United States v. Zucca/Dissent Clark

by Tom C. Clark

United States Supreme Court

351 U.S. 91

United States  v.  Zucca

 Argued: Jan. 24, 25, 1956. --- Decided: April 30, 1956

Mr. Justice CLARK, with whom Mr. Justice REED and Mr. Justice MINTON join, dissenting.

The Court's ruling today seriously obstructs the Government in filing denaturalization proceedings in this type of case. It reverses a long line of cases in the lower federal courts ^[1] and disregards a consistent administrative practice of over thirty years standing, a period which includes two recodifications of the immigration laws. Furthermore, the identical point on which the case today is decided was present in two earlier cases where it apparently was not considered important enough to be presented to this Court. ^[2]

The only authority for the Court's action is an unpublished, informal, and somewhat ambiguous inter-departmental letter of the Attorney General written in 1907. While any Attorney General might well be proud to see his views given such lasting effect, he undoubtedly would be surprised to learn that the authority of such an informal statement could overrule later court decisions and a thirty-year, firmly established position of the Department of Justice. Many cases witness the fact that the Court has often given little or no weight to carefully drawn opinions of the Attorney General on questions of statutory interpretation.

But my major objection to the decision today is the extreme burden placed on the Government in cases such as this. The Court construes § 340(a) of the Immigration and Nationality Act to require something more than was filed in the present case. The complaint here was verified; the Assistant United States Attorney swore that the facts alleged in the complaint were 'true' and 'that the sources of his information * * * are the records which are on file in his office.' Thus the complaint in this case was supported by the jurat of a notary public and the sworn statement of an Assistant United States Attorney who held office by virtue of his oath to carry out his official duties fairly and impartially. No more was present in Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796.

The complaint alleged that Zucca had lied in his alien registration statement in 1940, and in his preliminary naturalization examination and testimony before a naturalization examiner in 1952. He is alleged to have stated under oath that 'he did not belong to and was not associated with any organization which teaches or advocates the overthrow of existing government.' The complaint then alleges that Zucca 'was a member of the Communist Party of the United States, including the Workers Communist Party * * * from 1925 to 1947.' Under § 305 of the Nationality Act of 1940, the complaint continues, Zucca's naturalization was illegal.

But the majority declares that these sworn allegations are insufficient. It makes a vague reference to the pleading of 'ultimate facts while the affidavit must set forth evidentiary matters showing good cause for cancellation of citizenship.' From this statement I can draw only one conclusion. As respondent contends, 'good cause' means 'that the Government must furnish the Court with sworn statements by persons having personal knowledge of the facts * * * Congress could not have intended that the courts be required to accept the second-hand statements of investigators * * *.' ^[3] Apparently neither the United States Attorney nor anyone in the Immigration Service or the FBI can make such an affidavit unless he has personal knowledge of the facts. This would limit verification by these officers to cases based on prior undisclosed criminal convictions, arrival age where controlling, etc.

But in proceedings based solely on membership in the Communist Party substantially different conditions prevail. Invariably, membership can be proved only from the testimony of other members concerning attendance at meetings, payment of dues, etc. There are no membership cards in the Party and have been none for more than a decade. If these evidential methods of proof-the testimony and identity of undercover agents-must be disclosed in an affidavit, the Government must choose between foregoing denaturalization cases and drying up its source of information before the proceeding can be brought. It is common knowledge among law enforcement officers that witnesses are affidavit-shy, particularly in cases involving subversion. Often, testimony can be obtained only in court with the aid of compulsory process. The difficulties in requiring exposure by affidavit are overwhelming and decisive in cases of this type.

I do not believe Congress ever intended such a rule. To me § 340(a) is clear and unambiguous. Its plain reading is that proceedings may be filed by the United States Attorney 'upon affidavit showing good cause therefor.' Here the Attorney swore to specific charges which certainly do constitute 'good cause.' The sworn statement that petitioner was a member of the Communist Party and the Workers Communist Party from 1925 to 1947 alleges a prima facie case. To me it seems obvious that the purpose of § 340(a)-to reduce the possibility of spurious denaturalization proceedings-is fully served by such a sworn statement.

Nor did the Congress intend that there should be two trials of issues of fact in these cases. To require the filing of evidential affidavits implies, as Zucca contends, extensive testing of their sufficiency before trial. The defendant is thus given two chances at the Government's case. There is no comparable requirement for an indictment in a criminal prosecution, Costello v. United States, 350 U.S. 359, 76 S.Ct. 406. But denaturalization is only a civil proceeding to withdraw a privilege wrongfully obtained. There has always been the requirement of proof under cross-examination of charges against the naturalized citizen, but apparently in this case the Court authorizes an additional procedure. Before his trial in this denaturalization proceeding, Zucca may file a bill of particulars and take depositions of each witness signing a 'good cause' affidavit. The scope and reliability of the affidavits are then made the subject of judicial inquiry. ^[4] If the Government proves its case at this stage, it may then go to trial, where the same evidence is considered again. To my way of thinking, this clearly frustrates an important congressional program, a part of the broader one designed to protect our country from Communist infiltration.

In my opinion § 340(a) requires the United States Attorney to allege in a sworn complaint sufficient factual information to show a prima facie case for denaturalization. At most it should be sufficient for an officer of the Immigration and Naturalization Service familiar with the case to make such allegations under oath. If the Court would require this paper to be headed 'Affidavit' and contained in a separate blue backing, I would have no objection, though I see nothing to be gained from such a technical labeling. But as I read the Court's decision today it goes much further than this, and it may well submerge the denaturalization procedure established by Congress in a morass of unintended procedural difficulties.

Notes

1. Schwinn v. United States, 9 Cir., 112 F.2d 74, affirmed 311 U.S. 616, 61 S.Ct. 70, 85 L.Ed. 390; United States v. Tuteur, 7 Cir., 215 F.2d 415; United States v. Knight, D.C.Mont., 291 F. 129, affirmed 9 Cir., 299 F. 571; United States v. Collins, D.C.S.D.N.Y., 131 F.Supp. 545; United States v. Shinkevich, D.C.E.D.Pa., 131 F.Supp. 547; United States v. Jerome, D.C.S.D.N.Y., 115 F.Supp. 818; United States v. Lustig, D.C.S.D.N.Y., 110 F.Supp. 806; United States v. Schuchhardt, D.C.N.D.Ind., 48 F.Supp. 876; United States v. Leles, D.C.N.D.Cal., 227 F. 189, 236 F. 784; United States v. Radzie, D.C.S.D.N.Y., 14 F.R.D. 151; United States v. Vavorito, D.C.N.D.Ohio, 7 F.R.D. 152.
2. In Schwinn v. United States, 112 F.2d 74, the Ninth Circuit held that the filing of the affidavit was not 'jurisdictional,' and passed on the merits. We granted certiorari and affirmed summarily 'on the sole ground' that the certificate had been illegally procured. 311 U.S. 616, 61 S.Ct. 70, 85 L.Ed. 390. In Schneiderman v. United States, 320 U.S. 118, 63 S.Ct 1333, 87 L.Ed. 1796, we considered the merits at length, even though the 'affidavit' filed in that case by the Immigration Inspector revealed that his information was based, as here, solely on the Government's files, and was in exactly the form used here.
3. The trial judge held 'that before a United States Attorney may institute a denaturalization proceeding he must be furnished with an affidavit of good cause.'
4. The trial judge held, 'But, the protection afforded by the requirement of an affidavit of good cause would be seriously impaired if the defendant in a denaturalization action could not examine it and test its sufficiency by motion before trial.'