that he had not been arrested; that the application forms were not issued to the public; that the clerks in his office were instructed to question applicants in the Italian language as to whether they had ever been imprisoned; that no visa was issued to one known to be a convict; that the clerks filled in the applicants' answers and caused the forms to be executed before the Consul or Vice Consul.
The defendant, at this trial, testified that he did not know the contents of the said application signed by him; that he was accompanied to the Consul's Office by his old friends, the aforementioned Gaetano Mangano, now deceased, and his son, Vincent; that the elder Mangano handed him the application for his signature; that he was neither questioned nor asked to swear to it and did not meet the Consul. Vincent Managano also so testified.
It is noted that the defendant was then in his 28th year, had been in business for fourteen years and had twice crossed the ocean.
One of the weaknesses in the defense is that the elder Mangano, the defendant's alleged agent on this mission and an old family friend who had helped him to get to America in 1921, was then fully aware of the defendant's conviction and imprisonment for forgery in 1920. In this connection the defendant, on cross-examination at this trial, testified viz.:
'Q. Mr. Mangano appealed it? (i.e. the 1919-1920 arrest and conviction)
'The Court: Q. They appealed it for you? You knew it had been appealed?
Exhibits 8 and 9, placed in evidence by the Government at this trial, established that the arrest was based on a criminal charge of knowingly using a forged document; that the defendant was convicted thereon, sentenced to one year's imprisonment and that the judgment of conviction was affirmed on appeal.
The second time when the defendant was questioned by a Government agent, as previously mentioned, was in 1927 when he presented his petition for citizenship.
As to The Defendant's Alleged False Answers to Questions of the Naturalization Examiner on June 7, 1927.
After establishing that the Examiner, Robert P. Lesch, died prior to the trial the Government introduced into evidence his handwritten record of the examination (Exhibit 4) together with an interpretation of the symbols therein in use by the officials showing that the defendant denied he had a criminal record. Following is an extract of material portions of that record together with the meanings of the symbols, viz.: