United States of America, Plaintiff-appellant, v. Gaetano Lucchese, Also Known As Thomas Luckese, Also Known As Thomas Lucase, Also Known As Thomas Arra, Also Known As Thomas Luchese, Defendant-appellee, 247 F.2d 123 (2d Cir. 1957)

This is a denaturalization action brought under § 338(a) of the Nationality Act of 1940, 54 Stat. 1158,¹  later amended by 66 Stat. 239 (1952), 8 U.S. C.A. § 1451(a), in which the government appeals from an order dismissing its complaint for failure to file an affidavit of good cause at the commencement of the proceeding. The District Court held that filing the affidavit after the complaint did not comply with the statutory requirement. On the authority of United States v. Matles, 2 Cir., 247 F.2d 378, we reverse.

Lucchese was naturalized in 1943. Prior to this, in 1941, he filed an application for a Certificate of Arrival and Preliminary Form for Petition of Naturalization, in which he admitted to one conviction for theft of an automobile in 1921 and swore that other than this he had never been arrested or charged with violation of the law. He also swore to this on an Alien Registration Form on December 16, 1940 and reiterated it before a Naturalization Examiner at a hearing on November 21, 1941, preliminary to the filing of the naturalization petition.

On the Alien Registration Form, the application, and at the hearing, he also swore that he had never been known by any name other than either Gaetano Lucchese or Thomas Lucchese.

On November 17, 1952 the Government filed a verified complaint to denaturalize Lucchese under § 338(a) of the Nationality Act of 1940. In the complaint it was alleged (1) that Lucchese's statements about his criminal record were false for he had been arrested not once but many times, and the complaint listed the dates, places and charges of five arrests in addition to the one he had admitted to; (2) that he had lied in testifying about the names he had used, for he had also used the name "Thomas Arra" when arrested in 1927 for receiving stolen goods; (3) that all these misrepresentations were for the purpose of fraudulently procuring citizenship; and (4) that these misrepresentations indicated that he was not a person of good moral character during the period required by law. The details of the complaint are material to this appeal, and we therefore set them out in the margin.²

No affidavit of good cause was filed with the complaint on November 17, 1952. However, such an affidavit was apparently drawn up on that date, for the affidavit ultimately filed on November 23, 1955 was dated the same day as the verified complaint and referred to it as "the attached complaint." This affidavit, sworn to by Ralph Farb, an Attorney for the Immigration and Naturalization Service, stated:

"* * * [A]s more fully appears from the attached complaint of the United States against Gaetano Lucchese, etc., which complaint seeks revocation of defendant's naturalization, good cause exists for revocation of naturalization for the following reasons:

"1. The defendant fraudulently procured naturalization in that he misrepresented facts as to his name and identity and also as to his record of arrests.

"2. The defendant's naturalization was illegally procured in that at the time of admission to citizenship he had not been for the period required by law, a person of good moral character, having both in naturalization proceedings and in alien registration proceedings made false and fraudulent representations under oath."

On October 27, 1955 Lucchese moved to dismiss the complaint for failure to file the affidavit. The government, on November 23, 1955, then filed the affidavit which was dated November 17, 1952, and Judge Inch denied the motion on the ground that the affidavit requirement had been satisfied.

On March 26, 1956 Lucchese again moved to dismiss on the grounds that (1) the affidavit failed to set forth the facts showing good cause for the institution of the proceeding; (2) the affidavit itself showed that the action was not based on the affidavit; (3) the affidavit was filed after the complaint. Judge Inch again denied the motion.

After the decision in United States v. Zucca, 351 U.S. 91, 76 S. Ct. 671, 100 L. Ed. 964 (April 30, 1956), Lucchese moved to reargue his motions on the ground that the decision in Zucca supported each of the three grounds for dismissal that he had previously presented. Judge Inch held that Zucca required the affidavit to be filed with the complaint and, reversing his prior rulings, dismissed the complaint.

Whether the affidavit must be filed with the complaint was one of the issues before this court in United States v. Matles, supra, in which it was held that the affidavit can be filed after the complaint and that United States v. Zucca, supra, does not require otherwise. Hence, on the authority of United States v. Matles, we reject the defendant's reading of Zucca.

For the reasons stated in the Matles decision, we also reject defendant's contention that the affidavit of good cause must be made by someone with personal knowledge of the facts sworn to. See also United States v. Costello, D.C.S.D.N.Y. 1956, 142 F. Supp. 290.

Lucchese further contends that the good cause affidavit is inadequate because it does not contain evidentiary facts in support of the complaint but merely the conclusory statements that defendant fraudulently procured citizenship by misrepresentations as to his name, identity and criminal record, and that because of these misrepresentations he did not satisfy the good moral character requirements.

Examination of the affidavit discloses that it contained more that these conclusory statements which, by themselves, would certainly be insufficient. These conclusions were prefaced by an incorporation by reference of the complaint, in these words:

"* * * as more fully appears from the attached complaint of the United States v. Gaetano Lucchese, etc., which complaint seeks revocation of defendant's naturalization, good cause exists for revocation of naturalization. * * *"

As noted, the complaint contained detailed allegations setting forth many evidentiary matters,³  and, if incorporated, would bring the affidavit up to the standard which Zucca seems to have established, 351 U.S. at page 99, 76 S. Ct. at page 676.

Lucchese claims, however, that this attempted incorporation by reference is ineffective, for no complaint was attached to the affidavit and he therefore could not know that the complaint herein was intended. This contention is frivolous. The record discloses only one denaturalization complaint outstanding against Lucchese, and that was dated the same day as the affidavit, although as we have stated, the affidavit was not filed until much later. It is inconceivable that Lucchese or anyone else who had read and had possession of the original complaint could be at all uncertain as to which complaint was referred to.

Lucchese also seems to contend that under § 338(a) the action must be based "upon [an] affidavit showing good cause therefor," and that this action was not, but upon records in the Immigration and Naturalization Service and the Federal Bureau of Investigation. He seems to interpret the word "upon" to mean that the affidavit must be the source of the information on which the government bases its action. The affidavit must therefore be in existence prior to the initiation of the action and, he contends, that was not true here, for whatever complaint was referred to in this affidavit the latter was drawn up after that complaint.

In support of his argument that the action was not based upon the affidavit herein, Lucchese points to these factors: (1) verification in the complaint does not refer to the affidavit as the source of information but rather to "correspondence, papers and reports"; (2) the affidavit does not itself state the evidentiary matter but refers to the complaint, and this, he contends, necessarily implies that the affidavit was drawn up after the complaint and that the action could not have been based on the affidavit.

While agreeing with Lucchese's interpretation of the statutory use of "upon," see United States v. Zucca, 351 U.S. at page 100, 76 S. Ct. at page 677, we do not agree that the statute was not complied with.

As to the first point, "correspondence, papers and reports" are words sufficiently broad and comprehensive to include an affidavit. Secondly, we are not persuaded that the affidavit was not drawn up until after the complaint was filed, simply because the affidavit incorporates the allegations of the complaint. The use of this shorthand device indicates only that the two documents were drawn up at about the same time. It does not imply that the affidavit was drawn up after the complaint was filed. On the contrary, it would seem that here the affidavit and complaint were drawn up at about the same time, and were completed by November 17, 1952 when the complaint was filed. Apparently it was not the practice to file the affidavit with the complaint and so the affidavit was kept in the files of the United States Attorney. But regardless of whether the affidavit was filed with the complaint or later, see United States v. Matles, supra, suit was commenced only after an affidavit of good cause had been executed, and that constitutes full compliance with the statutory requirement of § 338(a) that the suit be based upon the affidavit.

In § 338(a) Congress sought to guard against the misadventure that suits with such serious possible consequences to naturalized citizens might be commenced without a careful preliminary study and a finding simultaneous with the filing of the suit that there was good cause for its commencement. In this case the date and contents of the affidavit show that the defendant has enjoyed the protection which Congress intended he should have. The motion to dismiss the complaint should have been denied.

Accordingly we reverse the order of the District Court.

STEWART, Circuit Judge (concurring).

In view of United States v. Zucca, 351 U.S. 91, 76 S. Ct. 671, 100 L. Ed. 964, the district court held that a denaturalization proceeding could not be maintained when the affidavit of good cause was filed subsequent to the complaint. My independent view is that the district court was correct.

The concluding words of the prevailing opinion in Zucca seem to me unambiguous: "The mere filing of a proceeding for denaturalization results in serious consequences to a defendant. Even if his citizenship is not cancelled, his reputation is tarnished and his standing in the community damaged. Congress recognized this danger and provided that a person, once admitted to American citizenship, should not be subject to legal proceedings to defend his citizenship without a preliminary showing of good cause. Such a safeguard must not be lightly regarded. We believe that, not only in some cases but in all cases, the District Attorney must, as a prerequisite to the initiation of such proceedings, file an affidavit showing good cause." [Emphasis added.] 351 U.S. 99-100, 76 S. Ct. 676-677.

I agree with my brethren, however, that the law of this circuit is now otherwise. For that reason alone I concur. While a distinction could be made between this case and United States v. Matles, 2 Cir., 247 F.2d 378, in that an amended complaint was filed there, the basic issue is substantially the same in both cases.