CHAUNT v. UNITED STATES

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Argument of Joseph Forer

Chief Justice Earl Warren: Number 22, Peter Chaunt, Petitioner, versus United States.

Mr Forer.

Mr. Joseph Forer: Mr. Chief Justice, may it please the Court.

This is a denaturalization case, which is here on certiorari to the Ninth Circuit.

The petitioner, Peter Chaunt, was born in Hungary and he came to this country in 1921, when he was 22 years old.

On June 27, 1940, he filed a formal petition for naturalization in the eastern district of New York.

And on that date, he was interviewed by examiners for the Immigration and Naturalization Service.

They passed him and recommended his naturalization.

And on November 28, 1940, the eastern district admitted him to citizenship.

I think it is of some relevance that he was admitted to citizenship under the Nationality Act of 1906.

The 1940 Nationality Act, which superseded the 1906 Act had already been passed, but was in effect until sometime in 1941.

Anyway, on November 28, 1940, he became a citizen.

Thirteen years later, the Government brought a denaturalization suit in California under Section 340(a) of the Immigration and Nationality Act alleging that he had procured naturalization by concealment and misrepresentation and asking for a judgment cancelling his citizenship.

The complaint alleged concealments and misrepresentation on three subjects.

And the first subject was on an arrest record.

Briefly, the complaint alleged that the in the naturalization proceedings, Chaunt has been asked if he had ever been arrested and he said he had not been arrested and in fact he had a record of several arrests.

I will at a subsequent point in detail what those arrests were.

And the second ground was that he had concealed Communist Party membership that having been asked whether in effect whether he was a member of the Communist Party, he had denied it and this denial was untrue.

And the third ground, I would lump together in one alleged that he had misrepresented his attachment to the Constitution disposition to the good order and happiness of the United States and he has intend to owe allegiance to the United States.

And those three allegations as to his -- what you might call as political state of mind when I refer -- if I referred to him again, I will call them the attachment ground.

But those were the three subjects of misrepresentation alleged.

Arrest, Communist Party membership and attachment.

Justice John M. Harlan: Was there -- was there a specific question in Communist Party membership?

Mr. Joseph Forer: That's what the complaint alleged and that's what the evidence -- well --

Justice John M. Harlan: I couldn't find it in the questionnaire.

Mr. Joseph Forer: No.

There was nothing in the questionnaire and the reason why there is nothing in the questionnaire was because there was nothing in the statute.

Justice John M. Harlan: I just want to check.

Mr. Joseph Forer: But the -- the -- the immigration examiner according to the word of his testimony, asked them two questions relevant to that subject.

One was, do you believe in communism, fascism or Nazism.

In which he answered no, according to the immigration examiner.

And the other was, according to the immigration examiner, that he asked on what organizations do you belong to, and he answered, "The International Workers' Order."

And apparently no others --

Justice John M. Harlan: Is there any difference between this questionnaire and the ones that that were involved nowhere (Voice Overlap) --

Mr. Joseph Forer: No, no, this questionnaire has that same famous question 28, that no act (Inaudible).

Justice John M. Harlan: The Court --

Mr. Joseph Forer: The same questionnaire.

Justice John M. Harlan: The Court did -- didn't reached that but it's the same questionnaire.

Mr. Joseph Forer: That's right, same questionnaire.

Justice Felix Frankfurter: When you -- when you said according to the immigration examiner, was --

Mr. Joseph Forer: Well --

Justice Felix Frankfurter: Was there a stenographic minute of the examiner?

Mr. Joseph Forer: No, the reason I -- I -- I hitched it a bit was because the immigration examiner, naturally enough, could not testify as to what had actually happened at the interview.

He (Voice Overlap) --

Justice Felix Frankfurter: There were no stenographic minutes of the interview.

Mr. Joseph Forer: No.

All he could testify to was what was his practice as to what questions he asked and what some of his symbols -- sort of hieroglyphic symbols meant.

Now as to the arrest ground, this we should be clear on, that was on one of the forms, and as to that ground, it wasn't just what the practice of the examiner was to ask, although the examiner testified, it was his practice as (Voice Overlap) --

Justice Felix Frankfurter: Aren't -- aren't the interview by the immigration expected normally taking down stenographic minutes?

Mr. Joseph Forer: No.

Justice Felix Frankfurter: So that --

Mr. Joseph Forer: Certainly not --

Justice Felix Frankfurter: -- subsequently depends on his recollection on what took place.

Mr. Joseph Forer: His recollection and his notations.

Unknown Speaker: Was that --

Justice Felix Frankfurter: Isn't -- that is the practice not to.

Mr. Joseph Forer: Well that was the -- that -- that was the practice then and the -- I don't know what the current practice is.

I know that it used to be the regular practice because in every denaturalization suit that I've seen that participated in, it was always the same way.

Justice Hugo L. Black: Was that issue raised if he did not ask the questions?

Mr. Joseph Forer: The issue was raised as to the sufficiency of the evidence, yes.

Justice Hugo L. Black: On -- in the defense -- was it the defense that the immigration in respective did not ask the communist questions?

Mr. Joseph Forer: Well, I wouldn't -- one of the defenses was that the evidence was not sufficiently show that he had asked those questions.

Yes, that was one of the issues I think.

But I'd like to get away from the communist question to get to what I think is the real question which is the arrest question.

I said there were three grounds of misrepresentation or three subjects of misrepresentation alleged.

With the complaint, it was filed an affidavit of good cause as required by the statute.

But the affidavit only alluded to two of the grounds of misrepresentation, namely, the ones as to Communist Party membership and the ones as to what -- what I have quote attachment to the Constitution.

And there is not a word in the affidavit relating to arrest or the concealment of arrest.

And this is really conceded by the Government in its brief.

Now, the case went to trial and the trial court ordered the -- the petitioner's naturalization cancelled, making findings adverse to the petitioner on all three subjects contained in the complaint including the arrest subject, which was not contained in the affidavit.

Justice Felix Frankfurter: Was it argued at the trial that the issues have to be limited to the two affidavit designated subjects.

Mr. Joseph Forer: The -- the petitioner's Los Angeles lawyer filed a motion to dismiss the original complaint.

One of the grounds of which was that the complaint that as to the arrest ground, stated in the complaint, that was an invalid ground because it was not covered in the affidavit of good cause.

Thereafter, the Government amended its complaint, and as a matter of fact, the case went to trial on a second amended complaint.

Justice Felix Frankfurter: That's it for all three grounds?

Mr. Joseph Forer: Yes.

All of the complaints set forth all three grounds.

Justice Felix Frankfurter: But the affidavit did not.

Mr. Joseph Forer: The affidavit only set forth two.

Justice Felix Frankfurter: And your contention, is it -- I'm jumping ahead that the -- that the main issue must be restricted to the claims made in the affidavit of good cause.

Mr. Joseph Forer: Yes.

And it becomes acute for this reason.

The appellant appealed to the Ninth Circuit and the Ninth Circuit affirmed that the judgment solely on the arrest ground, that is solely on the ground, which was not covered in the complaints.

And it didn't reach at that point.

Justice William O. Douglas: In the affidavit.

Mr. Joseph Forer: Not covered in the affidavit, I'm sorry.

Justice William O. Douglas: That's your point for -- found on page 11?

Mr. Joseph Forer: Eleven of what?

My brief Your Honor?

Justice William O. Douglas: Of the record.

The court is without jurisdiction and one of the cause of action sought that the alleged and the claims is not supported by the affidavit.

Is that the --

Mr. Joseph Forer: Yes.

Yes, that's the arrest you're referring --

Justice William O. Douglas: That's right.

Mr. Joseph Forer: -- to arrest.

Justice William O. Douglas: That's right.

Mr. Joseph Forer: I should say I was not the trial counsel on that but that was obviously what was intended in the Government.

But the Court of Appeals affirmed the denaturalization on the one subject that was not in the affidavit, and then it said that since the arrest support the judgment, we don't have to go into the other two subjects of alleged misrepresentation namely, Communist Party membership and attachment.

Justice Hugo L. Black: Did you raise in the Court of Appeals the question?

Mr. Joseph Forer: No.

The lawyer did not raise it in the Court of Appeals.

Justice Hugo L. Black: Nor in the petition either?

Mr. Joseph Forer: I beg your pardon.

Unknown Speaker: Not on the rehearing either?

Mr. Joseph Forer: No.

Justice Hugo L. Black: I wonder if your second complaint was attack on the grounds of the failure to allege in the affidavit.

Mr. Joseph Forer: No.

He -- he -- he raised it on -- with regard to the first complaint.

The -- the District Court ruled against them and he didn't raise it against thereat.

But without going now into further factual details, I would like now, which I will mention when they become appropriate.

I would like now to argue my first point which as basically already been stated by Justice Frankfurter, and that is that the natural -- the judgment of the court below, he stand because it was based on a misrepresentation or concealment, which is not alluded to in the affidavit.

Now in the Zucca case, the Court said that the filing of this affidavit of good cause is a prerequisite through filing and maintaining a denaturalization action, and it has to be filed with the complaint.

And the year or two after Zucca and that was a companion cases, the Court said that this prerequisite what it said in the statute and was so important that you couldn't cure the failure to file an affidavit upon -- with the complaint by amendment, and you couldn't have a late filing and an amendment of the complaint so as to make a valid denaturalization action or a valid denaturalization judgment.

Now, here we have an affidavit, but so far as the ground of denaturalization is concerned and as the case is now before us, the ground of denaturalization.

The ground on which petitioner was denaturalized is the one ground on which the Court of Appeals had.

Insofar as the ground for denaturalization is concerned therefore, we have no affidavits.

Now we do have an affidavit on other grounds, but not an affidavit on the ground on which denaturalization was a decree.

And that seems to me to be the same as having no affidavit at all.

And the matter was virtually anticipated by a sentence in the Court's opinion written by Mr. Justice Harlan in the Nowak case.

And in the Nowak case, the -- one of the issues was whether or not the affidavit of good cause was sufficient, because it wasn't based on personal knowledge, but based on matters seen in the files and records of the immigration service.

And the Court held that that affidavit, even though not based on personal knowledge was sufficient because it said, it fulfilled the general purpose of the affidavit requirement.

And in setting out what these purposes were and how it fulfilled it, the Court's opinion in Nowak said, and I think this was the first thing it said on the subject "In substance, the affidavit set forth the same matters upon which the District Court's later decree of denaturalization was based."

Now then it went on and mentioned other matters.

But the first thing to which the opinion called attention to was that the affidavit matched the judgment.

In this case of course, it doesn't match the judgment.

Justice John M. Harlan: But we had no such issues --

Mr. Joseph Forer: You had no such issue but you have that language and this was part of the ratio decidendi.

Now on principle --

Justice Felix Frankfurter: The Court got jurisdiction on the Communist Party of the case but not on the other (Inaudible).

Mr. Joseph Forer: I beg your pardon.

Justice Felix Frankfurter: You said that if this Court has jurisdiction on the communist issue but not on the arrest issue.

Mr. Joseph Forer: Yes.

Or if it -- it may not be entirely a jurisdictional question, but whether it's jurisdictional or quasi jurisdiction, it was a statutory prerequisite which from there, adjudicating that issue that there'd be the affidavit, and since that prerequisite was not meant, the adjudication of that issue was error.

That's what --

Justice Felix Frankfurter: Well, I should think it makes all the difference in the world whether the requirements, the affidavit sets forth all the grounds where competent determination is a prerequisite to the courts considering the case.

Well -- or whether an affidavit is necessary giving grounds that show good faith and consideration and responsibility, etcetera, etcetera.

And then as it could in other litigations, you can amend your -- your complaint as it were.

Mr. Joseph Forer: Yes, I -- Justice Frankfurter, I think that is the issue and what I'm trying to argue now is that in the light of the -- the holding first in the -- the holding and the was that you can't amend your complaint.

Secure it.

Secondly, in the light of the statement in Nowak, and third, in the light of the purpose of the affidavit which I'm going to come through, it is the first alternative that I think is -- is the one that is the correct one that should be followed.

Justice Felix Frankfurter: I should think the -- your third -- your third inquiry is really the first ones, the crucial one.

This is --

Mr. Joseph Forer: Well, first -- yes.

I -- yes (Voice Overlap).

Well I will just get rid of the precedents before --

Justice Felix Frankfurter: All right, go ahead.

Mr. Joseph Forer: -- I came to the purpose.

And the purpose was stated in the Zucca case.

It said the purpose of the affidavit is to protect the individual that is denaturalized citizen, so that he shall not feel obliged to defend his citizenship and to defend his reputation unless at least the Government first has this probable cause.

In other words, it's a matter of reputation because in Zucca, the Court pointed out that mere -- even the allegation can damage the citizen so that Congress intended that the allegations shouldn't be made without having this showing of just cause.

And the situation you have here is that the petitioner here had its reputation damaged with respect to concealment of arrest, and he have to defend his citizenship with respect to alleged falsification of arrest without this safeguard of the affidavit that the Court in Zucca said was a prerequisite and the purpose of which was to protect the citizen from even having to defend his citizenship and his reputation.

Now the Government says, well after all, he was already suffering because the other two causes of action are sustained by the affidavit.

Now that's like saying that if the Government has a right to give a man one black eye, he has a right to give him two black eyes.

Now because they have a right to do something which injures -- injures the reputation in one respect, that doesn't mean that they have a right to tear away every last strip of his reputation, and because the affidavit gave him a right to make this man defend his reputation insofar as something about communism was concerned that doesn't mean that he had no reputation left and therefore they had a right to put him to the test of defending his reputation and a citizenship so far as falsification of arrest are concerned.

And if the Government is right, what they could in this case have alleged only arrest in the affidavit and confine the litigation entirely to the matters of communism even though they weren't mentioned in the affidavit.

And certainly, that would be under the present environment of very serious blow to his reputation.

And yet, if the Government is right, the safeguard of the affidavit would not be required on that subject.

Or if the Government is right, they can file an arrest on subject A, let us say concealment of arrest, let us say concealment of the number of years in this country and then they go to trial, they don't even litigate the subject in the arrest.

They litigate all kinds of other subjects, some of which maybe very damaging to the man's reputation.

So it is my position that if you are to give the affidavit, the function which it was intended and are to serve its purpose, then you have to confine the litigation to the ground in the litigation as the Court's opinion in Nowak recognized.

And now I want to come to the next point of my argument which maybe described as the materiality point.

Now the petitioner here in the denaturalization proceeding did say that he had never been arrested and as to this, there's no problem because on one of the forms, he answered “No” when he was asked that he's never been arrested or charged of violation of any law.

And there's no question but that the evidence demonstrates that in fact, he's been arrested three times all in New Haven, Connecticut.

In all three arrests occurring, 10 to 11 years prior to his-- the time he filed his application of citizenship.

And I'd like to tell you what these arrests were because the factual situation becomes crucial.

The first arrest was on July 30th, 1929 and this arrest was on a charge that the petitioner had violated a New Haven City Ordinance by distributing handbills on the public street.

The petitioner pleaded not guilty and he was discharged and that's the first arrest in this disposition.

Incidentally, the text to the ordinance, under which this -- he was arrested in which the warrant was issued, appears on the record at pages 69 and 70.

The Court of Appeals was mistaken when they make the observation of their opinion that the text of this and the second ordinance was not before the trial court.

In fact, the text of the two ordinances because this one would be -- what I'll mention next were introduced as government exhibit without any opposition or objection by the petitioner.

So as I say that was the first arrest.

Needless to say, I think it's quite obvious you look at the ordinance and look at the charge by the way that in the light of Jamison against Texas subsequent cases, this New Haven ordinance was unconstitutional.

The second arrest occurred on December 21st, 1929.

Justice Charles E. Whittaker: This is an important (Inaudible) where they're not viewed, the arrest or wasn't (Inaudible)?

Mr. Joseph Forer: I don't think it's particularly important.

I don't think so.

But for whatever bearing it has, the ordinance was plainly a violation of the First Amendment at least with the hindsight of the Supreme Court decision to decide it afterward.

On December 21st, 1929 which was also more than 10 years before the petitioner applied for his naturalization, he was arrested on the charge that he had violated the New Haven park regulations by making, and I'd better quote this, “an oration, harangue, or other public demonstration in New Haven Green, outside of the churches.”

The -- this -- he pleaded not guilty to this offense and the disposition is unclear in the record as everybody admits including the Court of Appeal and so I don't know whether he was convicted or not convicted or acquitted or what happened.

I don't think it's important.

I would mention that the maximum fine under this ordinance, in fact, the only penalty under the ordinance was applied now with fine.

And I might say it's also clear that this ordinance was unconstitutional because it said that nobody should be allowed to make an oration, harangue, or other public demonstration in the Green and outside of the churches that is, unless he got special authority the Commissioner has gave no standards for the Commission to exercise.

So under Crook (ph) against New York, decided some years later, that was under unconstitutional.

The third arrest also occurred more than 10 years before the application and that occurred on March 11, 1930 and that arrest was on a complaint issued by the New Haven City Attorney which charged that the petitioner committed general breach of the peace and that's all it said.

It didn't say wherein he committed a general breach of the peace and I suppose one might claim that it wasn't sufficient.

They definitely state any kind of cause of action.

Anyway, the petitioner here pleaded not guilty.

First, he filed the demurrer which was overruled by Whittaker, Jay but he was convicted after that demurrer was overruled.

He was convicted by the city court and was found to -- found guilty and fined $25 and he appealed that to the county court which made it a -- a trial de novo and on appeal the case was null so that the ultimate disposition of that case was also -- no conviction.

So those are the three arrests, 10 or to 11 years of prior to the application of citizenship, all of them of the utmost trivial charges nothing involving the moral turpitude or anything like that, none of it resulting in convictions with the possible exception of the one in which he might have been fined $5 and that two of them on obviously unconstitutional orders.

And the question arises whether concealment of this tribute justifies denaturalization.

Now, the Government recognizes that a -- and admits that you can only denaturalize for a material concealment or misrepresentation.

Justice Potter Stewart: Could I ask you a question, is there any issue before us as to whether or not, with a lack of time, otherwise this man was in good faith.

Good faith, forgotten about these arrests, is there any issue of that claim?

Mr. Joseph Forer: Well there's just no evidence on that one way or another and the Court found that it wasn't in good faith.

Justice Potter Stewart: You're not arguing that obviously.

Mr. Joseph Forer: And I didn't raise that in my petition.

As far as I'm concerned, I don't -- my argument applies no matter what is bad faith was.I accept it.

I mean I'm just not -- I'm not claiming that.

Now the Government says you'll have to suppress a material of fact or not only of material concealment or misrepresentation to justify denaturalization and then they start examining and analyzing the meaning of the word material in the light of case law and judicial definitions and public policy and whatever are the considerations that the courts has taken to account in determining what a concept or a word means.

And they end up that -- frankly, I don't know what they think material mean.

My approach is entirely different because I say it isn't a question of the case law or definition of the word material.

I say that if you must use it, the technique -- the issue in terms of materiality which maybe a little misleading, I say that the statute has a built-in definition of materiality and this is my approach.

If you look at these statutes, it doesn't authorize denaturalization on account of any concealment or misrepresentation.

It only authorizes denaturalization in cases where the naturalization was procured by concealment or misrepresentation.

So under the statute, the test of materiality is, did the falsification or suppression procure the naturalization.

If it didn't procure the naturalization then it doesn't make any difference how material it maybe in terms of case law in other field, it has nothing to do with the statute and it doesn't authorize denaturalization.

And when you say that the falsification or suppression must have procured denaturalization, what you are saying is that the test of materiality is -- did the falsification make the difference between getting denaturalization and not getting denaturalization.

If it wouldn't have made difference, if the true facts had been revealed then obviously the suppression of the true facts did not procure the naturalization.

So how do you apply this test that I'm saying, the test of did the falsification procure the naturalization?

The first thing you have to do is to look at what where the conditions for naturalization at the time of naturalization?

In this case, you would look at the 1906 Act and see what the requirements and conditions were for naturalization and then you have to ask yourself two questions.

First, would the facts which were suppressed have in themselves justify the naturalizing court in denying naturalization?

If they did, then obviously by suppressing those facts, the applicant for naturalization procured naturalization by this fraud and you can end the inquiry there, and an example would be where if the naturalization statue require five years residence and the applicant said, “Well, I've lived here five years”, in fact, he'd only lived there four, obviously, that falsification procured denaturalization.

But you don't stop there because -- let's assume a situation like here for instance where the facts which were suppressed would not in themselves have justify denaturalization.

Nevertheless, the suppression might have procured denaturalization if the true facts had they been disclosed, would have led to discovery of other facts which would have resulted in just or which would have justified the naturalizing court in denying the naturalization.

Thank you.

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Argument of Joseph Forer

Chief Justice Earl Warren: Mr. Forer, you may proceed.

Mr. Joseph Forer: Thank you, Mr. Chief Justice, Your Honor.

I was saying at the recess that in order to meet the statutory requirement, that a suppression had procured denaturalization.

It follows as logically and inevitably that you have to show one of two things.

Either that the true facts, if disclosed, within themselves have justified the naturalizing court in denying naturalization under the then applicable standards of naturalization or two, that the true facts, if disclosed, would have led to the discovery of other facts, which if known, would have justified the naturalizing court in denying naturalization.

Now, if I'm right and this becomes a crucial issue, then you can't say that a person shall be denaturalized because the suppressed facts, which if disclosed, might have or would have led to an investigation.

Because if I am right, you'll also have to then go on and show that the investigation would have discovered facts which would have justify denaturalization or which you have justified a refusal of naturalization.

If the investigation would have been fruitless, in the sense that it would not have discovered anything to the man's discredit or would not have discovered anything that would have justified denial of naturalization, then the investigation has nothing to do with whether he got naturalization or didn't get naturalization, it therefore has no bearing on whether or not denaturalization was procured by the misrepresentation.

And I -- I think if we will see, that is the principal issue between my position and the opposition of the court below.

And I think my position follows, not only from the language of the statute which says that you can denaturalize only if naturalization was procured by the suppression, but it also follows from the principle which this Court has repeatedly announced, which is in substance that in a denaturalization case, the defendant, denaturalized citizen is given every possible benefit, both on the facts and on the law.

And I think that's particularly important, in view of the fact that there seems to be no statute of limitations and no rule of laches so as to prevent the Government from bringing stale cases many years after naturalization was obtained.

Now, I think it is apparent that if my test of materiality, which I think is the statutory test, is applied to this case, then the -- the judgment below was wrong in holding that the petitioner was rightly denaturalized on the arrest ground.

If you'll look at the statute which set the rules at the time of naturalization, namely the 1906 Naturalization Act, there was only one ground which had any possible relevance to the subject of arrest.

And that was the requirement of the statute that before an alien could be naturalized, he had to be -- be a person who had behaved for the five preceding years as a person of -- of good moral character and attached to the Constitution.

Now, it is perfectly clear that if you use the first branch of my test, that if these arrests had been disclosed, they would not have justified the naturalizing court in holding that the then alien did not meet the requirement of five years good character.

First of all, the arrests were remote.

They were 10 years before the petition not within the five-year period.

Secondly, they had no application to a man's character anyway, since they were for trivial offenses, did not result in convictions and at least two of them were -- were unconstitutional offenses.

And the Court of Appeals did not claim and did not hold that the arrest, if they had been divulged, would have justified the denial of naturalization.

So, I think we can -- I can get safely pass the first prong of my test of materiality.

This leads to the next -- the next branch of my test, and that is, did the suppression of the arrest result in suppressing facts, which if known or if discovered, would have other facts, which if discovered, would have justified the denial of naturalization.

Now, in the first place, the Court of Appeals didn't claim that that was the situation either.

The Court of Appeals said, in their opinion and it's perfectly clear, and this is at pages 95 and 96 of the record.

The Court of Appeals said the only thing that mattered was that the falsification blocked an investigation and it didn't make any difference, what the investigation would have discovered.

And it didn't make any difference that if the investigation had been held, nevertheless, naturalization might have been granted.

Now, for the reasons I've already gone into, that seems to be clearly wrong.

So, let's come now to a -- to apply the correct test, which is, would the investigation have disclosed a disqualifying factor to the facts.

The only testimony in the record on this subject was offered by the Government's witness, the hearing examiner, the -- for the Immigration and Naturalization Service, a man by the name of Derringer, and I quote this testimony in full, beginning at the bottom of page 17 and running on to page 18 of my brief.

And Derringer testified that if a person had an arrest record, an investigation would follow but he testified that the only thing the investigation would do, would be to verify the facts concerning the arrest.

And that's what he said, would be just to check whether or not the listing of arrest, for instance, had been accurate and complete.

So, if you take Derringer's testimony, if the petitioner had disclosed his arrest record or if you take Derringer's testimony, the only thing an investigation would have disclosed is the identicals matter concerning the arrest that we know now and then it's now in the record.

And as I've already said, obviously, those trivia in themselves would have not had justified refusal of naturalization and the court below recognize that they would not have justified refusal of naturalization.

So on Derringer's testimony and that is the only testimony there is in the record, there is nothing to -- Derringer's testimony negatized and there's no other testimony for the contrary, any assumption that an investigation would have discovered any disqualifying fact.

And when you consider that the Government has the burden in a denaturalization case, approving all essential parts of each case by clear, unequivocal and convincing evidence which does not lead the issue in doubt, then it is perfectly clear that if the Government, as I say it had, had the burden of showing that there was a dena -- disqualifying fact in the background, which an investigation would have led to, then the Government has not carried that burden because the only testimony in the record is to the contrary.

Now, the Government, in its brief, now subs -- tries to substitute a complete speculation for proof.

They say that at the time of these arrests, 1929 and 1930, they say that the record shows that at or about that time, the petitioner was a district organizer for the Communist Party in Connecticut.

And they say, well, it seems we -- it seems likely or it can be assumed that if the Service have had the information about the arrest, it would have investigated the arrest and presumably the arrest would might have had something to do with his activities as an official of the Communist Party, and then the Service would have discovered from the arrest that he was therefore a -- had been a district organizer for the Communist Party and this might have led to a denial of naturalization.

Now, there are about four things wrong with that argument.

The first argument is that it is a complete speculation, which can't possibly meet the test for denaturalization, which has been repeatedly announced by the Court.

It not only has no evidence to support it, it is a speculation and direct contradiction to the testimony of Derringer.

In the second place, there is no competent evidence in this record, that at the period of the arrest, the petitioner was a member of the Communist Party or was a district organizer in -- for the Communist Party in Connecticut.

There is incompetent evidence on that subject in the record, consisting of some hearsay testimony by John Lautner, the Government's perennial witness and of some articles in the Daily Worker.

But I don't even -- but I don't think that's the important fact because even if you accepted the hearsay testimony as establishing membership in the Communist Party at this period, nevertheless, there is nothing in record to show that the arrest had anything to do with the Communist Party or that the investigation of the arrest would've led to anything to that sort.

And I may also say that, as a matter of fact, membership in the Communist Party at that time would've been irrelevant anyway for a large number of reasons.

One reason is that it was 10 years before the petition for application and not within the five-year period.

The other reason is, and under the 1906 Act, that Communists were not barred from naturalization nor for that matter were persons belonging to organizations advocating the overthrow of the Government by force and violence.

And Schneiderman, for example, was naturalized under the 1906 Act and this Court held in the Schneiderman case that -- that didn't seem to be anything wrong with that.

Now, in my original brief, I said nothing about or made no argument about the two grounds of denaturalization other than the arrest ground, namely the -- what I've called the "Communist Party ground" and what I've called the "attachment ground."

And the reason I didn't argue those two grounds was because the Court of Appeals hadn't discussed them and said that it didn't have to consider them.

And I assume as I said in the footnote in my brief, that under those circumstances, if this Court thought that I was right on either of my -- either of the points that I raised so that the judgment was wrong, so far as the arrests were concerned, that the Court would follow the normal practice of remanding the case to the Court of Appeals to dispose off and decide the remaining issues, namely, the Communist and attachment ground.

In its brief, the Government alleged as an independent ground for sustaining the judgment below, that there had been a misrepresentation as to membership in the Communist Party.

The Government didn't allege what I call the "third ground" as an independent ground.

They didn't talk about the "attachment ground" but they urged the Court to affirm the judgment below even if the court below is wrong on the arrest, on the grounds that there had been a misrepresentation as the Communist Party membership.

And the assumption in the Government's brief is, that it -- the Court ought to do this even though it's an exception to its usual remand practice because there isn't any factual issue or no real dispute on the facts and it's just the question of law.

So in my reply brief, I took up this question.

Now, as far as I'm concerned, this issue has to be decided and it's up to the Court whether the Court wants to decide it or whether it wants to send it back to the Court of Appeals to decide it.

That is it has to be decided if -- if I am right on either of my first big point.

And I wouldn't presume to tell the Court whether it should decide it or whether it shouldn't waste its time and let the Court of Appeals decide it.

But since the issue was raised in my reply brief, I did analyze the record.

I analyzed the facts and I think I showed that there -- not only is there a factual question but that the only correct resolution of the factual question is that the petitioner did not, did not lie on the subject of Communist Party membership, or that the Government did not prove that there had been any misrepresentation or suppression on that issue.

This depends on -- on rather complicated and involved state of facts.

In addition to that, I went on and said that the subject was not -- was not a material subject within my definition in any event under the 1906 Act.

Now, for present purposes, since I don't know whether the Government still adheres for its position, that there basically is no factual dispute.

I would like to, unless the Court appeals otherwise, reserve any possible discussion on the suppression as to or alleged suppression as to Communist Party membership until after the Government's argument.

And for that reason, I will reserve the remainder of my time.

Chief Justice Earl Warren: You may.

Mr. Joseph Forer: Thank you Sir.

Chief Justice Earl Warren: Mr. Roberts.

Argument of Maurice A. Roberts

Mr. Maurice A. Roberts: Mr. Chief Justice, may it please the Court.

Perhaps at the outset, I should clarify the Government's position with respect to the question which counsel for petitioner just raised.

When we filed our brief in this Court, we had supposed that the fact findings below with respect to the petitioner's membership in the Communist Party at the time of his naturalization were not questions.

For the reasons that we stated in our brief on the merits, we felt that there was no dispute as to the evidence and we feel we were justified in taking that position but it seems now that we were wrong.

Petitioner does dispute the evidence underlying the District Court's fact findings.

Under the circumstances, we feel we cannot ask this Court to decide these factual questions on a very large record without the sifting process in the Ninth Circuit, and without having that particular issue briefed.

I might point out that the adequacy of the evidence in this regard, was not raised, or briefed, or argued in the Ninth Circuit.

And it is for that reason that we assumed that there was solely a question of law with respect to the Communist Party concealment which this Court could determine and could affirm on the basis of the facts found below.

Now, turning to the specific issues, I'd like to add one further word though.

Chief Justice Earl Warren: By that --

Mr. Maurice A. Roberts: If --

Chief Justice Earl Warren: -- by that do you mean, to -- I believe that there should be a remand, Mr. Roberts?

Mr. Maurice A. Roberts: If -- if we are incorrect in our view that the judgment is sustained by the arrest concealment then the only basis left would be the Communist concealment.

And since questions of fact are raised with respect to that, then we feel that this Court might wish to remand rather than plowing through this record initially.

I'd like to point this out though.

Chief Justice Earl Warren: May I ask also if there is a remand, what court should remand, remain?

Mr. Maurice A. Roberts: Well, I think that would go to the Ninth Circuit.

Chief Justice Earl Warren: To the Circuit Court?

Mr. Maurice A. Roberts: That's right because it was that Court which, free to admit it, this issue.

I -- I must point this out though.

These questions were not specified as errors in the Ninth Circuit.

I don't know whether the Ninth Circuit would consider them open and if the Ninth Circuit should be disposed to consider this, perhaps we might want to brief the matter in the light of these objections which are now raised it seems to us for the first time, but denaturalization is important.

And if there are questions with respect to the evidentiary basis for the findings, we -- we receive from our request that there be an affirmance on the alternative basis for judgment because evidently, we were wrong when we assumed that -- that petitioner conceded the fact as found by the District Court.

Justice Felix Frankfurter: Well, do you think that why judicial administrations to this Court remand the case to the Court of Appeals or the Ninth Circuit for them to decide whether questions are open for them to consider and have them, if they say, they're not open, shut it off?

Mr. Maurice A. Roberts: No, as a matter of fact --

Justice Felix Frankfurter: I mean you had an official campaign with this idea.

Mr. Maurice A. Roberts: I can only --

Justice Felix Frankfurter: Only to decide what's the -- at least to whether they should decide.

Mr. Maurice A. Roberts: I can only say, as counsel said that we cannot tell this Court or ask this Court to decide a question of substantiality of evidence on a large record.

That -- that's a matter entirely for this Court.

Now, it's true that this Court does review the evidence in denaturalization cases and ordinarily, it does so after the facts have been sifted by the two lower courts.

I don't know what to tell this Court in that respect.

Justice Felix Frankfurter: Nearly meant to stay, I don't mean to imply that it wouldn't be wise -- it would be wise, inappropriate circumstance for this Court to have the Court of Appeals -- a Court of Appeals to deny the record on the fact.

I would wrestle myself to (Inaudible) inadvisable where this Court send the case back for examination on the fact if the Court of Appeals should think it -- it's free to examine the fact.

That doesn't seem to be very sceptical.

Mr. Maurice A. Roberts: Well I -- I cannot tell what the reaction of the Ninth Circuit would be, I think that its rules were not complied with but of course the Ninth Circuit might still consider this factual question.

I just can't tell.

It is, may I say this.

This is to remain only --

Justice Felix Frankfurter: (Inaudible)

Mr. Maurice A. Roberts: This question arose only because we had assumed in our brief that the issue had not been raised, that only a legal issue was decided or was -- was proffered to the Ninth Circuit for decision.

And that, that legal issue had been free to admit it.

Justice William J. Brennan: Let me see if I get this clearly Mr. Roberts.

You're speaking now that your second point in your brief, the judgment is independently sustained by the force (Inaudible) who are Communist Party membership.

Mr. Maurice A. Roberts: Yes, sir.

Justice William J. Brennan: Now, is it your point that no question to the sufficiency of the evidence, no point was made of the alleged insufficiency of the evidence?

Mr. Maurice A. Roberts: Yes, sir.

Justice William J. Brennan: In the Court of Appeals, is that it?

Mr. Maurice A. Roberts: Yes sir.

Justice William J. Brennan: And for which reason you think if we send it back to the Court of Appeals, if petition prevails on the other point, the Court of Appeals may say, "No, you can't be heard now.

You didn't raise it in your last year."

Is that it?

Mr. Maurice A. Roberts: I felt I had to raise that possibility.

Justice Charles E. Whittaker: (Inaudible) that is actually, the Court of Appeals will decide the issue, if not available of making that (Inaudible)

Mr. Maurice A. Roberts: There would be a little point in remanding to the District Court because the District Court has already considered the adequacy of the evidence and has found it to be ample to sustain its findings.

Justice Charles E. Whittaker: (Inaudible)

Mr. Maurice A. Roberts: That is true, Your Honor.

Justice Charles E. Whittaker: (Inaudible)

Mr. Maurice A. Roberts: That -- that I do not know.

As an alternative, this Court could consider the adequacy of the evidence on its own and of course this Court does in denaturalization cases review the adequacy of evidence.

We -- we don't say that it should necessarily.

It is an avenue that is open to this Court notwithstanding the fact that this was not raised below.

Justice Hugo L. Black: Well, that of course if (Inaudible) there's a real substantial question raised as to whether the man was in convicted without enough evidence.

We would have authority would you not under the statute which gives us the right, suppose to the case that justice may require.

Mr. Maurice A. Roberts: Oh, yes.

Justice Hugo L. Black: Send it back to the Court of Appeals to pass on the sufficiency of the evidence.

Mr. Maurice A. Roberts: Yes, sir.

I think this Court can notice errors which were not urged below or were not called to the attention of the Court of Appeals.

Justice Hugo L. Black: You're not insisting its claim of privilege?

Mr. Maurice A. Roberts: Well, we don't think that the claim is supportive but it is not frivolous.

I mean the petitioner can argue the point.

It's a matter of how you evaluate the evidence in this large record.

Summarizing briefly the issues before this Court, the District Court found as fact but that at the time the petitioner filed his petition for naturalization in 1940, he concealed and misrepresented the fact that, as the District Court found, since 1929 at least, he had been a member, officer and full time functionary of the Communist Party.

And the District Court found that he had been a member of the Communist Party at the time he petitioned for naturalization.

The District Court also found that he had misrepresented and concealed his arrest record back in 1929 and 1930.

And the District Court found that as a result of these misrepresentations and concealments, the Government has been precluded from making an adequate investigation of the petitioner's qualifications for naturalization.

And that as a result, the naturalization examiners had recommended that his petition be granted and that the Court had granted the petition, the naturalization court, without these items having been adequately sifted.

The Court --

Justice Hugo L. Black: Has he been convicted of an anything, (Voice Overlap) directly?

Mr. Maurice A. Roberts: There is some question.

The record indicates that he had been convicted on the third charge, the breach of peace.

He evidently took an appeal and there was a trial de novo under the practice in Connecticut.In the --

Justice Hugo L. Black: What happened, what happened to (Voice Overlap) --

Mr. Maurice A. Roberts: The -- a new information was filed and a nolle prosequi was entered.

So that in the final analysis, there was no conviction on that charge.

Justice Hugo L. Black: What -- what does the statute provides that the man has not arrested can be denied a naturalization?

Mr. Maurice A. Roberts: No, sir, the statute is --

Justice Hugo L. Black: Inspection of the statute?

I haven't yet seen yet.

Which one are you relying on for the right to answer that question and claim that the amounts for a reason to deny a naturalization?

What statute -- statutory statute?

Mr. Maurice A. Roberts: It was the Act -- the Act 1906 under which this petitioner was naturalized.

Justice Hugo L. Black: So which part of the -- he --

Mr. Maurice A. Roberts: It's --

Justice Hugo L. Black: -- quoted --

Mr. Maurice A. Roberts: Section 4, subdivision 4.

I don't think -- I don't think that is stated in the -- our brief.

But if I may, I have a copy of the statute right here and if I may read --

Justice Hugo L. Black: Read the part on which --

Mr. Maurice A. Roberts: The part, yes, sir.

Justice Hugo L. Black: The part of an argument read.

Mr. Maurice A. Roberts: This -- this is from the Nationality Act of 1906 as amended in 1929 and this was a statute in effect in 1940 when petitioner filed his petition.

Justice Hugo L. Black: What is the United States Code was?

Mr. Maurice A. Roberts: It is in the -- it was 34 Statute 596 as amended by the 1929 Act which is 45 Statutes 1512 and Section 4, read as follows, "No alien shall be admitted to citizenship unless, one, immediately preceding the date of his petition, the alien has resided continuously within the United States for at least five years and within the county where the petitioner resided at the time of filing his petition for at least six months."

Justice Hugo L. Black: There's no contest about that?

Mr. Maurice A. Roberts: No.

No.

Actually, this is the -- the part on which we rely.

During all the periods referred to in this subdivision, he has behaved as a person of good moral character, 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 question of arrests, we feel, is geared to the requirement that the petitioner show good moral character.

Justice Hugo L. Black: What is the Section that's authorized as the department to ask questions which are not legitimate grounds in themselves for denying accusations?

That was I was asking.

I'm -- I'm not familiar with it.

Mr. Maurice A. Roberts: I don't think that's contained in -- in the brief.

If I may give the Court this background perhaps, it might answer your question, Justice Black.

Justice Hugo L. Black: Well, is there anything in it that indicates that the mere arrest of the man?

Mr. Maurice A. Roberts: Oh the -- the statute --

Justice Hugo L. Black: On denying the right to naturalization?

Mr. Maurice A. Roberts: The statute --

Justice Hugo L. Black: Are there any circumstances?

Mr. Maurice A. Roberts: The statute makes no --

Justice Hugo L. Black: -- makes the arrest?

Mr. Maurice A. Roberts: The statute does not mention an arrest as a basis for denial.

The statute does provide for the requirement of good moral character and the rank of --

Justice Hugo L. Black: I assume that you wouldn't claim that an arrest necessarily shows that he didn't have good moral character

Mr. Maurice A. Roberts: Oh, no.

No.

Not necessarily.

Justice Hugo L. Black: As far as (Inaudible)

Mr. Maurice A. Roberts: Oh --

Justice Hugo L. Black: -- just what the basis of --

Mr. Maurice A. Roberts: No.

Justice Hugo L. Black: -- this is?

Mr. Maurice A. Roberts: No.

The -- the question of arrest is merely an element which goes to the petitioner's conduct.

Good moral character is determined by whether the petitioner's conduct measures up to the standards of the community.

It is his conduct which is the criteria and his arrests are merely one of the elements involved in determining what his conduct has been.

Lawless conduct may be considered in determining good moral character.

Justice Hugo L. Black: Could I be presumed in that as everybody else could be presumed to the evidence of (Voice Overlap) --

Mr. Maurice A. Roberts: That -- that is --

Justice Hugo L. Black: -- particulars that he's now been convicted.

Mr. Maurice A. Roberts: That is true but of course since its conduct which is being inquired into, are not the question of whether he has been convicted even an acquittal is not res judicata.

There maybe instances in which an arrest will point to conduct which indicates an absence of good moral character even though there has been no conviction.

In other words, arrests are leads, investigative leads, which are important and the naturalization questionnaire the preliminary form for naturalization in 1929 embodied what had been the practice and this question with respect to arrest was incorporated at that time it has been there since.

In fact, the naturalization regulations since 1929 have required that the question of arrests be thoroughly covered.

If I may, I'd like to read the pertinent part --

Justice Hugo L. Black: Of the regulation.

Mr. Maurice A. Roberts: Of the -- of the regulation.

As they were at the time of this petitioner's petition in 1940.

Justice Hugo L. Black: Is that in your brief?

Mr. Maurice A. Roberts: No, Your Honor.

This is not in the brief.

This is 8 Code of Federal Regulations, 1938 edition Section 70.7.

I shan't read the entire regulation that provides in substance that preliminary examinations of applicants shall be had and the regulation goes on.

The question of possible arrests must be thoroughly covered.

If the applicant has been arrested or charged with the violation of any law or ordinance, all the facts will be ascertained including information as to whether conviction resulted.

In other words, it was not merely the fact of conviction.

It was the fact of arrest which might point to conduct.

I could give this Court examples but I'd like to proceed.

Chief Justice Earl Warren: Well didn't that last language, the last phrase that you used indicate that the -- that the reason for this was to determine that the result within conviction?

Mr. Maurice A. Roberts: No, I think the word including information as to whether conviction --

Justice Hugo L. Black: Oh I --

Mr. Maurice A. Roberts: resulted --

Justice Hugo L. Black: -- I beg your pardon.

Mr. Maurice A. Roberts: Just to give a wholly example, a man might be charged with nonsupport.

He might be acquitted because his wife would prove the charges but yet the facts that he didn't support his wife which were revealed by the -- the arrest might have a bearing on -- on whether he is a person of good moral character.

I mean, these examples could be multiplied.

Justice Hugo L. Black: I presume, I don't suppose they're challenging you but I presume you would agree that the mere fact if they have a right to ask you various questions in connection with denaturalization doesn't mean that such a severe thing to be done if they can say, just take up any little statement he makes to prove to be not correct to bar him from being naturalized.

Mr. Maurice A. Roberts: Bar him from being naturalized or being it --

Justice Hugo L. Black: To authorize his denaturalization.

Mr. Maurice A. Roberts: Well, I think --

Justice Hugo L. Black: I presume there are some bounds or limits to where they can search around and ask questions (Voice Overlap) --

Mr. Maurice A. Roberts: Oh I think -- I think that -- that the questions asked should be relevant to his eligibility for naturalization and there are various eligibility requirements, good moral character and attachments.

And as I propose to develop in the course of my argument, those are ultimate facts which must be found but they depend in the final analysis on developing subsidiary facts.

For example, I don't suppose it can be expected that the requirement of good moral character would be established merely by asking the petitioner, "Are you a person of good moral character?

Or are you attached to the principles of the Constitution?"

and accepting his affirmative response.

The whole history of the nationality laws and their development indicates that when naturalization was an ex parte proceeding in the courts before the Nationality Act of 1960 -- 1906, so many frauds were perpetrated that as a result of a presidential commission's findings, the 1906 Act was enacted with specific provisions requiring a naturalization examination.

The -- the underlying facts are well-developed in this Court's opinion in the (Inaudible) case and so I won't go into the details.

But in the 1906 Act, Congress set up two safeguards against fraud.

First of all, it set up a Bureau of Naturalization to administer the Act and it authorized naturalization examiners.

This was Section 11 of that Act.

It authorized naturalization examiners to appear in court representing the Government and to question the petitioners and to present evidence with respect to the qualifications for citizenship.

That is the first time that this was done.

And then Section 15 of the 1906 Act had another safeguard against fraud.

It set up the ancestor of the present provision authorizing judicial revocation of naturalization which had been fraudulently or illegally obtained.

In fact, this Court pointed out at an early case, I believe it was the Nest case that the naturalization examiners were the ones who, by reason of their expertise, could best be relied upon for determining the qualifications.

But in the final analysis, the qualifications for naturalization must depend on the good faith of the petitioner.

I am now arguing a point that I had hoped to reserve till later but I'll be very happy to proceed this --

Justice Hugo L. Black: No, no, you go ahead.

Go on, it's part of my question.

Mr. Maurice A. Roberts: I -- I was trying to answer your question fully, Mr. Justice Black.

As we see the issues here, they are two.

First, whether the affidavit can support the judgment as affirmed by the Court of Appeals on the arrest point.

Then the second question is whether the concealment of the arrest was material to this petitioner's naturalization.

We have suggested a third point which this Court may wish to consider in the event there is a remand.

That is if we are incorrect in our first two points.

And that is the question which petitioner has raised in his replied brief and which we have discussed somewhat in our brief on the merits as to whether the concealment of Communist Party membership, even if adequately proved, was a material fact under the statute, the 1940 when petitioner was naturalized.

At a later point in my argument, I hope to discuss that if time will permit.

We feel that that is an issue which this Court might wish to determine since it is a legal issue not dependent on fact findings and which would give guidance to the Ninth Circuit in the event of remand or if we are incorrect, might end this litigation.

I shall turn now --

Justice Potter Stewart: Mr. -- Mr. Roberts --

Mr. Maurice A. Roberts: Yes, sir.

Justice Potter Stewart: -- before you proceed, is it any part at all in the Government's theory that the very giving of false answers to the questions with respect to arrest and the very giving of false answers or incomplete answers with respect to the organizations that the petitioner belong to, that those very falsehoods are evidence of his bad moral character?

Being quite apart from the materiality of the information that would have been elicited had he given the truth?

Mr. Maurice A. Roberts: That -- that was one of the grounds for denaturalization found by the court below.

We don't rely on that because there is a question raised in our -- as to the adequacy of the evidence to prove that there was in fact a misrepresentation.

The main thrust of our argument is with respect to the concealment that it concealed material facts with respect to arrest and with respect to Communist Party membership both of which reflected upon his eligibility to naturalization under the standards laid down by the 1906 Act under which he filed his petition.

Chief Justice Earl Warren: Do you concede then Mr. Roberts that the mayor answering of these questions concerning these minor arrests is not sufficient to -- to cause his denaturalization?

Mr. Maurice A. Roberts: No, I cannot be -- concede that --

Chief Justice Earl Warren: Well, then --

Mr. Maurice A. Roberts: -- and on this basis, if I may.

Chief Justice Earl Warren: Yes.

Mr. Maurice A. Roberts: At -- at a later point, I had hoped to discuss the criteria of materiality.

We -- we disagree completely with petitioner as to what the proper criteria are for determining the materiality of a misrepresentation made in a naturalization proceeding.

And I should like to discuss that.

Chief Justice Earl Warren: Would you -- do you --

Mr. Maurice A. Roberts: Yes, sir.

Chief Justice Earl Warren: -- contend that, as Justice Stewart asked you, that the mere failure to state the truth, in respect to some minor arrest of this kind, is in itself sufficient?

Mr. Maurice A. Roberts: Our position is this, that arrests are of material inquiry and that a falsification with arrests with respect to arrests, blocks a relevant line of inquiry at the time when the inquiry should be made.

We cannot tell at this time what would have been shown by an investigation conducted in 1940, when it would have been conducted had the facts been revealed.

One thing we do suggest is that it probably would have disclosed what the District Court found that the petitioner at that time and in fact since the 1920s had been an active member, an officer, a full time functionary of the Communist Party.

But we don't' -- we don't know, I'm sorry.

Chief Justice Earl Warren: Yes, that gets -- it gets a little far afield in the question I was asking.

Let me --

Mr. Maurice A. Roberts: Oh, I'm sorry.

Chief Justice Earl Warren: -- refer to you in a very -- very simple form.

Suppose these arrests instead of being for what they were, were three arrests for parking too close to a fire hydrant and he had answered that he had not been arrested.

Would that -- would that have been sufficient in your judgment just because it was wrong to justify his denaturalization?

Mr. Maurice A. Roberts: I would say this Your honor, that the materiality of any concealment must be judged in the context of the circumstances under which the concealment took place.

If that were all they are worth to it, I'm sure that no judge would deny naturalization.

Chief Justice Earl Warren: Well, they didn't --

Mr. Maurice A. Roberts: But --

Chief Justice Earl Warren: -- question whether a judge would do it or not under the statute.

Is -- is that sufficient grounds?

Mr. Maurice A. Roberts: The statute authorizes denaturalization for concealment or misrepresentation with respect to a material fact.

All arrests are material facts.

They should be disclosed so that the naturalization court which has the ultimate burden of judgment should have them all before it.

Now, our view is that when the Government has established by requisite evidence that a clear question was asked with respect to a material fact such as arrests and an answer that is false has been given, and this answer blocks a line of inquiry that is prima facie material.

Of course, it is open to the petitioner or the defendant to show that notwithstanding this, he had the eligibility requirements and that he would have been naturalized.

But one never knows what might have resulted from an inquiry.

We don't know to this day what a -- an investigation, the 1940 with respect to this petitioner would have shown.

Chief Justice Earl Warren: But I don't know whether I got a yes or no or maybe answer there but -- but I still would like to -- to ask you if -- if under your theory, it would be sufficient to denaturalize this man if he answered that he had not been arrested or in fact he had been arrested two or three times for parking too close to a fire hydrant.

Now, that's a rather simple question.

Mr. Maurice A. Roberts: And if that -- if that were all --

Justice Hugo L. Black: I said it was wrong.

Mr. Maurice A. Roberts: Then -- then [Laughs] I think in that event, it might -- the arrest itself might not have been a basis for denaturalization.

But if he had concealed the arrests, willfully that would reflect on his good moral character.

This may be closed to what Mr. Justice Potter --

Justice William J. Brennan: Well, wasn't that exactly the question that Justice Stewart fits you, wasn't it?

Mr. Maurice A. Roberts: Justice -- it's Justice Stewart, I mean.

Yes.

Yes.

That -- that --

Justice William J. Brennan: Now, your answer is that that would be evidential of a lack of good moral character?

Mr. Maurice A. Roberts: That is right.

Justice William J. Brennan: At the time of his making the false statements.

Mr. Maurice A. Roberts: That's right.

Justice Felix Frankfurter: But not because he lied as I understand you.

As I -- as I understood Justice Stewart's question was whether only a part from the quality of his arrest, what it was that he was arrested for?

If he suppressed disclosure and thereby lied, told an untruth as I understood his question what would not telling the truth with reference to think that might not have precluded his naturalization was the mere non-disclosure effect because it was non-disclosure be a barred to his naturalization?

As I understood you to say at -- at most you were dubious.

Mr. Maurice A. Roberts: Oh, I'm sorry.

I -- I probably did not understand the (Voice Overlap) --

Justice Felix Frankfurter: Now, what about supposing instead of rehashing with somebody else, just full ask you a few question?

Mr. Maurice A. Roberts: Surely.

Justice Felix Frankfurter: There were three -- in this record, they played three grounds for denaturalization as claimed by the Government.

One that he didn't tell the truth about his arrest, two that he didn't disclose his Communist, and three that there is a lack of attachment, is that right?

Mr. Maurice A. Roberts: Yes, sir.

Justice Felix Frankfurter: Now, were all those three grounds urged before the Court of Appeals?

Mr. Maurice A. Roberts: The lack of arrest was -- the lack of attachment was the non-disclosure of Communist Party membership was not specifically urged.

Justice Felix Frankfurter: So -- so that they were only -- specifically was it nebulously urged?

Mr. Maurice A. Roberts: There was a -- a specification.

Justice Felix Frankfurter: Alright.

At all events, the Court of Appeals only went on one ground.

Mr. Maurice A. Roberts: That is right.

Justice Felix Frankfurter: Now, I suppose that ground comes under a cloud, either because of the -- the suppression didn't bar further relevant testimony which might have barred his naturalization or because where they were or wasn't arrested, it was doubtful as that.

Suppose that ground alone doesn't satisfy but rather reject in grating statute which you've laid down in the Schneiderman and what was the other one?

Mr. Maurice A. Roberts: Nowak

Justice Felix Frankfurter: Yes.

Mr. Maurice A. Roberts: Baumgartner.

Justice Felix Frankfurter: What?

Mr. Maurice A. Roberts: Baumgartner.

Justice Felix Frankfurter: Baumgartner.

Now, suppose one reaches the conclusion that the record doesn't sustain -- satisfy what this Court has ruled now and whether it settled doctrine.

The necessary quantum of proof and denaturalization cases, suppose one reaches that conclusion, what then does one do with the case?

Can we go on the other grounds?

We can't do that because non-concept that the Court of Appeals which is the tribunal that in all but there are cases, exceptional cases should have the last say, didn't have the last say on that, that was end up to be a remission to that court wouldn't it?

Mr. Maurice A. Roberts: I think that is so.

I should like to discuss briefly the question of the adequacy of the affidavit.

We suggest in our brief on the merits that this question has been abandoned by the petitioner below.

It wasn't raised in the Court of Appeals and in fact, it seems to have been abandoned even in the District Court because while it was specified in the motion to dismiss the original complaint, it was not included in the subsequent motions to dismiss an amended complaint and a second amended complaint based on the identical affidavit.

In the motions addressed to those two subsequent complaints, the petitioner repeated the identical basis of objection that were incorporated in his original motion, the constitutionality of the denaturalization statute and res judicata.

But in these subsequent motions, he did not repeat the affidavit point.

We feel that this could be taken as an abandonment.

And certainly, the Court of Appeals didn't mention this because the question was not raised in the Court of Appeals.

Under the rules of the Court of Appeals, specificity of error is required.

We feel that this was not an obvious error nor was it an error which otherwise seriously affects the integrity or public reputation of judicial proceedings within the meaning of the cases decided by this Court, where this Court will notice error not pointed to the -- or not brought to the attention of the Court of Appeals.

I should like to turn now to the second question, and that is whether the affidavit is adequate to support the judgment on the basis the Court of Appeals supported it.

Now, this Court pointed out in the (Inaudible) case and in the Nowak case why the affidavit of good clause was required.

It was required to protect a defendant in a denaturalization suit against ill-considered or irresponsible governmental action in instituting such a proceeding.

Therefore, Congress required that there should first be a screening by, I believe, Mr. Justice Harlan's opinion in the Nowak case referred to a responsible official who after reviewing the facts would make an affidavit setting forth the evidentiary matters justifying or showing good cause for denaturalization.

I don't think there's any quarrel with the affidavit filed here insofar as showing good cause is concerned.

It recites essentially the facts which were recited in the complaint with respect to the concealment of the Communist Party membership and the court below that is the District Court found those facts sustained by the evidence.

But petitioner argues that that is not enough, that the affidavit must, in effect, contain all the grounds on which the judgment below is based.

We don't believe that that is so and if I may draw an analogy, I'd like to compare the affidavit of good cause with the requirement that probable cause be shown under the Fourth Amendment to warrant an arrest or search.

As this Court pointed out in the Baumgartner case, the quality of the evidence or the standard for determining the adequacy of a showing of probable cause differs from the evidence which the Government must use to prove a conviction.

And we feel similarly that the evidence which must be shown to satisfy the statutory mandate that there be good cause for denaturalization is not the same as the evidence which the Government must educe to prove a denaturalization case.

Moreover, we feel that the petitioner or any defendant would gain no meaningful protection from such a requirement.

The affidavit when executed is a safeguard against departmental irresponsibility in starting such a proceeding.

The complaint tells the defendant what charges he must defend against.

In combination, they give him an adequate safeguard.

We don't feel that Congress in addition to requiring a showing of good cause intended that the affidavit include everything that the complaint must include, such a reading of the statute would make the affidavit and the complaint almost identical and would render the complaint meaningless.

Now, this Court pointed out in the Schneiderman case that it is to the complaint that the defendant must look to see what he must defend against and the Government may not base a denaturalization decree on a ground not stated in the complaint.

Even though it is stated in the accompanying affidavit, the reverse does not follow.

We feel that there is adequate protection to a defendant in a denaturalization case if there is an affidavit setting forth one good cause for denaturalization.

We do not feel that the statutory mandate is violated if instead of there being one good cause, there turned out to be two.

Now, a petitioner has mentioned the fact that this could be used as a device perhaps for alleging one ground in the affidavit and then abandoning that and using an entirely different ground in the District Court.

That would indicate bad faith and we agree that there should be no bad faith.

But that is not the situation here.

Here, the affidavit set forth good cause for denaturalization and the Government proved that case, the concealment of the Communist Party membership.

In addition, the Government proved a little more but we feel that taking into account the purpose of the affidavit, this affidavit was adequate.

Now, I should like to discuss the question of materiality.

And as I said, we disagree with petitioner in the criteria for determining materiality.

We feel that a misrepresentation in a naturalization case is material if there's a reasonable possibility though not a certainty, that the alien would have been denied naturalization if the truth had been revealed.

It must be remembered that naturalization, although it is a judicial proceeding is not the usual proceeding for the vindication of existing rights, rather it is a proceeding to have granted to the petitioning alien rights which have not yet come into existence.

That was the position this Court pointed out many years ago in Manning versus United States 278 United States 17.

And the burden of proof in a naturalization proceeding is on the petitioning alien.

Any doubt as to whether he may see eligibility requirements must be resolved against him.

The Congress has laid down some specific eligibility requirements and has set up machinery so that the existence of those requirements can be ascertained.

And as I pointed out before, since these requirements very often relate to state of mind, that is what's going on in this petitioner's mind with respect to his attitude toward Government?

In the final analysis whether he has those requirements depends upon his good faith during the course of a naturalization examination preceding his court hearing.

This is underscored by the fact that hundreds of thousands of petitions are filed each year.

As a matter of fact, in fiscal year 1940 when this petition was filed, some 278,000 petitions were filed and there were 201 examiners.

Naturalization is not like a commercial transaction where the parties may deal with one another at arm's length.

The courts have frequently said that the petitioner must deal in good faith with the Government.

In fact, one court said the alien must deal with the utmost good faith toward the Government.

Now, with respect to the question of materiality, some of the elements which Congress has required and which are important, such as attachment to the principles of the Constitution depend for their ascertainment on subsidiary facts.

Attached within good moral character are ultimate conclusory facts.

But from the very beginning of the naturalization process, the naturalization examiners have inquired into certain subsidiary facts to determine the existence of these ultimate findings.

And as I pointed out, the arrest question which is material to good moral character has been in the naturalization, regulations and in the form itself since 1929 even though arrest questions were asked even before that.

The arrest question can also furnish information or leads with respect to other elements of naturalization.

This was -- we feel possible right in this very case.

We feel for example if the petitioner had revealed these arrests minor though they may seem in the context of the times back in 1940, the investigator on checking and finding the nature of the arrests might very well have pursued these leads.

It must be recalled that in 1940, the war had broken out in Europe.

The Stalin-Hitler Pact was of recent memory.

There were numerous inquiries into the extent to which foreign organizations and ideologies were -- in all of the United States, the German-American Bund was being inquired into the Communist Party certainly.

There were various legislative inquiries both on the national and state level into these questions.

The Smith Act and other acts, which seem to have been directed at the Communist Party, were enacted in June 27th -- June 28th, 1940, the very day after this petition was filed.

The -- the question of membership in the Communist Party was being inquired into by the Immigration and Naturalization Service, not only in connection with naturalization petitions but also in connection with deportation possibilities.

So that had the arrests been revealed, the investigator or perhaps even the judge might have been led to inquire -- what were -- what was the nature of the hand-bills which he was charged with distributing and whose behalf where they're being distributed?

What was the nature of the oration or harangue which led to his arrest, assuming that -- that there was such an oration or harangue?

What was the nature of the conduct which led to his arrest for breach of the peace?

All these might do without necessarily inquiring or without the fact that he had been convicted because he wasn't, we assumed.

And in those days outside investigations were authorized by the Immigration and Naturalization Service Regulations.

In other words, reliance was not had solely on the examination by the naturalization examiner.

There was a regulation at that time, I refer to 8 Code of Federal Regulations 1938 Edition 70.9 which required the district directors of naturalization to have naturalization petitions reviewed and further investigations conducted.

We are warranted.

And we feel --

Chief Justice Earl Warren: Is there any thing in the record, Mr. Roberts, about the character of these pamphlets or the character of this harangue?

Mr. Maurice A. Roberts: No, sir.

Chief Justice Earl Warren: There wasn't.

Mr. Maurice A. Roberts: The -- the record is silent on that.

Now, I'm not saying that the Government's case necessarily presents on that with respect to materiality.

All I'm saying is that where -- where there are arrests, the Court is entitled to know about them.

Now --

Chief Justice Earl Warren: I understand it (Voice Overlap) --

Mr. Maurice A. Roberts: Now, when the -- when the inquiry is made, perhaps nothing more will appear and the Court will be satisfied that the -- that the good moral character is shown notwithstanding the arrests.

In fact, notwithstanding conviction sometimes because not all convictions necessarily point to poor moral characters and they feel of the underlying conduct which is the important thing.

All I'm saying is that arrests are material to good moral character and the time to investigate is at the time the petitioner applies for naturalization where he blocks a material inquiry such as this by his misrepresentation then I say that that misrepresentation is material to his naturalization.

I'd like to draw a parallel here between naturalization and some of the other types of inquiries during the course of which misrepresentations are made.

For example, in the course of a judicial inquiry such as a trial or a grand jury inquest, if a full statement is made and that blocks or torts the inquiry or has a tendency to block the inquiry, the full statement is precarious.

There need not be any showing that it would necessarily have altered the result.Counsel has stretched the word "procured" in the present statute.

We feel that bad word does not have a significance, counsel attributes to it.

In the prior statutes, the 1906 Act and the Nationality Act of 1940 which did not come into effect until shortly after this petitioner was naturalized, the denaturalization provision relating to fraud was on the ground of fraud.

The word "procured" was not used with respect to the fraud ground.

I know of no court decision stating that the Government had to prove that naturalization would have been denied had the truth been revealed.

In fact, it is my recollection that the Montalbano case which we cite in our brief and the Corrado case which is cited in our brief were under that statute and they stated quite the contrary that if a relevant line of inquiry -- a material inquiry to arrest his blot then the Government does not have to show that it would have resulted in the denial of naturalization.

I believe that the -- the great majority of the circuits which have considered this question have gone along with that.

Now, the -- the legislative history of the change does not indicate that Congress intended any change in the standards of materiality.

The 1952 Act under which this proceeding was brought was the result of an intensive study by the Subcommittee on immigration of the Judiciary Committee of the Senate.

That study went on for two years and the Subcommittee brought out a report, Senate Report 1515 in the 81st Congress, which analyzed the existing laws and made recommendations for changes which were incorporated in the new bill which became the 1952 Act.

Now, the Subcommittee analyzed the denaturalization provision and pointed out that there had been a couple of courts which had questioned whether denaturalization could behead for intrinsic fraud.

And therefore to obviate any question, they recommended the present language in order to make it a little more explicit.

There was no suggestion that the word "procured" was to have any particular significance.

As a matter of fact in the same 1952 Act, there was a parallel provision in the deportation section.

Section 212 (a) (19) of the 1952 Act has a provision authorizing the exclusion and consequent deportation of any alien who has procured a visa or other document by willful misrepresentation of a material fact.

Now, in the cases which deal with deportation with the materiality of a misrepresentation, we find that the same standard for which we contend is applied.

As a matter of fact, in the (Inaudible) case which was decided in the Southern District of New York and affirmed by the Second Circuit on the language -- on the opinion I should say of Judge Dimmick there and that -- in which this Court denied certiorari last Monday.

The Court sent forth a very good reason for this.

A decision that an alien may make a full statement in his application for a visa, we could substitute for naturalization.

In order to avoid the raising of a substantial question as to his eligibility and then if he is caught in the full statement after having successfully trumped off investigation may try out his eligibility just as if nothing had happened would it seems to me be an invitation to full swearing.

There are also additional reasons why we feel that the same standard should apply with respect to the materiality of naturalization falsifications as applied to the falsifications in the course of other governmental inquiries.

The First Circuit in the case of Landen v. Clark stated this so well that I'd like to quote it.

In that case, the First Circuit reversed the District Court, which had held that the Government must show that the visa would have to be denied in order to show materiality.

Unknown Speaker: (Inaudible)

Mr. Maurice A. Roberts: The First Circuit pointed out that this would involve the Courts in the realm of conjecture and speculation in trying to make a decision only the proper authorities could have capably made.

I see that my time --

Justice John M. Harlan: Do you think -- can I ask you a question?

Mr. Maurice A. Roberts: Sure.

Justice John M. Harlan: Do you think it's incumbent on the Government to make any showing materiality?

Mr. Maurice A. Roberts: I think materiality is a question of law which must be determined in each case upon the fact of the particular case.

I think it's incumbent on the Government to prove by clear convincing an equivocal evidence that the misrepresentation alleged took place, in other words that there was a clear question asked and a full statement given and that -- that misrepresentation blocked.

Justice Felix Frankfurter: Well, that doesn't bear on materiality that bears on whether you can say that there was a misrepresentation because if the question is validly or dubious or ambiguous then the answer necessarily must be ambiguous, but the question that Justice Harlan asked to the discipline.

Mr. Maurice A. Roberts: I think that --

Justice Felix Frankfurter: That we -- in order, that we supposed a clear question, not a two phasing -- two phasing questions on a two phasing answer.

Mr. Maurice A. Roberts: I think that --

Justice John M. Harlan: Let me put my question (Inaudible)

Mr. Maurice A. Roberts: Sure.

Justice John M. Harlan: Do you think that the Government makes out a case simply by showing that an arrest question was asked -- answered falsely?

Mr. Maurice A. Roberts: I think -- I think that -- that prima facie is materiality.

Justice John M. Harlan: Does that make your case?

Mr. Maurice A. Roberts: I think so.

I think that under those circumstances, the person who has misrepresented should come forward and show if he can that notwithstanding his misrepresentation, he still possess the eligibility requirements for naturalization and that might be that --

Justice John M. Harlan: Then the nature -- the nature of the crime for which the arrest took place by the crime which the arrest took place, the nature would be other evidence as to possible grounds of deport -- deportability or denaturalization would make no difference.

Mr. Maurice A. Roberts: Oh, I don't think so.

I don't -- I don't think these questions can be determined in a vacuum.

I think all the circumstances must be taken into account.

I think that on the facts of this case among the evidence before this Court, that -- that suppression was material and as I said before --

Justice Felix Frankfurter: If your argument (Inaudible) -- if your argument is that if a person is arrested even for parking at the wrong place, would that short -- shut off inquiring that may open up relevant material considerations for the denial of the denaturalization may open up --

Mr. Maurice A. Roberts: That's right.

Justice Felix Frankfurter: For the man may park at the wrong place for very serious reasons.

Mr. Maurice A. Roberts: Exactly.

Justice Felix Frankfurter: And therefore, your argument in the cases, it was a good deal that you block the use, where do you use that (Inaudible) whether it blocks the inquiry, I don't see how -- why the District Court should enter upon entirely whether they did or didn't block.

How could you tell five years later (Voice Overlap) --

Mr. Maurice A. Roberts: Exactly, that is a nutshell.

I'm not sure I didn't express it that way but that -- that is so.

Chief Justice Earl Warren: Well, then you -- you get back to the question I -- I asked you if a -- if a man made a false statement as to one part in particular, too close to a fire hydrant, do you believe that it would be a permissible interpretation to this act to say that it could be denaturalized for that statement?

Mr. Maurice A. Roberts: Purely theoretically.

Chief Justice Earl Warren: Well, I suppose we're talking about.

Mr. Maurice A. Roberts: Yes.

I -- I can say that no denaturalization proceeding would be instituted if that were the only fact.

The Government does not institute these proceedings merely because a prima facie case can be made up.

Chief Justice Earl Warren: Well, I -- I just want to know, I thought Justice Harlan want to know if -- if any false statement would be sufficient in your opinion to -- to do it under the law.

Mr. Maurice A. Roberts: Yes, and willful full statement.

Chief Justice Earl Warren: Yes, yes.

Mr. Maurice A. Roberts: We'd -- we'd want to know of course won't the --

Chief Justice Earl Warren: (Voice Overlap) forgot it to be a different thing.

Mr. Maurice A. Roberts: That's right.

Chief Justice Earl Warren: I'm talking about it (Inaudible)

Mr. Maurice A. Roberts: But a willful full statement might always conceal something else.

It -- it might lead to other things which could show that it should be denaturalized.

Justice John M. Harlan: And then you're really standing on a per se rule of materiality sort of come (Inaudible)

Mr. Maurice A. Roberts: Per se I would say that --

Justice John M. Harlan: Once you've shown in a full statement, a willful full statement which is where this record must be taken here.

That's enough to make out your prima facie case.

Mr. Maurice A. Roberts: With respect to materiality?

Justice John M. Harlan: Yes.

Mr. Maurice A. Roberts: Yes, yes.

Then I think the burden is on the --

Justice Hugo L. Black: You're eliminating materiality (Inaudible)

Mr. Maurice A. Roberts: I beg your pardon.

Justice Hugo L. Black: -- materiality by that, do you not or does it -- does it?

Mr. Maurice A. Roberts: No.

I don't think materiality is eliminated because the door is always open to the defendant to come in and show that actually notwithstanding this parking ticket or these other arrests.

He, in fact, had the qualifications and could have been admitted.

But that of course depends upon the nature of the inquiry in the naturalization court and that is where the inquiry should be made.

Justice Hugo L. Black: What you're saying is that he could show that it was not material.

They couldn't revoke his citizenship?

Mr. Maurice A. Roberts: I think so.

I think if --

Justice Hugo L. Black: Then what you're saying in effect fact is that the burden is not on the Government to reach necessary allegation on all this charge and all this particular institution (Inaudible)

Mr. Maurice A. Roberts: No, I would not suggest that, Your Honor.

I would suggest that the Government has the burden of showing materiality but that materiality is a -- a legal conclusion which depends upon all the facts of the case.

If the misstatement blocks or chokes off or torts a relevant line of inquiry, then it is prima facie material.

But I think that that door is open to the defendant to come in and show something else.

And on the sum of all the evidence, after it is all in, the denaturalization court might conclude that this prima facie case of materiality has been thrown out.

Justice Hugo L. Black: Are you're saying in effect, as I see it is that -- and maybe you're right here that impede the Court infatuated, it may keep it from getting evidence.

It could use to prove or genuine ground of denaturalization is itself made an independent ground by this particular section to the Court.

Mr. Maurice A. Roberts: I think that impeding the Court with respect to any relevant item which the Court has a right to inquire into and itself --

Justice Hugo L. Black: (Voice Overlap) automatically to a justifiable.

Mr. Maurice A. Roberts: In itself is material as a prima facie matter.

Justice Felix Frankfurter: Before you sit down, may I ask you --

Mr. Maurice A. Roberts: Sure.

Justice Felix Frankfurter: -- refer discussing hypothetical situations, what would you say with the decision of the Court of Appeals in this case on -- on the basis of what did it sustained the de -- denaturalization between it?

Mr. Maurice A. Roberts: I think its decision was based on the issue presented and that is whether the findings of the District Court were adequate to sustain the conclusion that there was a material misrepresentation with respect to arrest.

That was the sole basis of decision.

Justice Felix Frankfurter: And that was all arrest, but they didn't -- Judge Maris didn't go into what kind of arrest to conceal, did he?

Mr. Maurice A. Roberts: No.

Justice Felix Frankfurter: Or their importance?

Mr. Maurice A. Roberts: No.

Justice Felix Frankfurter: Or their -- for their potential disqualifications or what it might lead to you?

Mr. Maurice A. Roberts: No.

No.

Judge Maris adhered --

Justice Felix Frankfurter: Because there were three -- he was asked, "Are you arrested?"

And said no.

In truth and in fact, he knowing suppressed of fact that there had been (Inaudible)

Isn't that all?

Isn't that the decision of the case?

Mr. Maurice A. Roberts: That -- that in a nutshell is the decision of the Court.

Justice Hugo L. Black: Suppose, the Court -- I'm just asking of curiosity.

I don't know whether it's ever been raised and not eventually yesterday.

Suppose this denaturalization quote that says that I am satisfied that he blocked the investigation at the time he was being naturalized.

It might have been able to show if they had a bad character but didn't show it.

The case is still here.

I can revoke the judgment in his favor but I'm going on with it and to see whether or not he's entitled to become a (Inaudible)

Does that ever occur?

Mr. Maurice A. Roberts: I don't think --

Justice Hugo L. Black: I'm not sure it occurred.

Mr. Maurice A. Roberts: I don't think it does.

There have been some decisions where the District Courts have said, well, it's true that this happened many years ago but the Government hasn't shown that in recent years he's been have poor moral character.

In fact, all the evidences to the contrary if he were petitioning today, he could probably show eligibility.

There'd be no point in denaturalizing.

I may add that that is one of the criteria which the department considers before it authorizes a suit.

There was no --

Justice Hugo L. Black: There was rather claim as I see it.

The reason I asked the question, I suppose that the -- thing that he's charged with here based to this judgment, is that he made a false statement about -- statement about arrest and then that would not have been enough -- those arrests would not have been enough alone.

It did not to take citizenship away.

I understand you to put it on the basis.

Attempt might show a bad character but that's one on the other ground.

Is there any question to ask whether that action since it was not enough to bar him that this might be simply setting aside the judgment that was rendered it is a judgment?

Mr. Maurice A. Roberts: Naturalization is a judgment.

Justice Hugo L. Black: Setting aside the judgment and that left the matter to be determined, is to what had happened (Inaudible) and the man could insist that even with that there was not enough to denaturalized?

Mr. Maurice A. Roberts: Oh, I think -- I think he could have.

The -- the defendant in this case wouldn't take the stand.

He -- he made no -- he made no showing whatsoever.

Justice Felix Frankfurter: Well I thought the District -- I thought the District Court found other ground which should have followed the close result in naturalization.

Mr. Maurice A. Roberts: Oh, perhaps -- perhaps I misunderstood the import of -- of your question Mr. Justice Black.

I -- I was confiding myself --

Justice Hugo L. Black: I was going on, on the basis that they are not here and that they might be decided in the other man's burden.

That's right.

Justice Felix Frankfurter: Would you mind Chief Justices' permission and submit to the Court the cases in which courts heard what you said they sometimes do namely -- namely that while there is -- while there was a suppression for truth or full -- full consideration makes it likely that he could be readmitted and therefore (Inaudible) which you said there were such cases?

Mr. Maurice A. Roberts: Mr. Justice Frankfurter, I said I recall the right folder, I recall some -- I don't believe that they are reported.

I -- I am merely calling upon my experience in this field.

Justice Felix Frankfurter: Well, wouldn't you go back into department you consulted your associate if there are opinions even unreported opinions, would you be good enough to submit it to the Court.

Mr. Maurice A. Roberts: Yes.

I'm -- I'm not so sure that there are even unreported opinions.

If -- if I can find that, I think I'd be very happy to submit them.

Justice Felix Frankfurter: (Voice Overlap)

Chief Justice Earl Warren: And you may respond the course if you wish, Mr. Forer.

Rebuttal of Joseph Forer

Mr. Joseph Forer: Thank you sir.

First of all, I don't understand Mr. Roberts when he says that the petitioner did not raise in the Court of Appeals the question of the insufficiency of the evidence on the Communist Party ground because I have here a copy of the appellant's opening brief in the Ninth Circuit and on page 2, they have a statement of points and it -- I'll read you just the first statement of the first points stated.

Chief Justice Earl Warren: On the Court of Appeals?

Mr. Joseph Forer: That's in the Court of Appeals and -- and he -- you don't have that here but he -- he told you that the questions sufficiency of the evidence was not raised in the Court of Appeals.

But the very first point reads as follows.

Appellant here asserts the following points, one, that the evidence received that the trial was insufficient to support the findings of the trial court and that the findings of the trial court are not supported by the evidence.

The second point is that the judgment isn't supported by the finding.

On its first point is that the findings are not exploited by the evidence.

Justice John M. Harlan: Did they discuss the sufficiency of the evidence on the Communist Party finding?

Mr. Joseph Forer: I -- let me say this.

I have trouble understanding his brief and his reply brief.

And the whole thing is -- I don't know if it's -- what it discusses or what it's in discussion of.

There is a few sentences that it's more almost like an outline, like maybe the kind of outline that I have here when I get up to argue with the case.

There are few sentences in his reply brief that indicates to me that he at least differently raised the -- the precise question of insufficiency of the evidence that I raised in my replied brief

Justice Felix Frankfurter: I don't understand what --

Mr. Joseph Forer: I may also say --

Justice Felix Frankfurter: I don't understand what the (Inaudible) -- what the -- why is this relevant to anything --

Mr. Joseph Forer: It's all --

Justice Felix Frankfurter: -- we have before us.

Mr. Joseph Forer: Well, he -- Mr. Roberts said perhaps he shouldn't remand because he doesn't know whether the Ninth Circuit will consider the point because they may say the point wasn't raised before them.

And I was just calling to your attention that as I read the briefs, the point was raised before them at least as well as any other point was raised before it.

Justice John M. Harlan: Did you describe that?

I would say a sort of standard.

Mr. Joseph Forer: What?

Justice John M. Harlan: Did you say --

Mr. Joseph Forer: Well, that's true of the other points, Justice Harlan.

And nevertheless, the Ninth Circuit wrote an opinion.

So, that -- I was just trying to give you the facts on this particular matter which Mr. Roberts mentioned.

I'd now like to bring up the point that Justice Stewart alluded to.

It maybe true that lying to the naturalization examine law on a matter which is not material maybe evidence of bad moral character.

And when I say not material I mean not material in the sense that the lie wouldn't made it -- that note was purposeless in the sense that if he told the truth, it wouldn't make any difference.

But that's to an irrelevant fact, Justice Stewart, because of the fact that the denaturalization statute does not, as it now reach and as it passed since the Immigration and Nationality Act was enacted, does not authorize denaturalization just because the person was ineligible for naturalization.

It does not authorize denaturalization because naturalization was wrongly or improvidently or even illegally granted.

It authorizes denaturalization only where there was a misrepresentation or concealment.

This incidentally is a change in the law.

So the fact that the man was a person of bad moral character, even if was -- he was shown to be such by his misrepresentation, does not bring him under the denaturalization statute.

Justice Felix Frankfurter: Does the statute say that there must be a misrepresentation which --

Mr. Joseph Forer: Or concealment.

Justice Felix Frankfurter: -- or concealment, which we prospectively canvassed and considered would have barred examine of the citizenship?

Mr. Joseph Forer: It doesn't say it in -- in those words.

Justice Felix Frankfurter: Well, in what words does it say?

Mr. Joseph Forer: It says that you will be denaturalized an account of a naturalization which was procured by a concealment or misrepresentation and I don't see how you can say that naturalization was procured by a falsification unless you show that it is a falsification which made a difference to the result.

Now, let me get in terms of the fire plug parking analogy, and I think that's very good to show the differences between us.

Now, I -- it seem to me that Mr. Roberts vacillated somewhat on his answer to whether lying about fire plug parking was or was not a denaturalizing fact and I thought that he ended up by saying, "Yes, it was caused for denaturalization but maybe a judge or the Immigration Service in such circumstances would give the individual a break and they wouldn't -- they wouldn't press it."

Now, the way I look at it is this.

I say that if the alien, the applicant for naturalization lied about this fire plug parking, it might or might not be cause for denaturalization.

If all you showed was that he lied, then you haven't carried the burden of materiality, because obviously he has not suppressed a fact which would have made any difference to the naturalizing court.

So if the Government really wants to use that to denaturalize him, then they should do it.

There might be a case in which they should do it then the Government might show that this man parked in front of the fire hydrant because he was trying to -- to perpetuate a scheme of arson and this was a way of doing it.

And if he had told the Immigration Service about this arrest, you -- it might reasonably have led the Immigration Service to discover an attempted arson and if they had discovered that, that might well be relevant to his good moral character and might have led the naturalizing court to deny him citizenship.

The point I'm making is that you can't look at it from a point of abstraction like they're doing about.

Is it the kind of thing that sounds bad or it doesn't sound bad?

The burden is on the Government to show whether or not that misrepresentation, whether it's about fire plug parking or anything else would resulted in or had in effect on the procurement of naturalization and that very often maybe a question of fact.

A question of what was -- why did he conceal this fire plug parking.

Justice Felix Frankfurter: As a practical -- as a practical thing, as a practical thing, as I see it, we attended many naturalization proceedings along though, what you're doing is reading out of the propriety of the regulation or the inquiry, an inquiry to whether a man was arrested, as a practical thing, it means was on the holding that he lied about whether you arrest him.

Mr. Joseph Forer: I -- I --

Justice Felix Frankfurter: Because practically, it's ultimately possibly to have carried out to -- to put the burden on the Government that if he had told the truth, nothing, no consequence would have happened rather than to the ultimate judgment on naturalization.

Mr. Joseph Forer: No.

No, Justice Frankfurter.

I -- I can't agree with that.

In the first place, very frequently, the arrests which have been suppressed are arrests which indicated bad moral character from their nature.

You can always --

Justice Felix Frankfurter: But --

Mr. Joseph Forer: -- check the conviction.

Justice Felix Frankfurter: -- there must be millions of arrests that have no such (Voice Overlap) --

Mr. Joseph Forer: I don't mean the arrest.

Well, so why -- so why should you denaturalize a man on account of that?

Justice Felix Frankfurter: Because that in this case, they might find out his associations.

Mr. Joseph Forer: But he's got a burden.

That's -- that's entirely speculative here.

He -- the Government has the burden of showing that.

Justice Felix Frankfurter: That's why --

Mr. Joseph Forer: If --

Justice Felix Frankfurter: (Inaudible) about how you can arrest him.

Mr. Joseph Forer: No, I don't think so.

Suppose he -- he lies about an arrest which resulted in the conviction for murder.

That wouldn't be safe.

Justice Felix Frankfurter: Well, no, but you -- then it wouldn't -- he also has to answer whether he is being convicted of any crime.

Mr. Joseph Forer: Not on this form particularly.

I'm not sure.

Justice Felix Frankfurter: Do you ask about that?

(Inaudible) whether he's been convicted of felony.

Mr. Joseph Forer: The form said not -- not that form has said, "Have you ever been arrested?"

Well, it's easy enough to check it.

Well, the form is in there, but let me just make one additional point in answer to your question, Justice Frankfurter.

The longer that the Government waits, the harder it is to get at the facts here.

That's obvious.

And it seems to me --

Justice Felix Frankfurter: That's partly because they have been shut off from getting them.

Mr. Joseph Forer: Well -- but, you have no time limit here.

This -- they can convict the man for perjury if it's a really mat -- if it's a material allegation.

This is a question of putting an additional sanction on but it's a sanction which has no time limit.

Now, they can wait 13 years like they did here or 32 or 33 years like they did for Costello and --

Justice Felix Frankfurter: I'm with you on --

Mr. Joseph Forer: -- of course its (Inaudible)

Justice Felix Frankfurter: -- I'm -- I'm with you on that.

I have long stories but they didn't -- my own experience would be, I'm in 32 years but you're in 20s.

I'm with you on that but there would be a time limit.

But we can't -- because of the -- there is no time limit indulging rules that encourage lying.

Mr. Joseph Forer: Well, I don't think you're encouraging lying.

In the first place, I think the policy judgment was made by Congress when it said a naturalization procured by misrepresentation.

In the second place, any -- any dilution or any rule of materiality can be said to encourage lying in that sense.

And in the third case -- place it just proves too much.

If -- if you say you had a rigid materiality standard that encourages lying, then you can say that it -- they have any materiality standard in encourages lying and you're driven to what the Third Circuit did in the Montalbano case which is quoted approvingly by the Government in their brief on page 29.

And they said, "As long as the Government fought the question was worth asking that makes the question material in the individual is under a burden to answer."

Now, I don't think that's a sound rule and it throws materiality out of the window.

And it's particularly an unsound rule when you think of some of the questions that some of the subordinate officials or the Immigration Service thinks worth asking.

Thank you.