COSTELLO v. UNITED STATES

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Argument of Edward Bennett Williams

Chief Justice Earl Warren: Number 59, Costello versus United States.

Mr. Williams.

Mr. Edward Bennett Williams: Mr. Chief Justice, may it please the Court.

The petitioner in this case was born in 1891 in Cosenza, Italy.

He came to the United States at the age of four in 1895.

He filed a declaration of the intention to apply for citizenship in March of 1923 and filed a preliminary form of application in May of 1925, an application for citizenship in September of 1925 and was granted citizenship at that time.

Suit was instituted under the Immigration and Nationality Act of 1952 in May of 1958.

There were a number of grounds alleged for the revocation, cancellation of citizenship but the one that is germane on this petition is that the petitioner is alleged to have willfully misrepresented his occupation in his preliminary form of application and in his application for citizenship in that he stated that his occupation was real estate when in fact the Government contends he was a bootlegger.

Now, the trial judge entered an order revoking citizenship on two grounds.

He rejected all of the other grounds averred by the Government.

The two grounds were that there was a willful misrepresentation of occupation.

And secondly, a willful misrepresentation when petitioner swore that he would support and defend the Constitution and laws of the United States.

Justice Potter Stewart: On the theory that he was down there violating the Eighteenth Amendment of the (Voice Overlap) --

Mr. Edward Bennett Williams: On the theory that he didn't love the Constitution that he didn't love all of it and the Eighteenth Amendment was a part of it and that there was certainly a mental reservation with respect to that part of it when he swore allegiance to the United States.

That contention, Mr. Justice Stewart, was rejected by the Circuit Court on the ground that the swearing to support the Constitution of the United States really is a foreswearing of allegiance to the fatherland and a swearing of allegiance to the ideological concept of the democratic system and that it does not require embracing all the individual parts of the Constitution.

There was no allegation that he misrepresented the fact when he said he was attached to the principles of the Constitution and so that second ground was rejected by the Court of Appeals leaving only one ground as the predicate for denaturalization as the case comes to this Court in its present posture.

Now, it's our contention, if the Court please, that there is not evidence to support the finding that there was a willful misrepresentation of the fact with respect to this petitioner's occupation at the time the representation was made in 1925.

The evidence in the trial court shows through an immigration and naturalization inspector who was offered by the Government as a witness.

That on October 31, 1924, a corporation was formed called the Koslo Realty Corporation.

The petitioner was the president of this corporation.

A charter was issued by the State of New York authorizing this company to buy, sell, manage and lease real estate in New York and all of the United States and abroad and to build (Inaudible) houses and other buildings in the same territorial area.

The record shows that the president -- the president of this corporation was the petitioner and that his associate who was the secretary of the corporation was one (Inaudible)

The record further shows that prior to his preliminary application for naturalization, this company purchased two apartment buildings at West End Avenue and 92nd Street in New Year.

The record shows that these were substantial purchases because there was a purchase-money mortgage issued on the transaction which was of record and brought to court by the witness for the Government in the amount of $76,800.

And on June 22, 1925, prior to the petitioner's naturalization, these apartments were in fact sold bearing mortgages of $116,000.

The record further shows that the petitioner on this individual transaction made a profit for himself of $25,000 in the year 1925 which is the crucial year in this case.

Justice Potter Stewart: He's alleged to have made these material misrepresentations or this material misrepresentation on three different occasions, is it not?

Mr. Edward Bennett Williams: Yes, sir.

He's alleged to have made --

Justice Potter Stewart: When -- when were they?

Mr. Edward Bennett Williams: He's alleged to have made it, Mr. Justice Stewart, on May 1, 1925 when he filed his preliminary form and then --

Justice Potter Stewart: (Inaudible) that real estate transaction in relation to that (Inaudible)?

Mr. Edward Bennett Williams: The -- the incorporation of the company was on December 24 and the -- 1924 and the purchase of the West End properties was on December 1, 1924.

Justice Potter Stewart: The sale?

Mr. Edward Bennett Williams: And the sale was on June 22, 1925 which would have been --

Justice Potter Stewart: Subsequent.

Mr. Edward Bennett Williams: -- subsequent to the first misrepresentation alleged by the Government.

Justice Potter Stewart: Right.

Then when was the second alleged (Voice Overlap) --

Mr. Edward Bennett Williams: The second was on September 10, 1925 when he filled out his -- his petition for naturalization and it's contended that at that time, he was orally examined also and said he was in real estate and this was before his naturalization proceeding on the same day, September 10, 1925, so that you have the corporation formed October 31, 1924.

You have the acquisition of two apartment houses in December 24 and you have the sale of those apartment houses in June --

Justice Potter Stewart: June.

Mr. Edward Bennett Williams: -- of 1925.

Justice Potter Stewart: 1925.

Mr. Edward Bennett Williams: You have, thereafter, a release of the purchase-money mortgage by the petitioner as president of the -- this company on December 21, 1925.

Now, the Immigration and Naturalization Examiner said that these records were unearthed by examining the real estate records for four boroughs of New York, Queens, Manhattan, Bronx and Richmond.

Brooklyn.

Thank you.

There were only four boroughs wherein an investigation was made, although the corporation charter specifically gave authorization to do business throughout New York State and elsewhere.

Over and above this, the record shows that lots were purchased by this corporation in August of 1925 -- on August 12, 1925 in the Bronx.

They were sold the next year to the Rosenblum Realty Corporation on June 22 of 1926.

The record also shows a very substantial real estate transaction entered into by this corporation of which the petitioner was president.

In October of 1925, when several pieces of ground at Nelson Avenue in the Bronx were acquired, there was a purchase-money mortgage of $70,000 on this property.

And within six months, this property was sold with a purchase-money mortgage of $310,000 on it with buildings having been erected on it and the sale was consummated subject to leasings and tenancies then in existence demonstrating that substantial buildings had been put up in 1925, sold in 1926 with leasings and tenancies, carrying a mortgage money of $300,000 by the corporation of which this man was the president.

The record further shows that there were two other corporations, the Babylon Waterfront Company and White Homes Incorporated both of which charters were issued for real estate operations, one in January 26, and the other in July of 1926.

I think it's one of the verities of life that one does not become active of record in the real estate business until a certain passage of time takes place.

There is a record here that that from the four boroughs which were examined for the years in question, these transactions took place at this time and that there was a profit made by the petitioner of $25,000.

Now, the record also shows that during the 13 years between 1919 and 1932, the petitioner had income of $305,000.

That's significant for these reasons.

The income is specifically delineated in the record for the years 1927, 1929 and 1930, namely that he had income in those three years of $134,000 leaving $171,000 of income to be distributed over the remaining 10 years, which would give a mean average of about $17,000.

Now, I say vis-à-vis the profit that was made in the real estate transaction of 1925 on the sale of the apartments at West End Avenue and 92nd Street, it can be seen that the $25,000 income constituted not merely a substantial part of the income for that year derived at from a mean average but the major part of petitioner's income for that year.

Now, this $305,000 figure was a figure arrived at with the Bureau of Internal Revenue in a settlement of tax liability for the 13 years in question.

Now, if the Court please, if this case were here, not as a denaturalization case but as a perjury case, I think that it's fair to say that qualitatively, the evidence here would not support a perjury conviction.

And I think the only difference between a perjury case on this answer and a denaturalization case is in the quantum of proof and the procedural requisites of proving perjury under the federal statute.

But qualitatively, I don't think that the evidence supports the fact that this was a perjurious answer or a willfully false answer because in fact at the time that the representation was made by the petitioner, that he was in the real estate business, the record shows as adduced by the Government itself in this case in truth, in fact he was in the real estate business.

Now, of course, the quantum of proof, as this Court has said on many occasions, is that evidence must be clear and convincing and unequivocal as stated in the Baumgartner and the Schneiderman case.

Now, the Court has said in the Nowak and Maisenberg cases in 1958, that where the question is subject to an inference by the person interrogated and that the inference is reasonable and that he answers it truthfully on the inferential predicate that a denaturalization decree will not stand.

In that case, there was a two-pronged question, "Do you believe in anarchy?

Do you belong to any organization or association which advocates anarchy or the overthrow of the United States Government?"

In those cases, the petitioner has answered in the negative.

In each instance, they were members of the Communist Party at the time that they made these answers.

And this Court said that those questions under the doctrine of the Houston (Inaudible) might conceivably have been interpreted by the person answering as calling for an answer dealing with belief in anarchy or the belonging to an organization advocating anarchy and that alone and therefore, in that frame, his answers could not be said to constitute a willful misrepresentation.

Now, in this case, if the Court please, the Government conceded below and the Court of Appeals found that the question propounded was subject to the inference that it was calling for the petitioner's legitimate occupation.

In the Government's position as enunciated in its printed brief below, it said, "Surely, this question could have been construed as calling for the petitioner's legitimate occupation."

He could have interpreted the question as calling for only legitimate occupations.

And in the opinion of the Court of Appeals below, the Court said the very same thing.

At page 250 of the record where the opinion appeal -- appears, "Surely, it's conceivable that an applicant might believe that the answer call for no more than a disclosure of some legal occupation."

And if that concession is made and if that concession is found to be the fact by the lower court and if the record clearly shows that the petitioner was engaged in an occupation as a real estate operator, then I say, that it must follow inevitably that the decree of the lower court must fail.

Now, how could this information concerning alleged criminal activity have been elicited from the petitioner?

I say it could have been elicited in exactly the way that it's now elicited by the Immigration and Naturalization authorities.

In the case of United States of America against Tooma which was decided only in October of this year by the United States District Court for the Eastern District of Michigan.

There is spelled out an exact quote from the application for naturalization as it exist today.

And this is the way the information is elicited today which the Government says should have been elicited by virtue of the simple question, occupation, my present occupation is.

It says, "The law provides that no person shall be regarded as a person of good moral character who, during the period of residence required for naturalization is or was a habitual drunkard, has committed adultery, derived income principally from illegal gambling activities, has given false testimony for the purpose of obtaining any benefits under the immigration and naturalization laws, is or was a polygamist who practiced or advocated polygamy, is or was a prostitute or engaged in or received support of the proceeds from prostitution or procured, imported, or attempted to procure or import persons for prostitution or any other immoral purposes, or who came to the United States to engage in any other unlawful commercialized vice, who has committed a crime involving moral turpitude or is or has been an illicit trafficker in narcotics.

Have you, at any time, either within or outside the United States ever been or ever committed any of these things or acts?

Now, if that question had been asked to the petitioner and if the evidence had showed that he was in fact, in 1925 or at any time theretofore, engaged in bootlegging and he'd answer to the negative, there would have been no question that this would have been a willfully false, materially false representation on which a denaturalization decree certainly might well have been predicated.

Chief Justice Earl Warren: Were there any questions comparable to that in -- in this proceeding in 1925, Mr. Williams?

Mr. Edward Bennett Williams: Mr. -- Mr. Chief Justice, the only question on that score was, "Have you ever been arrested?"

Now, in this case, there is no evidence that that question was ever asked of this petitioner and the Government failed in its proof below on that.

Ordinarily, that information would appear on what is Government's Exhibit 8 which appears in the back of the record.

This is called an admitted slip.

And generally --

Justice William J. Brennan: (Inaudible)

Mr. Edward Bennett Williams: -- in those days -- that's at page 202, Mr. Justice Brennan.

Generally, in admitted slips of those days, there would appear on the back of the slip, the words NCR which would stand for no criminal record or if a criminal record were divulged, the record would be delineated on the back of the admitted card.

But here, there was no showing that such question was ever asked of the petitioner and the trial court found that the Government's proof did not measure up on this score.

So that -- or the -- the questions that were put can be found in the record, first of all, at page 200, question two, "My present occupation is real estate."

And then, the Government contends that at page 202, the typed in words "Real Estate" were an oral answer given by petitioner to an Immigration and Naturalization Examiner.

And then in the actual petition for naturalization which appears at page 204, Government's Exhibit 9, which was executed on September 10, 1925, the second answer, "My occupation is Real Estate."

So for these reasons, it is petitioner's contention that the Government's case did not establish that there had been a willful misrepresentation of fact by petitioner in this instance.

Now, secondly, the trial judge specifically refused to draw an inference from the fact that petitioner did not testify in this proceeding.

And the petitioner did not testify in this proceeding.

The Court of Appeals, in its opinion, at page 208 of the record, has this to say, "We think the District Court, though it did not do so, might properly have buttressed its findings by the unfavorable inferences to be drawn from the fact that Costello chose to remain off this witness stand and to introduce no evidence in answers -- in answer to the Government on this case indicating fraud."

The matters inquired into were within Costello's peculiar knowledge.

Since Costello was not a criminal defendant in the present proceedings, he had no privilege to remain silent, citing the Matles case in the Second Circuit and the (Inaudible) case here.

Then, if the Court please, the Circuit Court went on to do precisely what the trial court had not done because in the record, at page 250, at the bottom of the third paragraph on that page, the Court says, "If there was any further evidence along this line," meaning evidence of real estate operations, "it would be peculiarly within the knowledge of Costello and his failure to produce evidence of such activity warrants the inference that there was none such."

Now, that alone, I would not contend, was sufficient to say that the appellate court drew an inference against him from his failure to take the stand.

But that in context with the final sentence on this page, "Surely," said the Circuit Court, "it is conceivable that an applicant might believe that the answer called for no more than a disclosure of some legal occupation."

There is no evidence in the record that Costello so believed.

In other words, a hiatus in the proof is supplied by silence.

And I say that the Government is spiked on the horns of a dilemma with respect to this proposition of law because either the law is that a defendant maybe called in a denaturalization proceeding to give evidence against himself or he may not.

Either citizenship is one of those things protected within the purview of the Fifth Amendment or it is not.

If it is, then he could not have been called and it likewise follows that no inference could have been drawn against him from his failure to testify.

If it is not, then he was equally available to the Government and they could have called him and asked him the specific question as to what he believed the question meant when it was propounded to him.

So that they are seeking to draw an inference from the failure to produce evidence which was equally available to the Government as it was to the defendant if a defendant is properly callable and if he is not properly callable, then they are taking his privilege within the Fifth Amendment and turning it back inferentially against him to avoid the true purpose of it.

Now, this Court has never passed on the question, the specific question as to whether a defendant may be called by the Government in an effort to denaturalize.

That wasn't reached in the Minker case.

The Matles case in the Second Circuit ruled that he could be called but it was with some misgivings that Judge Clark penned those words and so stated.

And in this case, in the first instance, the trial judge, Judge Palmieri wrote a long and learned decision on this and concluded by saying that all of his instincts and all of his thoughts in the matter led him to believe that a defendant should not be called in this kind of proceeding but that he was fearful that it would abort the Government's case if he denied them the right to call petitioner and so, he allowed them to call him and -- so that the matter could be passed upon by an appellate court.

So I say that here --

Chief Justice Earl Warren: That was in what case?

Mr. Edward Bennett Williams: That was in this case, Mr. Chief Justice --

Chief Justice Earl Warren: Oh, yes.

Oh, yes.

Mr. Edward Bennett Williams: -- in the Second Circuit before it came here --

Chief Justice Earl Warren: Yes.

Mr. Edward Bennett Williams: -- the first time in 1957.

Chief Justice Earl Warren: Yes.

Mr. Edward Bennett Williams: So that in this instance, the Circuit Court engaged in drawing inferences which the trial court did not.

It drew inferences that the fact finder didn't draw and undertook to buttress its conclusion by those inferences drawn at the appellate level.

And I say that those inferences could not properly be drawn in this case under whatever postulate this Court adopts with respect to the law of denaturalization on the right of the Government to call a defendant.

Again --

Justice Felix Frankfurter: Does that mean -- does that mean that the -- I don't quite follow, that in the Court of Appeals, on the same reading, the same reading, the printed pages of which the District Judge heard, the human voice couldn't say that the clear allowable inference is the opposite of what the District Judge refused to draw?

Mr. Edward Bennett Williams: I don't believe, Mr. Justice Frankfurter, that in a case where the Government has the burden that it has in this case, which is very close to the burden in a criminal case, that the Appeals' Court should draw inferences from the evidence that the trial court has rejected because it is then substituting its fact finding --

Justice Felix Frankfurter: Is that the case here?

Mr. Edward Bennett Williams: -- function --

Justice Felix Frankfurter: Is that the case here?

Mr. Edward Bennett Williams: I think it did that.

Yes, sir.

Justice Felix Frankfurter: What inference that the -- Judge Dawson rejected the Court of Appeals to --

Mr. Edward Bennett Williams: Judge Dawson did not draw an inference that the petitioner in this instance -- he did not draw an inference with respect to the petitioner's understanding of the question about occupation.

The Circuit Court drew an inference that petitioner understood the question to call for all occupations, legal or illegal, and they so stated.

Justice Felix Frankfurter: Well, on what basis did Judge Dawson reposed drawing such an inference?

I can understand well if we had a case where the District Judge, hearing human testimony, disbelieved or interpreted it in one way?

What -- we haven't got that situation here, have we?

Mr. Edward Bennett Williams: We don't have an inference being drawn from viva voce testimony of the petitioner or any other witnesses.

Justice Felix Frankfurter: Or even the meaning of a doctrine?

Mr. Edward Bennett Williams: That's right.

Justice Felix Frankfurter: But conceded -- conceded -- what shall I call it?

Conceded material, equally accessible and equally carrying the same relevance -- significance of reason or relevance to three judges or to the one judge.

All I'm suggesting is there is a great difference, even accepting your heavy standards of burden for the course as the course I do.

And I'm just curious to know how you fence in, how you limit the -- the doctrine processes, allow that to the Court of Appeals, it will not indulge in by the District Court.

Mr. Edward Bennett Williams: There was, Mr. Justice Frankfurter, oral evidence with respect to this issue in the trial court.

And I think in -- that the whole question of inference as to the petitioner's belief must be drawn in context with that oral evidence.

True, it did not come from his lips but there was oral evidence in the court below on this overall issue, which I think required that such inferences has to be drawn, be drawn by the true trier of the facts.

Justice Felix Frankfurter: But if they -- Judge Dawson formulated specific findings, he -- he drew up, one, two, three, four, five findings.

Now, was there any finding that he made that the Court of Appeals rejected?

Mr. Edward Bennett Williams: Yes, sir.

Justice Felix Frankfurter: Which one?

Mr. Edward Bennett Williams: Well, they rejected his finding that --

Justice Felix Frankfurter: Which one in the record, beginning with page 27?

Is it three -- no, that it shouldn't be, they didn't reject that.

Mr. Edward Bennett Williams: Well, he found -- he may rejected finding four, Mr. Justice Frankfurter, at page 28.

Justice Felix Frankfurter: Well, they didn't reject that.

Mr. Edward Bennett Williams: I understood --

Justice Felix Frankfurter: Is that the -- the (Inaudible) that when defendant in his petition so on, swore that he was attached to it, which support the Constitution, he was engaged in extensive activities in violation of the laws of United States.

They didn't reject that.

Mr. Edward Bennett Williams: I understood -- I understand them to reject --

Justice Felix Frankfurter: But if they reject to that then they'd be rejecting something to your favor.

Mr. Edward Bennett Williams: I understand them to be rejecting that when they say -- I'm looking for the page if you'll just (Inaudible), when they say that they could not conclude that he did not have the request allegiance to the United States or that he falsified his allegiance to the United States.

Justice Felix Frankfurter: Well, insofar they did that as I say, that's -- you got no grievance on that story.

Mr. Edward Bennett Williams: No, I -- no.

I understood you to ask me as to the finding --

Justice Felix Frankfurter: Well, I'm -- well, I'm --

Mr. Edward Bennett Williams: -- that they rejected it.

Justice Felix Frankfurter: You're quite right.

All I meant to say, what finding in your favor that the District Judge makes if the Court of Appeals rejects this?

Mr. Edward Bennett Williams: It wasn't --

Justice Felix Frankfurter: Because he may draw inferences which he declined to draw or couldn't -- wasn't fit in the field, the evidence warrant it and being drawn.

Mr. Edward Bennett Williams: It wasn't that they rejected the finding.

It was that they made a finding that he had not made that the silence of the defendant was inappropriate basis for inferring that he understood the question as the Government contends he should've understood it.

Justice Felix Frankfurter: Did he say wouldn't make such a finding or that -- that it's inadmissible for him to make it?

Mr. Edward Bennett Williams: He said that he would not draw an inference from the petitioner's silence of (Voice Overlap) --

Justice Felix Frankfurter: But he didn't say, "I -- I refuse to draw one because it would not be a legitimate instance."

Did he?

Mr. Edward Bennett Williams: He --I -- I'm just trying to find out the reach of your suggestion that where you have not, the usual cases of the District Court, the District Judge, saw the witness, heard and etcetera and made that kind of an assessment, whether -- to what extent the Court of Appeals has limited on the same body of material to say, "It lends itself fairly to a deduction or an inference, although the trial court was neutral about it."

Mr. Edward Bennett Williams: In essence our position is that the trial judge said he would not draw any inference from the petitioner's silence.

And the Court of Appeals said, "We do draw an inference from the petitioner's silence."

Justice Felix Frankfurter: What did he really say?

Did he feel he wasn't free to draw it or that the -- the circumstances, all the other circumstances with counsel against him?

Makes a lot of -- to me, it would make a lot of (Voice Overlap) --

Mr. Edward Bennett Williams: I think it's a -- I think it's fair --

Justice Felix Frankfurter: If he said that the evidence -- the way this case -- what I have, what I haven't got would make it unwise that seem unfair to draw an inference.

Mr. Edward Bennett Williams: I think that's what he meant.

Justice Felix Frankfurter: The defendant has a right not to take the stand if he doesn't want to.

Mr. Edward Bennett Williams: I think in the fairness --

Justice Felix Frankfurter: The Government doesn't ask that he be put on the witness stand and therefore, not confronted with that problem?

Mr. Edward Bennett Williams: I think in fairness that that's exactly what the trial judge had in mind, that he felt that he should not draw an inference and -- and I think that his feeling that he was inhibited from drawing an inference was illegal inhibition and not a factual inhibition.

I think that is the fact.

Justice Felix Frankfurter: What if he was wrong about the law, that -- if he's wrong about the law then -- then he -- and if -- if the Court of Appeals is right about the law, I'm not saying one thing or another because -- one thing that is of my mind on it, I should think the Court of Appeals -- if a District Court refuses to draw an inference from silence because as a matter of law, he couldn't draw it, I should think that -- and he reach the conclusion against a defendant, anyhow, in other ground, I should think that the Court of Appeals, if, as a matter of law, it could draw such an inference to be silent, would not be exceeding its powers or its proprieties in drawing such (Inaudible).

Mr. Edward Bennett Williams: I think that would certainly be generally true, Mr. Justice Frankfurter.

But here, you have the unique situation where regardless of what the law is, they were, I believe, erroneous in drawing a conclusion from his failure to testify because if the law is that he could've been called to testify, then the Government could've called him and a hiatus in the Government's proof should not be filled by an inference from the failure to call evidence which was equally available to it.

And if, on the other hand, he could not have been called because of the Fifth Amendment then -- because of all of the body of law on that subject, no inference should've drawn from his invocation of the Fifth Amendment.

Justice Felix Frankfurter: Well, if -- if -- suppose you are right, if you are right and as to everything else, one would feel that there's no basis for reversal, I should think the (Inaudible) in this relation on that theory would be send it back to the Court of Appeals is very -- you had no business to draw that inference and on the record that (Inaudible) rub that out of your minds and saw it and now (Inaudible)

Justice William J. Brennan: (Inaudible)

Mr. Edward Bennett Williams: I -- I don't know what rationalizations the Court of Appeals used to arrive at the affirmance of the judgment below, except insofar as they're articulated in the opinion and they do engage in articulation of one rationalization which I believe has conferred the law.

And it may be that what Mr. Justice Frankfurter says is entirely correct that they should be told that this rationalization was improper and asked whether they can justify the trial court's finding without it.

Justice William J. Brennan: (Inaudible)

Mr. Edward Bennett Williams: I don't know.

Justice William J. Brennan: (Inaudible)

Justice Felix Frankfurter: I wouldn't ask or whether they could sustain it anyhow.

I would ask him to be considerate with the excision of that ground if that's -- that (Inaudible).

Who would object to that?

And in other words, you suggested [Laughs] -- that wouldn't be (Inaudible) whether it (Inaudible)

Justice William J. Brennan: No, I -- I would prefer to have the question phrased more happily --

Justice Felix Frankfurter: Right.

Truthfully.

Justice William J. Brennan: -- more happily from the petitioner's point of view.

Justice Felix Frankfurter: He would be entitled to that.

Mr. Edward Bennett Williams: Now, if the Court please, again, it is the petitioner's contention that these proceedings should be barred by reason of the delay in their institution because the long delay constitutes a violation.

In this instance, I believe, of petitioner's rights under the Fifth Amendment because it is our contention that in this proceeding, there was clearly called for the application of the equitable doctrine of laches, for these reasons.

The petitioner was naturalized in 1925.

The record shows that in that same year, he was arrested in the same district after an investigation by the same office, United States Attorney's Office, which would have jurisdiction over the naturalization proceeding for violation of the Volstead Act.

He was indicted for violation of the Volstead Act.

The next year, he was tried for violation of this Act and there was a disagreement among the jurors and ultimately a nolle pros entered.

Now --

Chief Justice Earl Warren: Just when was that with relation to these proceedings we've been talking about.

What day and -- what day in --

Mr. Edward Bennett Williams: He was arrested in December.

Chief Justice Earl Warren: -- (Voice Overlap) --

Mr. Edward Bennett Williams: He was arrested in 1925, December.

Chief Justice Earl Warren: Oh, this is a --

Mr. Edward Bennett Williams: He was indicted --

Chief Justice Earl Warren: Yes.

Mr. Edward Bennett Williams: -- in the following month and he was tried in a disagreement to the problem.

So that the record in this case shows that the Government has had knowledge of the fact if it'd be true that this petitioner was engaged in violation of the Volstead Act for 27 years before they instituted the first case and for 33 years before they instituted the present proceedings.

They've had this information.

The record shows in the first case that there were three United States Attorneys who were engaged in an investigation of this petitioner in 1925 that they were using wiretap methods of investigation on his office at that time.

The record shows in --

Justice William J. Brennan: (Inaudible)

Mr. Edward Bennett Williams: They indicted him -- I believe, Mr. Justice Brennan, it was January of 1926.

He was arrested in December of 1925 and indicted the following month.

Justice William J. Brennan: (Inaudible)

Mr. Edward Bennett Williams: 1925, September.

Now --

Justice William J. Brennan: (Inaudible)

Mr. Edward Bennett Williams: My -- my recollection is they began in January of 1926 and culminated in an indictment in 1926, January.

He was tried in 1927 and the jury disagreed that no retrial was ever held.

In the Court of Appeals' opinion, the Court points out so far as the early wiretapping is concerned, the testimony shows that in the period prior to 1925, the United States Attorney in New York was conducting an investigation of bootlegging activities of a number of persons including the petitioner in this instance.

And that in the course of this investigation, certain telephones were tapped and it goes on to list the assistants who were in charged of this investigation and subsequently list the indictment which was returned.

In any event, in 1939, there was a federal grand jury proceeding in the Southern District of New York conducted by the then United States Attorney for the Southern District of New York and this petitioner was called and he gave testimony to the fact that he had engaged in violation of the liquor laws of the United States during the period in question.

So that -- that there has been information within the Canada Government as I indicated since 1926, 1925, December, we can go back that far, to the effect that this petitioner at or about the time of naturalization, was engaged in the conduct which is now being used as the predicate prescripting him of his citizenship.

In -- in the decision of the Circuit Court the first time, it's interesting to observe that in defense of the use of the wiretap evidence that was made in 1925, the Circuit Court observes while you can't complain about the use of this wiretap evidence because it was spread out on the public records of the courts of New York and therefore available to the immigration authorities and the republication of wiretap information certainly isn't an offense.

In other words, they were justifying the fact that the immigration authorities used wiretap evidence spread on the records of New York, saying it was public information and they could have got it.

The same argument, of course, holds that the fact that the man was engaged in the activities which they contented he was engaged in 27 years later, was available to him because they said the fruit of such tapping was spread on the public record of the open trial for bootlegging.

We do not construe 605 of the Communications Act to render it, a crime to republish information which was lawfully intercepted and divulge once before prior to the Act's passage.

Justice Potter Stewart: All these -- what you're telling us now, all goes to your point that the Government is barred by laches, is that it?

Mr. Edward Bennett Williams: Yes.

Now, the Government says to that, Mr. Justice Stewart, "No, we're not barred by laches because laches doesn't bar the Government in anything."

There is no -- there is no defense of laches here because the Government has the benefit of the rule quod nullum tempus occurrit regi that -- and this is a rule of -- of public policy that was made applicable in this country by Mr. Justice Story so as the public might be protected from the negligence and faithlessness of their servants.

And so it says that the Government could've waited 27 years or 30 years and brought this action.

Well, the fact of the matter is that all of the cases wherein this doctrine has been applied by this Court have been cases involving public revenues or the public funds.

They've been cases which can be broken down categorically into three classes.

They've been cases of suits on surety bonds, suits for title to public lands and suits for monetary claims but not suits involving this kind of right.

Justice Potter Stewart: Well, the fact of the matter also is, is it not, that the -- that in no case has the Government ever been held to be barred by laches?

Mr. Edward Bennett Williams: That's certainly so, Mr. Justice Stewart, and I'm hopeful that this will be the precedent breaker.

Justice Felix Frankfurter: What you would be doing is to do what the Congress does when it wants to have a statute (Inaudible)?

Mr. Edward Bennett Williams: It's interesting, I think, Mr. Justice Frankfurter, that at the time that Justice Story enunciated this doctrine as applicable to the United States of America and barred it from the common law of England that there was a three-year statute limitations on treason.

Now, the only justification for this doctrine is a public policy.

Now, at the time that he enunciated this doctrine of public policy, it was the public policy of this nation as enunciated in his congressional statute that treason prosecution shouldn't be brought three years after the fact.

I say that the public policy with respect to citizenship ought to be the other way because otherwise, we are leading inevitably to a duality of classification for citizenship.

Because if the Government can lie back and wait 27 years to institute a denaturalization case on grounds which it knew about 27 years before, what it can do is to make a naturalized citizen subject to scrutiny for his post-naturalization conduct unlike a natural born citizen and the Government can then make the decision on its own as to what is some unspecified, unalleged, unproven misconduct should be the triggering force to cause a denaturalization suit to be filed three decades after the fact for something that they knew about at the time that it took place.

Justice Felix Frankfurter: If I may -- if I may, I'd like to encourage you to make that speech to the Senate Committee on leadership.

Mr. Edward Bennett Williams: I don't know that I'll ever be given that opportunity, Mr. Justice Frankfurter.

Justice Felix Frankfurter: Well, you don't wait already, just give him up.

Mr. Edward Bennett Williams: Well, I do before I go before a Senate Committee, Your Honor.

Now, again, whatever effect you will give to the decision of the court below in the first case when it entered its dismissal, I think this must follow.

Judge Palmieri in the lower court found that all the source material for the affidavit of good cause, all the source material that he had available to him indicates on their face that wiretaps were extensively used and that there were innumerable wiretaps and that these wiretaps clearly vitiated the alleged admissions in the aforementioned hearings by the defendant from the standpoint of their use as evidence.

This was what Judge Palmieri found that the evidence before the New York grand jury and before the referee assigned by the Appellate Division of the New York Supreme Court was evidence that was infected plainly with wiretaps.

The Court of Appeals agreed with him and it said this.

It said, and this is the first time this case went to the Second Circuit, it said the moving papers included extracts from the defendant's testimony before a New York County grand jury in 1943 before a referee appointed by the New York State Appellate Division, First Department in 1943 in regard to disciplinarian proceedings against Thomas Aurelio and before the Kefauver Committee in the United States Senate which held hearings in 1950 and 1951.

These transcriptions suggested that state officers had indeed tapped the defendant's phone in 1943.

As a result of which, he testified before the three bodies to facts which he might not otherwise have revealed.

Now, after this finding by the trial judge and by the Circuit Court Judge, the trial judge in the second case admitted this evidence against the petitioner.

Not only that he admit the evidence against the petitioner but he made the very evidence which was infected with wiretapping, a major crutch in his findings of fact and he quotes extensively in his opinion at pages 24 and 25 from this very evidence to show admissions made by the defendant.

Now, the fact of the matter is, the record shows that in this interrogation, which was admitted into evidence against this petitioner, he was confronted with 48 wiretapped conversations.

The -- the interrogator told him that he had dozens of others, to use his exact language, and that he had 130 conversations between petitioner and one other person, not relevant to this case, and to dozens of conversations between petitioner and one (Inaudible).

And it's interesting to note that the petitioner was confronted with a tapped telephone conversation during this interrogation between him and one O'Connell who happened to be one of his co-indictees in the 1925 bootlegging case and on the same page, he's asked about whether he ever engaged in the liquor business and makes an admission that he did.

Now, these things were offered against him in the trial court over vigorous objection after they had been found to have been -- admissions which were induced by wiretaps.

And that finding had been confirmed by an appellate court which said that since they were state taps that it was not improper for the State District Attorney to use them in that proceeding or for them to be received in the federal court before (Inaudible).

When this matter came before the Circuit Court below, it did not elude in its opinion to the admission of this evidence but it is here, it is referred to in the Circuit Court as a basis for the finding that petitioner was a bootlegger.

It's -- it's referred to, if the Court please, as one of the basis upon which the conclusion was drawn.

At page 249 of the record, reference is made to this testimony which he was given when he -- which he had given when he was confronted with some 48 wiretaps and when he was told that there were dozens of others.

Of course, it's urged by the Government in its brief that at no time was he confronted with a wiretap that antedated 1930 but at no time was he told by his interrogator that the interrogator did not have in his possession, wiretaps that antedated 1930.

And the fact is the record shows that there were wiretaps on his premises as early as 1925 and 1926.

So for these reasons, if the Court please, because number one, there is not evidence here to support a finding of willful misrepresentation with respect to occupation because an inference was engaged in by the appellate court contrary either to the rights of the petitioner under the Fifth Amendment or contrary to the basic evidentially rule that evidence -- evidential inferences may not be drawn from the failure to produce evidence equally available to the other side and because the Government has waited 33 years in this instance to bring this action on information which it had in the first instance and because I believe that it will lead to a duality of classification of citizenship, if this rule is not enforced, the application of laches to this case and because the trial court received wiretapped evidence which had been excluded before and which had been found before to have induced the admissions of the defendant.

For these reasons, I respectfully urge that this Court reverse the court below and send the case with orders for dismissal with finality.

Thank you, sir.

Chief Justice Earl Warren: Mr. Spritzer.

Argument of Ralph S.spritzer

Mr. Ralph S.spritzer: Mr. Chief Justice, may it please the Court.

I should like to address myself in order to the contention relating to the adequacy of the Government's proof.

Secondly, I should like to go on to the contention that a portion of that proof was tainted because of wiretapping which had taken place.

And I should like to reserve for final consideration, the contentions which are based on the lapse of time.

Now, certainly, we agree with petitioner that the Government has a burden, a heavy burden of showing by convincing evidence that the misrepresentation was a misinterpretation to begin with and that it was willfully made.

And I think that burden is certainly, particularly heavy when the facts go back a good many years.

Now, in dealing with the question of proof, Mr. Williams has challenged the adequacy of the Government's evidence but perhaps understandably has not summarized that evidence or any of its particulars.

Now, before going on to those particulars, I would like to make brief reference to what the courts below found.

At pages 27 and 28, Your Honors will find the findings of the District Court and you will note that in the first finding, Judge Dawson found that prior to May 1, 1925, several years prior and several years thereafter, "Costello was" and I quote the Court, "actively and extensively engaged in the occupation of smuggling, trucking, storing, purchasing and dealing in alcoholic beverages in violation of law."

And he finds secondly that the real occupation of Costello at the time was not real estate but was bootlegging.

Justice Hugo L. Black: May I ask you a question?

Mr. Ralph S.spritzer: Yes.

Justice Hugo L. Black: Suppose he had not found that but it found that he was engaged in both businesses, would that make any difference in your reference?

Mr. Ralph S.spritzer: Well, I would argue, Your Honor, that at least a person is under an obligation when he is called upon to state his occupation, to state that which is his predominant occupation, the occupation in which he is engaged everyday, the occupation which provides in his income.

And I will seek -- show that the Government's proof here established that as of the time when Costello petitioned for naturalization, his daily activity was bootlegging.

That produced all of his income.

In the year 1925, this realty company purchased one piece of property.

That property had not been sold when petitioner petitioned for naturalization.

So as of the time, that all three of his statements were made, that petitioner was engaged in real estate.

The fact was that petitioner had not derived one penny from the occupation which he gave on his form.

Now, I -- I do intend to show in contrast to that the nature and the extent of the bootlegging activity.

And the conclusion which I would reach by this recital is that on the fact shown, there could've been no misunderstanding as to what was called for by the question.

And on the fact shown, the representation made can only be viewed as false.

And that, of course, was the third finding that the District Court made, that the representations were willfully and fraudulently made.

Now, before going beyond the findings --

Justice William J. Brennan: Mr. Spritzer, is it the Government's position that the record does not show that he was engaged in the real estate business at all?

Mr. Ralph S.spritzer: We think it shows at best that at the time that he was naturalized, he was but incidentally engaged in that.

He had made one investment.

Justice William J. Brennan: Well, does it show at least that much that he was incidentally engaged?

Mr. Ralph S.spritzer: The record shows that the -- when the Koslo Corporation was organized in 19 -- close end of 1924, it made one purchase of real estate.

That was before the petition for naturalization was filed.

The record further shows that that piece of real estate was sold some months after the petition for naturalization was filed, some months after all three of the representations were made.

It shows additionally that in the following year, in 1926, this realty company made several additional transactions.

Incidentally, the record shows that the money that was put into real estate was money that was derived from the bootlegging.

Justice Hugo L. Black: Would that make any difference?

Mr. Ralph S.spritzer: I think it is a relevant factor in determining what his primary activity was.

It also appears that the -- the real estate may have been used as a front and this was one of its uses, to disguise the nature of the Lexington Avenue office which was actually the headquarters from which a giant bootlegging operation was conducted.

Justice Felix Frankfurter: Mr. Spritzer, pieces of real estate varying New York are not tangible goods from one -- something the real estate might be in itself very complicated in the extent of operation.

For how much was this piece of real estate bought and for how much was it cost?

Mr. Ralph S.spritzer: The -- the property records show the transaction.

They don't -- they don't show the prices.

Costello testified that 25 -- that he made $25,000 when this property was sold.

The purchase was, as I've indicated, in advance of the misrepresentations --

Justice Felix Frankfurter: In one of the (Voice Overlap) --

Mr. Ralph S.spritzer: -- in question.

Justice Felix Frankfurter: -- common (Inaudible)?

Mr. Ralph S.spritzer: Pardon?

Justice Felix Frankfurter: He, being one of common in (Inaudible)?

Mr. Ralph S.spritzer: He said he had a 50% interest in the Koslo Company.

Now, I did want to --

Chief Justice Earl Warren: Mr. Spritzer, I --

Mr. Ralph S.spritzer: Yes.

Chief Justice Earl Warren: -- I wonder if we can assume that the only transaction prior to real estate transaction, prior to -- to his statement that he was in the -- the real estate business was a purchase of property that he did not make any money by virtue of the real estate business.

In other words, my point is this.

Suppose -- suppose he'd had a dozen purchases of property but he hadn't sold any, does that mean necessarily that -- that he hadn't made any money by -- in the business by reason of his purchase of these properties?

Mr. Ralph S.spritzer: Well, he certainly had -- if he made a good purchase, he had a potential source of income.

Chief Justice Earl Warren: Yes.

Well, I understood you to say that he hadn't made a nickel.

He hadn't made a nickel in the business at the time that he made this statement?

Mr. Ralph S.spritzer: Yes.

Chief Justice Earl Warren: Now, if he made a good buy, he'd made some money, hadn't he?

Mr. Ralph S.spritzer: He had a prospect in making money.

Yes, he hadn't derived any income was what I meant to say as of the time that he made the statements.

Chief Justice Earl Warren: Yes, but he did in that --

Mr. Ralph S.spritzer: The company had made an investment on the background --

Chief Justice Earl Warren: Well, he did in that same year.

Mr. Ralph S.spritzer: He did later that year.

Chief Justice Earl Warren: Yes.

Mr. Ralph S.spritzer: Yes.

Unknown Speaker: (Inaudible)

Chief Justice Earl Warren: Yes, we'll recess.

Print this transcript Transcript: 

Argument of Ralph S. Spritzer

Chief Justice Earl Warren: -- you may continue.

Mr. Ralph S. Spritzer: Mr. Chief Justice, Your Honors.

At the recess, I was about to refer before dealing with the particulars of the evidence to certain of the findings of the Court of Appeals to which reference has not yet been made.

And particularly, I would like to invite the Court's attention to the statement in Judge Magruder's opinion at record 248 where he states in reference to Judge Dawson's findings that not only were they not clearly erroneous but that they were, and I quote Judge Magruder, the only findings possible on the evidence and that they fulfilled the strictest requirements proof.

Now, I emphasized that in the light of the questions which were raised earlier as to whether there was any lack of agreement as between the District Court and the appellate court.

Now, I would like to --

Justice William J. Brennan: (Inaudible)

Mr. Ralph S. Spritzer: I don't think the Court of Appeals' opinion is rested on any imprints --

Justice Felix Frankfurter: Well, the next paragraph --

Mr. Ralph S. Spritzer: -- (Voice Overlap) --

Justice Felix Frankfurter: -- (Voice Overlap) --

Mr. Ralph S. Spritzer: -- vary to testify.

Justice Felix Frankfurter: Mr. Spritzer?

Mr. Ralph S. Spritzer: Yes, sir.

Justice Felix Frankfurter: The next paragraph.

Will you think the District Court though did not so might properly have buttressed this problem?

Mr. Ralph S. Spritzer: Yes, he's saying the District Court might have gone further.

And as to the point that was made in relation to the statement by the Court of Appeals that, conceivably, someone could believe that this question called for a statement of legal occupation, perhaps, it should be pointed out that Judge Magruder went on to find in this case that a worldly-wise man such as Costello, I'm looking at page 250 now, must have realized that his real occupation was bootlegging and that he's dabbling in real estate was but dust in the eyes to conceal his occupation.

I would like to summarize very briefly some of the testimony that was given in this case which shows, I think, what the nature and extent of Costello's activities were during the relevant period.

Costello got his store in bootlegging in 1921 when he joined forces with one Emanuel Kessler.

Kessler testified at this trial.

Kessler was a huge operation.

He owned numerous boats including an ocean vowing steamer which went regularly back and forth to Europe to bring liquor in.

Kessler testified he brought in about 500 cases a night which he landed on the northern shore of Long Island.

And that represents at the going price of liquor, perhaps, $15 million worth of liquor a year.

Now, Costello and his brother came into this picture, as I say, in 1921.

Justice Hugo L. Black: How old was he then, (Voice Overlap)is that the time --

Mr. Ralph S. Spritzer: In 1921, he was in the 20s.

Justice Hugo L. Black: -- is that the time Judge Magruder was talking about as being worldly-wise?

Mr. Ralph S. Spritzer: I'm sorry, I didn't hear you.

Justice Hugo L. Black: -- is that the time Judge Magruder was talking about his worldly-wisdom at that time?

Mr. Ralph S. Spritzer: Well, by 1925 when he was naturalized, he was somewhere around 30 years of age.

Justice Hugo L. Black: I thought he's born in 1901?

Mr. Ralph S. Spritzer: No, I think in 1890 or something as I recall.

I think 1891, Your Honor.

Justice Hugo L. Black: 1891?

Mr. Ralph S. Spritzer: I think that -- that -- yes, that he was born in 1890s.

As I was about to say, Costello joined this operation in 1921.

His role being that he was hired to truck the liquor from its landing place to places of storage at Costello's own trucks.

They owned storage facilities, a large garage and a large residence which was known as Blackwell Mansion.

Now, Kessler went to jail for prohibition violations in 1923 and he moves out of the picture.

But the activities of Costello apparently grew a pace because we find Costello testifying that one cash of a quarter of a million dollars worth of liquor, this is a single one owned by Kessler, passed to the hands of Frank Costello after Kessler went to jail.

Now, Kessler dealt, necessarily dealt regularly with Costello during the period of 1921 to 1923 because Costello was the man who moved all his liquor and stored it all for him.

Kessler testified that the Costellos had a Lexington Avenue office, the same office as the realty company has as its office address.

Kessler was in daily communication with that office and he says it was the headquarters for the liquor operation and that so far as he knew and he went to the office frequently in addition to being in daily telephone communication.

So far as he knew, there was never any real estate activity at the office.

We get another glimpse of the scale of Costello's bootlegging activities from one Albert Feldman, who also testified in this case, also a bootlegger during the 1920s.

After Kessler went to jail, Feldman, who had previously purchased liquor from him, began purchasing it from Costello.

He recalls well in occasion when he went to Costello's Lexington Avenue office to arrange for Costello to pick up, to store and to sell on Feldman's the half a thousand of cases of liquor which Feldman owned.

Feldman says he went to Costello because it was well-known in the bootlegging trade that Costello had large facilities for engaging in the liquor traffic.

Costello accepted that proposal of Feldman's and Feldman says that he remembers the transaction well because Costello told him later that the liquor had been hijacked and Costello thereupon refused to pay him anything for it.

There were other witnesses who were involved in the bootlegging trade in the period of the 1920s who dealt with Frank Costello at this Lexington Avenue office, none of whom ever saw any sign of real estate activity.

I'm going to mention one more witness at this time, and that witness was a Ms. Helen Sausser.

She was the daughter of a man named Harry Sausser who died in 1926 and who had been associated that the last years of his life with Frank Costello.

Harry Sausser, the daughter testified, was the man who arranged for shipments of liquor from Canada for Costello.

Ms. Sausser was in the Lexington Avenue office as the young lady from time to time.

She testified that this office was the headquarters of the bootlegging operation and that she never saw any suggestion that any other business was conducted there.

She also testified that her father never had anything to do with real estate.

Now, that's particularly significant because Harry Sausser's name was given by Frank Costello to the naturalization authorities as a character witness on the preliminary form.

Frank Costello listed Harry Sausser's occupation as real -- real estate.

Though, according to the daughter, Harry Sausser never had anything to do with real estate and certainly, that bears on specific intent on the question whether Frank Costello sincerely misapprehended an instruction when he wrote real estate down as his own occupation, for he wrote the same down for a man who, according to the testimony, never had any relation to the Koslo Realty Company or any other real estate business.

Chief Justice Earl Warren: How old is she at that time Mr. Spritzer?

Mr. Ralph S. Spritzer: She was about 18, Your Honor.

Chief Justice Earl Warren: 18.

Mr. Ralph S. Spritzer: Yes, sir.

Now, I've spoken thus far of the testimony of some of the Government's witnesses who were engaged in business with Costello during the 1920s.

Let me turn now to Costello's admissions on various occasions.

Mr. Williams has mentioned that in 1938, Costello stated to an Internal Revenue agent that in the 1920s, he was engaged in the liquor business.

In 1938, testifying before federal grand jury, Costello stated that he had operated a bootlegging enterprise until 1926.

Now, Costello made further admissions on three other occasions.

And these further admissions occurred after wiretapping by New York State Authority.

I'm going to refer later to the question whether there was any taint in respect to this evidence.

I'd like to refer -- tell Your Honors first what the substance of this evidence was.

Now, there were admissions on three occasions after 1943.

The first was before a New York State grand jury which was investigating the question of Costello's relationships with Thomas Aurelio in respect to the procurement of a judicial nomination.

Concurrently or at least very shortly after that investigation, there was a second inquiry which was made by the -- before a referee of the Appellate Division of New York County, this arose out of the same matter.

The referee was conducting a proceeding to determine on behalf of the Court whether there were reasons why Thomas Aurelio should be disbarred or suspended from law practice.

Costello made admissions again before New York authorities in a 1947 proceeding conducted by the New York State Liquor Authority.

That was the licensing matter of the date.

Now, on these occasions, Costello again admitted that in the 1920s, he's been a bootlegger that that has been his activity.

He gave some details that he owned trucks for hauling liquor, that he charted boats for that purpose, that the headquarters of the liquor operation was the Lexington Avenue office, that he got liquor from the Canadian sources, that liquor traffic was profitable and he made substantial sums of money from the trade and that the sum of this money made from the liquor business or from gambling he invested in real estate.

Essentially, this testimony confirmed Costello's earlier admissions and the specific testimony are given by the people who had done business with Costello in this instant trial.

Now, weighing this evidence as to regular extensive day-to-day bootlegging operations directed from the Lexington Avenue office against the evidence that the Koslo Realty Company was organized and concurrently made one purchase of property and that's all that had taken place as of the naturalization date.

Then I think it becomes understandable that Justice -- that Judge Magruder concluded that from this record, there was no other conclusion possible but that Costello knowingly misrepresented his occupation.

He could hardly have believed since the Immigration authorities were investigating his moral character that he was at liberty to suppress the occupation which was illegal and which would -- reflected adversely.

And certainly, there could have been no misapprehension, we believe, in a case in which there was this imbalance as between the one activity and the other.

The one activity, as I say, daily far-flung and profitable and the other, at that point, consisting of a single investment.

Chief Justice Earl Warren: Is there any indication that his business grew as time went on, became greater or that he start in that this is a big business?

Mr. Ralph S. Spritzer: The real estate?

Chief Justice Earl Warren: No, no --

Mr. Ralph S. Spritzer: (Voice Overlap) --

Chief Justice Earl Warren: -- I'm talking about the bootlegging business as you have outlined to assess.

That's a rather large proportions of the -- he bought ships and trucks.

Mr. Ralph S. Spritzer: He chartered ships, Your Honor.

Chief Justice Earl Warren: Chartered ships.

Mr. Ralph S. Spritzer: He owned trucks.

Chief Justice Earl Warren: Yes, he owned trucks --

Mr. Ralph S. Spritzer: Yes.

Chief Justice Earl Warren: -- at his operation, quite an operation.

Is there any indication that that accelerated as -- through the years?

Mr. Ralph S. Spritzer: Well, there's this indication that he started out in 1921 with this man Kessler and he was then being paid by the case for trucking and storing the liquor.

He apparently did not have a great deal of capital to begin with because Kessler helped him finance the purchase of the trucks.

The indication that the bootlegging operation became a big one, one indication is that he succeeded when Kessler went to jail to one unit of liquor which was worth two -- a quarter of a million of loan.

So it did become a substantial operation and we have the testimony of people who did business with him that he was known to have large facilities for engaging in this illicit traffic.

Chief Justice Earl Warren: Well, is it true that the -- that the record shows -- I thought I understood Mr. Williams to say so that the -- that his income for 13 years aggregated on a little over $300,000?

Mr. Ralph S. Spritzer: That is a settlement which the Government made after Frank Costello had never filed an income tax return and he had no records.

And this was the settlement.

It was apparently with the Government could prove or dealt.

Chief Justice Earl Warren: Federal Government --

Mr. Ralph S. Spritzer: For 13 years, he had not filed any tax returns.

Justice Potter Stewart: And settled --

Mr. Ralph S. Spritzer: He ultimately settled with the State and Federal Governments.

Justice Potter Stewart: That was with both --

Mr. Ralph S. Spritzer: Now, what -- whether there was income which could never be traced if something which is, of course, not possible to say on this record.

Chief Justice Earl Warren: Well, that -- that -- if that approximated, what -- what is his income was?

It -- it wouldn't indicate a very large operation, would it --

Mr. Ralph S. Spritzer: There are other --

Chief Justice Earl Warren: -- for the income was about $17,000 a year?

I think Mr. Williams said.

And if, as you say, it -- it probably increased through the -- through the years until 1932, he -- it might indicate that he's in -- on a pretty small scale in 1925.

Mr. Ralph S. Spritzer: Certainly, the facts which the witnesses of this trial testified to make it appear that this was a substantial bootlegging operation.

Justice Hugo L. Black: That it was what?

Mr. Ralph S. Spritzer: But -- a substantial bootlegging operation.

And the Court found that that was his -- at least his full time activity.

That the -- there were daily transactions.

Now, we're in the realm of speculation when we attempt to estimate how much money he made from it.

Chief Justice Earl Warren: Who offered that proof?

The Government or Costello?

Mr. Ralph S. Spritzer: The figures as to income?

Chief Justice Earl Warren: Yes.

Mr. Ralph S. Spritzer: Mr. -- Mr. Williams informs me, I believe.

Chief Justice Earl Warren: Who did?

Mr. Ralph S. Spritzer: Correct that the Government offered --

Chief Justice Earl Warren: Government.

Mr. Ralph S. Spritzer: -- this return.

Our case is not, in any event, -- that then upon any finding and there is none as to how large the operation was.

It does depend upon the finding that this was his full time activity, that this was the source of his income.

Justice Felix Frankfurter: Who were the witnesses for the details that you gave us earlier as to (Inaudible) and something or how many cases?

Mr. Ralph S. Spritzer: Oh, the first witness was the man named Kessler for whom Costello originally did this trucking and storing.

Another witness was the man named Feldman who was also a bootlegger and dealt with Costello.

A third witness was Helen Sausser who was the daughter of one of Costello's associates.

There were others, and I, of course, have not the time to attempt to deal with all the -- to summarize all of the testimony.

I -- I summarized that testimony because it shows -- is -- it's the testimony which shows and there's other of like kind that there was a regular business of bootlegging which was conducted through this Lexington Avenue office that people dealt there on a regular or a daily or a weekly basis depending upon the character of the purchases or the character of the arrangements they were making.

Now, I would like to go on to the question whether a portion of the Government's case, as Mr. Williams has argued, was tainted by the wiretapping which the State authorities conducted in 1943.

Now, again, I think I must give the Court some of the background facts.

In 1943, the then New York County District Attorney and also -- still the New York County District Attorney Frank Hogan was investigating suspected criminal activity on the part of Frank Costello.

And Hogan obtained from the New York courts an order authorizing the New York authorities to tap Costello's private unlisted telephone.

For some months thereafter, and I think that begin in May of 1943, transcriptions of all of Costello's telephone calls were made and reported.

In August or September of 1943, there were a number of intercepted communications which seems to disclose a close relationship between Costello and one Thomas Aurelio, a candidate for a Supreme Court justiceship in New York.

District Attorney Hogan testified in the instant trial that in all events, there would have been a grand jury inquiry in relation to Frank Costello and his activities.

He testified further that when this information, this conversation -- these conversations between Mr. Costello and Mr. Aurelio came to his attention, he decided that there should be a grand -- grand jury inquiry sooner rather than later.

And that -- as a matter fact, one should be held immediately in view of the impending election in which Mr. Aurelio was a candidate.

And so in the fall of 1943, there was a grand jury inquiry into the question whether Aurelio's nomination had been influenced by improper or criminal influences.

And shortly thereafter, there was also the Appellate Division inquiry to which I've earlier made reference.

Now, District Attorney Hogan appeared before the grand jury and before the Appellate Division referee.

And on both occasions, he did question Costello at length.

And he did show him.

And he did read into the record numerous transcriptions which had been obtained from this wiretapping.

It does not appear anywhere, however, that any of Costello's 1943 conversations related in anyway to his having been engaged in the bootlegging business some 15 or more years earlier.And District Attorney Hogan testified at the trial of this case that no information of that kind was derived from the wiretappings.

Now, Hogan did go on and asked Costello at the grand jury inquiry and before the Appellate Division referee what his background and what his history were.

Hogan, himself, knew, he tells us, or had reason to believe at least, that Costello had been a bootlegger, he -- that he had word of that from police and other sources.

Now, petitioner does not contend in his brief and he has no basis for contending on the proof that the 1943 wiretapping revealed any information about bootlegging, which incidentally had terminated according to Costello some 17 years earlier in 1926.

As I've said, the District Attorney of New York testified in this case and the District Court found that the New York authorities got no evidence in relation to bootlegging when they tapped the phone in 1943.

And so what Mr. Williams contention really is, is this.

First, he says that the wiretapping was illegal.

Second, he says that the wiretapping precipitated as it did.

A grand jury inquiry precipitated it in the sense that it made a tape place sooner than it otherwise would have.

And third, he says that it was on this occasion, on the occasion of the grand jury inquiry that the admissions in question were made.

Justice Felix Frankfurter: That the what -- he what?

Mr. Ralph S. Spritzer: That the admissions in -- were made on which the Government relied.

Now, certainly, this Court has said in -- in Silverthorne and in the second Nardone case that the policy against the use of illegal or tainted evidence in the federal court is not to be circumvented on the part of law enforcement authorities by substituting for illegal evidence, some other evidence which is immediately derived from that illegal evidence.

But in this case, I point out, there was no use of derivity of evidence because there was no evidence of bootlegging operations obtained by the wiretapping activities of the New York police.

And thus, there is not here the -- the fruit of wiretapping.

There is not the kind of direct or approximate causation which this Court said in the second Nardone case must be present.

Rather, we have the claim of -- kind of claim of attenuated relationship which the Court said in Nardone that would not serve as a basis for applying a rule of exclusion.

Now, petitioner also --

Justice Hugo L. Black: Can I ask you on that connection?

Mr. Ralph S. Spritzer: Yes, sir.

Justice Hugo L. Black: Mr. Williams referred to some evidence on page 23.

Mr. Ralph S. Spritzer: Is that his brief Your Honors are referring to?

Justice Hugo L. Black: 23 in the record.

Mr. Ralph S. Spritzer: Oh.

Justice Hugo L. Black: In which he said that was the result.

That was a statement obtained to the grand jury and the cause of the wiretapping.

Is that what you're talking about now in saying that's not correct?

Mr. Ralph S. Spritzer: I'm sorry, I didn't quite get the reference Your Honor was making to 23.

Justice Hugo L. Black: On page Costello was questioned by the District Attorney Hogan before New York grand jury --

Mr. Ralph S. Spritzer: Yes.

Justice Hugo L. Black: (Voice Overlap) Now, I understood Mr. Williams to say, and I gather that this was -- difference between you as to the facts.

I understood him to say that the record shows that this was obtained or derived from the knowledge which has been acquired by wiretapping.

Mr. Ralph S. Spritzer: I don't think that Mr. Williams stated that and the -- all of the evidence -- I don't think he could've stated that because all of the evidence is --

Justice Hugo L. Black: I thought --

Mr. Ralph S. Spritzer: -- is otherwise.

Justice Hugo L. Black: -- I may misunderstood him but I wrote it down at the time (Voice Overlap) --

Mr. Ralph S. Spritzer: I think what Mr. Williams argument was -- was this.

He can correct me later if I -- if I misinterpret him, of course.

His argument is that but for the wiretapping, the grand jury inquiry wouldn't have been held when it was and if it hadn't been held when it was, then Costello would have been questioned when he was.

And if he hadn't been questioned when he was, then he wouldn't have made these admissions.

Justice Felix Frankfurter: The grand jury approved of the tapping.

Mr. Ralph S. Spritzer: Yes, in a sense.

Justice Felix Frankfurter: But -- but -- I'm --

Mr. Ralph S. Spritzer: Now, there's the most -- there's explicit testimony nowhere contradicted in findings, the testimony of District Attorney Hogan that no evidence of bootlegging was obtained by the New York State wiretapping.

There was also a finding that no earlier wiretapping had produced any evidence of bootlegging activity.

So the argument has to be, on petitioner's behalf, that whatever was brought out at the grand jury inquiry was tainted, if the grand jury inquiry was prompted by wiretapping.

Justice Hugo L. Black: Well, that's quite a different question.

Mr. Ralph S. Spritzer: Yes.

Justice Hugo L. Black: I have not understood that to be the argument.

Justice Felix Frankfurter: Mr. Spritzer, am I right to -- have I rightly -- have I rightly had deposited in my mind the impression that these taps were voluminous by (Voice Overlap) --

Mr. Ralph S. Spritzer: Very.

Very voluminous.

Justice Felix Frankfurter: -- extended over a period?

Mr. Ralph S. Spritzer: A period of months.

Justice Felix Frankfurter: Of months.

At different part time to the days so far as one knows?

Mr. Ralph S. Spritzer: I would suspect that it was continuous.

I would --

Justice Felix Frankfurter: Well, what?

Mr. Ralph S. Spritzer: -- suspect that it was recorded.

Justice Felix Frankfurter: What -- what -- the thought that stirs in my mind is that if it wasn't a bootlegging business and throughout all that period, none of these conversations bore on bootlegging.

Mr. Ralph S. Spritzer: He wasn't in the bootlegging business --

Justice Felix Frankfurter: But when does that --

Mr. Ralph S. Spritzer: -- in that period.

Justice Felix Frankfurter: Oh.

Mr. Ralph S. Spritzer: He got out of the bootlegging business.

He says at one time, he says 1926.

At another time, he said about 1930 --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Ralph S. Spritzer: But in all events, before the repeal of prohibition.

Justice Felix Frankfurter: I see.

Well, that takes care of my --

Mr. Ralph S. Spritzer: Yes.

Justice Felix Frankfurter: Go on.

Unknown Speaker: (Inaudible)

Mr. Ralph S. Spritzer: Pardon.

Unknown Speaker: (Inaudible)

Mr. Ralph S. Spritzer: The Hogan's wiretapping was between May and November of 1943.

Justice Felix Frankfurter: All of us have to (Inaudible).

Mr. Ralph S. Spritzer: Now, there was a claim that there was some tapping back in 1925 by federal authority and the District found on that but they didn't get any evidence.

That they didn't get any -- that those taps didn't yield any evidence.

There was some tapping done, apparently, by federal authorities of this building which Costello occupied some years before.

The only taps which seemed to be seriously an issue in the basis of petitioner's present contention are these 1943 taps, which I have been referring to.

And hawking back just one moment to Justice Black's question, I think that the courts below were perfectly clear as to what petitioner's contention was.

Because the District Court had Record 41 and 42, summarizes that contention and says, "The petitioner's contention would mean --

Justice Hugo L. Black: Page 41?

Mr. Ralph S. Spritzer: 41, bottom of 41.

"Would mean that a man whose telephone had been tapped would be granted immunity for any admissions which he thereafter made, not in the telephone conversations, but in answer to any questions in a later investigation."

That's very bottom of 41 and the top of 42, Your Honor.

Justice Hugo L. Black: I see it.

Mr. Ralph S. Spritzer: Now, petitioner does attempt to buttress this claim of a -- of a cause or relationship by suggesting that Costello might not have been sure.

But what he might not had made some statements on the telephone which had something to do with bootlegging or bore on that, and since he would have this lack of servitude as to what he'd said and what he'd been overheard that he might had been induced by that to speak out and tell the truth when otherwise he wouldn't have done so.

Now, Costello has, of course, has never testified that he felt himself to be under this constraint.

But putting that apart, I suggest that the argument breaks down in all events because Costello was under constraint when Hogan questioned him as to his earlier history because he, Costello, had previously stated on at least two occasions in sworn testimony, once before a Revenue agent and the second time, before a federal grand jury that he had been in the bootlegging business.

And so if there was constraint, it came from Costello's own earlier admissions.

Now, I should like to deal finally with petitioner's request that the Court take into account in its judgement in this case the substantial lapse of time, and it was very substantial, between the date of naturalization, which was 1925, and the date when the Government filed its first denaturalization complaint, 1952.

I think the primary answer to that contention is that Congress has very deliberately decided whether one views its policy in the matter as enlightened or unenlightened.

It is very deliberately decided that there shall be no time bar in respect to the bringing of suits to cancel a certificate of naturalization fraudulently obtained.

That has been the clear meaning, and I put it to Your Honors, of the cancellation provision since 1906.

Now, there has been a succession of changes in the Immigration Act.

But this provision relating to cancellation has remained substantially unchanged for over 50 years.

And the provision as it now reads in the 1952 Act is set out in the Government's brief at pages 3 and 4, the bottom of page 3.

And the Court will note that this cancellation procedure is made specifically applicable by this subsection (i) to any naturalization granted under the provisions of this subchapter and to any naturalization heretofore granted by any court and to all certificates of naturalization and citizenship which may have been issued heretofore by any court or by the Commissioner and so forth.

And as I say, that all inclusive language has been in the statute -- in the statute since 1906.

Justice Hugo L. Black: Do you think that the latter provision of that does not qualify in any way?

I was just looking at it for the first time when it says under the provision of Section 702 of the Nationality Act of 1940 of amendment.

Mr. Ralph S. Spritzer: No.

I think, that is -- those alternatives are to take care of every situation.

In another words, when you take them altogether, the certificate heretofore issued by any court or by the Commissioner or by a designated representative under that provision or by such designated representative under any other act, then one, I think, has all the circumstances in which a prior certificate might have been issued.

Justice William J. Brennan: (Inaudible)

Mr. Ralph S. Spritzer: There has not been, to my knowledge.

There is some legislative history and it is referred to at page 55 of the Government's brief in connection with the 1906 Act which first put this provision into the law.

And that the House report to which we there refer shows that Congress had been concerned -- had become concerned and somewhat alarmed at the gross frauds which in its view were being perpetrated.

The report points out that immigration had become very great in volume, that the number of persons naturalized was immense, that the Bureau of Naturalization, as it was then called, was very small in number and that they had to accept the statements made by the applicant at face value.

And the Congress went on to state that because of the grossness and number of frauds which it felt were being perpetrated that it wanted to do all that the Constitution permitted it to do, to provide that the Attorney General might thereafter cancel any certificate which had been illegally or fraudulently procured in the first instance.

Now, that is the history of the -- of the provision and as I say that is the direct ancestor of the provision that is now in the law and which is set out in our brief.

Justice Hugo L. Black: On page 55 to which you just referred to, right after the quote, you say the Court should not adopt or follow the limitation which Congress had deliberately rejected, has it ever deliberately rejected it?

I believe that's what Justice Brennan wants.

Mr. Ralph S. Spritzer: I think it is clear that Congress deliberately decided in 1906 that it was going to make this provision for cancellation, which it enacted at that time, applicable to certificates issued in the past and not merely to certificates which would thereafter be issued under the 1906 Act.

This Court had that question before it in the Johannessen case and it ruled that the legislation did plainly contemplate that the cancellation provision enacted in 1906 would be retrospective in application and the Court upheld such an application in the Johannessen case.

So, the deliberately rejected language is correct, I think, if in -- in the sense that Congress fully intended to make it applicable as I read the history and as I read the statutory language to any certificate granted at anytime, no matter how remotely in the past.

Now, if there has been no legislation offered to my knowledge, and I have inquired of the general counsel of the service and he has no knowledge of any bill having been introduced at anytime to establish a period of limitations.

So there has been no rejection of -- in that sense of a proposal of a specific proposal to impose a statute of limitations.

Justice Felix Frankfurter: As I remember, (Inaudible) grossly, as I remember, it goes back to more than 50 years ago being shocked as a young assistant U.S. attorney and finding that I think in the case he messed against somebody in this case, the United States, isn't this a case (Inaudible) denaturalization?

Mr. Ralph S. Spritzer: There -- there maybe, Your Honor.

It doesn't come in my mind.

Justice Felix Frankfurter: May I -- is a -- is a noble end statute, I thought, by the bill of (Inaudible) but I think that was done as the result of what you speak of the 1906 Act.

That Act was, I think, followed presidential commission dealing with the whole problem of immigration and naturalization.

Mr. Ralph S. Spritzer: There were extensive --

Justice Felix Frankfurter: The basis of which the Act of 1906 was passed.

Mr. Ralph S. Spritzer: That is correct.

Justice Felix Frankfurter: Because they were coming as to later on, (Inaudible) and the naturalization to a wholesale?

Mr. Ralph S. Spritzer: Yes, that the 1906 Act, as Your Honor correctly recalls, followed a very extensive investigation by a presidential commission in 1905.

Justice Charles E. Whittaker: (Inaudible)

Mr. Ralph S. Spritzer: Well, I -- I certainly think, Your Honor, that in situations where a doctrine of laches is applicable and the Government argues that it is not here applicable in view of the policy declared in the statute and in view of the settled policy of this Court that laches would not be applied to the United States.

But in cases in which that doctrine is applicable, then, certainly, one of the things which an equity court requires to be shown before it holds a person barred by laches is that there has been prejudice.

Now, I would suggest to Your Honor that petitioner has not been prejudiced from the standpoint of adequately presenting his case because the burden and let's say, heavy burden, this Court has stated, of proving convincingly that the representation was false is upon the Government and to the extent that the lapse of time or the deeming of recollections makes the case an unconvincing or an unpersuasive one, then it furnishes the basis for holding against the Government and not a basis for holding in its favor.

Now, I think in this case, Costello could hardly claim in the light of his own repeated admissions that he wasn't substantially engaged in bootlegging.

As for his real estate activity, the Government made a complete search of the records and it put in the evidence of the transactions which took place.

If there were any additional transactions, certainly, the defense would be in a position to put in records of such transactions.

Such evidence does not disappear with the lapse of time.

And Mr. Williams did suggest, the Government didn't put in evidence showing that this Koslo Realty Company didn't do business somewhere else besides New York City.

We'll look back there with Costello, himself, testified in the -- before the New York grand jury and his testimony was made a part of this record that he had done a little real estate in New York in Bronx County.

And so the federal agents, who investigated this matter, went through the entire records of New York in Bronx County over the entire period of time involved no small task, something which was necessary because they apparently had no access to any of the petitioner's records if any still existed.

In addition, it checked the two other principle boroughs of New York City, Brooklyn and Queens.

So, the -- the Government did investigate every lead fully.

There's no suggestion that the defense couldn't have produced further evidence if they're -- if it thought that this investigation had been in any way deficient.

However, the defense offered no evidence.

I suggest the only additional evidence which could have had some significance in this case is if Frank Costello, himself, had been prepared to testify that for some inexplicable reason, he didn't understand what was meant three times by the directions "state your present occupation".

But if -- if there could've been some special explanation, some alibi, some affirmative defense, as it were, based upon his lack of understanding, he's not understanding these words the way any ordinary person would.

Certainly, he was not prejudiced in -- by the lapse time in offering such evidence because he was still here to testify.

Now, I would like to comment briefly, though I -- I don't think it is a question that the Court had any occasion to reach upon the repeated statement that the Government knew about all this all the time.

I suppose it all depends on whether one views the Government as a unit in which every finger and toe knows all the time what every other finger and toe and toe is doing.

Now, it's certainly true that the United States Attorney in the Southern District of New York in 1925 had some reason to believe that Costello was engaged in bootlegging or he wouldn't procured an indictment.

It does not follow that the Immigration Service which was then part of the Department of Labor and was administering records which involved literally millions of applicants for naturalization and naturalized citizens, immediately had a light to go in its office when the U.S. Attorney brought a proceeding against one Frank Costello.

The only way in which this could've been correlated would've been if the United States Attorney found out in the course of his investigation that Costello was naturalized rather than natural born, if it occurred to him that he might have misrepresented his occupation and if he had brought that to the attention of the Immigration Service.

That is -- is not an automatic kind of correlation.

And it is a difficult matter.

I think Your Honor should appreciate to post audit, as it were, hundreds of thousands of affidavits and applications which have been filed, which have been acted upon in the certificates issued.

As a matter of fact, the Immigration Service does not attempt to conduct a continuing surveillance of persons who have been naturalized, when fact do come to its attention which makes it believe that there's basis for charging a fraud than it does proceed.

This record does not show when the Immigration Service first had these apparent discrepancies called to its attention.

Petitioner's counsel did make an effort to find that out in -- in what has been referred to as the prior trial, the one which the case which came up here ultimately on the affidavit of good cause point.

And that record, of course, since that case came to this Court is part of the Court's files and the Court has stated, I believe it was in United States against Pink that it was at liberty to look at a record in a prior case which had come to this Court.

And so I called to Your Honors' attention that the attorney who prepared the Government's case and who signed the affidavit of good cause for the institution of this case was questioned at the 1952 trial as to when these matters had first come to the service's attention.

And in answer to such a question, he stated, and this is at page 48 of the earlier Costello case, "Frank Costello was arrested for bootlegging activities in December of 1925 and subsequently indicted in connection with that arrest.

A trial ensued and a jury disagreement resulted as to Frank Costello."

I -- I interpolate parenthetically here that Frank Costello was one of 30 odd defendants in that bootlegging case.

Now, resuming the quote "So, certainly, the United States Attorney in the Southern District had some information as to activities on the part of Frank Costello other than real estate at that time."

So far as I know, the Immigration and Naturalization Service had no knowledge until 1947 concerning such activities or that the Frank Costello so arrested and tried was the Frank Costello naturalized in September 1925.

Chief Justice Earl Warren: Mr. Spritzer, would you mind addressing yourself for a moment to the -- to what Mr. Williams call the dilemma of the Government on the question of -- of whether he could be called as a witness in the State, if he -- in this kind of a case and if he could, then it was the -- would have been the duty of the Government to call him to prove certain things and not have the inferences as the Court of Appeals said that if these things were best known to him and he could've brought them or on the other hand if --

Mr. Ralph S. Spritzer: Yes.

Chief Justice Earl Warren: -- if he couldn't be the situation had been?

Mr. Ralph S. Spritzer: Well, I -- I think in the first instance that it is perfectly plain that the District Court regarded the Government's affirmative case made out by its own witnesses, people who had done business with Costello, and has made out by Costello's extrajudicial admissions as a complete and convincing case and that the District Court placed no reliance whatever upon the failure of Costello to testify.

I do not read the Court of Appeals' opinion to say, at any point, that it is necessary to make such an inference in order to sustain the District Court's judgment.

The Court of Appeals does say that it believes that the District Court might indeed have gone further than it did and made an inference based upon his silence.

But the Court of Appeals finds in full agreement as I read its opinion that the District Court's findings were the only findings possible on this record.

And so, I think, it has placed no reliance from the standpoint of finding the evidence sufficient to justify affirmance on the fact that Costello did not testify.

Now, I'd refer to the fact that Costello if might have testified or might have offered evidence on this point or that if he thought there were additional evidence.

I'm not saying, when I say that, that the Government has here made out in its case or relied on inferences to be drawn from silence.

I'm merely making the point, and I think it'd be true in any criminal case that there are certain matters which the defense may offer if it thinks it can offer anything more just as a defendant in a criminal case can offer an alibi that he wasn't aware the prosecution's witnesses placed him at a given time.

So Costello could've testified if he thought he was -- that the facts justify that he didn't understand the question.

But I think the Government has made out a --

Justice William O. Douglas: (Inaudible)

Mr. Ralph S. Spritzer: I assume the Government could've called him in all events, Your Honor, under this Court's Wah Suey or Bilokumsky against Tod cases.

Unknown Speaker: (Inaudible)

Mr. Ralph S. Spritzer: Well, I --I'd --

Justice William O. Douglas: (Inaudible)

Mr. Ralph S. Spritzer: The inference there was based upon his failure to answer a question as I recall.

Wah Suey was called in a deportation case.

And evidence was offered the day a Dr. Wah Suey had written a great many books which advocated revolution.

He was called to the stand and he was asked whether he was the author of those books.

And -- and he remained silent.

And this Court stated in that case that since he did not base his silence upon any claim of privilege that an inference could be drawn.

I'm -- I don't think there's necessity in this case for this Court to deal with the question whether inference is ought to be drawn from silence in a denaturalization case because I don't think that the lower court did or that the Court of Appeals' opinion rests on any such inference.

But it seems to me if the question is here, then the Court would has, as I read these unanimous opinions of -- I guess Justice Brandeis wrote for the Court in Bilokumsky and Justice Stone in Wah Suey.

Those opinions do state that since it is a civil proceeding, an inference from silence maybe drawn, absent and assertion of privilege by the defendant in proceeding.

Justice William O. Douglas: Of course, that's pretty difficult to reconcile with such cases as the Boyd case and other cases involving the exaction of monetary penalties for failing to make a tax return.Those are all under the Fifth Amendment thereto.

Mr. Ralph S. Spritzer: Those -- the Wah Suey and the Bilokumsky cases so far as I recall at the moment are the only cases in the field of deportation and -- and denaturalization.

And as I say, I -- I read then as indicating that inferences could be drawn from silence but we have not made any full rest argument.

I don't know it would make any argument on that score --

Justice William O. Douglas: I don't think in --

Mr. Ralph S. Spritzer: -- in the brief --

Justice William O. Douglas: (Voice Overlap) --

Mr. Ralph S. Spritzer: -- because we don't view this judgment as raising any such problem for the Court's consideration.

Chief Justice Earl Warren: Mr. Williams.

Argument of Edward Bennett Williams

Mr. Edward Bennett Williams: If the Court please.

Question was addressed to counsel during his argument as to the volume of real estate transactions that were engaged in by the petitioner prior to his signing the application for naturalization.

The record shows that the realty corporation was formed in October 1924.

And the record also shows that a number of real estate transactions were engaged in.

But contrary to what counsel said to the Court through inadvertence, the record is quite clear that there was a very major transaction engaged in prior to the first application, the preliminary application for naturalization because, if Your Honors will look at the record at page 24, you will see that the Westin Department building was purchased and that the recollection of the petitioner as expressed in one hearing was that it was purchased for $125,000 and that that transaction was entered into, as the record shows, in the month of December 1924 and that the apartment was sold at the same time as the closing on the purchase was entered into and that a profit was realized to $25,000 by the petitioner himself notwithstanding the fact that he had a partner in the transaction.

So that there was a substantial real estate transaction engaged in by this corporation in the terms of reference of the time at which it was consummated some 35 years ago.

And the profit was realized of $25,000 prior to the preliminary application made on May 1 and this was a major portion of the petitioner's income if you'll look at the evidence which the Government offer itself on his income over the 13 years prior to 1932.

Also, if the Court please, the record shows that this was just not an isolated transaction, that it was followed in sequence by other transactions, one of which was many times greater than this when petitioner, through his corporation, purchased some properties that he erected some major apartment buildings within a few months after his naturalization.

Now --

Justice William O. Douglas: But was there any -- any question of the forms at that time or subsequently concerning the sources of income?

Mr. Edward Bennett Williams: No, sir.

There was none.

There was no question like that, Mr. Justice Douglas.

I might say to you that contrary to the record on his real estate transactions which are most specific, the testimony with respect to the bootleg -- leg transactions do not specify any transactions at all in the year 1925.

There were some witnesses who testified 35 years almost after the facts which they purported to relate.

Their recollections as you will see from a first reanalysis of the testimony was deemed in vague and most nebulous and attenuated with respect to any of these transactions.

But Mr. Kessler testified only with respect to transactions before 1923.

Mr. Feldman testified only to transactions before Mr. Kessler's conviction in 1923.

Mr. McCloud testified only with respect to one Harry Sausser.

Mr. Kelly, another witness testified only with respect to a transaction about whisky aboard a ship called Vinson A. White (ph) and his testimony regarding the petitioner was that he may have overheard this conversation which he had with one spill of coffee.

The testimony of Helen Sausser, the daughter of the deceased Harry Sausser, is most vague and nebulous with respect to the time at which these alleged conversations that she heard between her deceased father and the petitioner took place.

They were -- she was dipping back some 35 years.

So that the record is much clearer from the Government's own proof with respect to the petitioner's occupation vis-à-vis real estate transactions which is a matter of record than it was with respect to any bootleg operations.

Now, on this question, if the Court please, I think that the Government would interpolate the question to prefix the word "principal" or -- or they would add an S and expect that the petitioner should've revealed all of his occupations that wasn't asked.

There was no question directed to him with respect to whether he had done anything which smack of criminality or which partook of immoral conduct.

This wasn't designed to elicit that information and no question was propounded which was.

On the question of the wiretaps, I would like to restate my position because I'm not sure that counsel has accurately paraphrased it to the Court.

My position on that, if the Court please, is that the lower court which considered these wiretaps found in excluding them and holding them to be tainted in the record of the first case of which counsel referred at page 103 found this.

It appears to me that the use of these transcripts vitiated the alleged admiss -- admissions in the aforementioned hearings by the defendant from the standpoint of their use as evidenced in this Court because all of that testimony must be deemed to comprise parts of a continuous process in which all of these records became affected by this illegality.

The Court of Appeals agreed with the fact that the admissions were elicited by the use of the wiretap records, although saying that the wiretapped records could've gone in because they were state wiretaps.

The Court of Appeals said this, "These transcripts suggested that state officers had indeed tapped the defendant's phone in 1943 as a result of which he testified before the three bodies to facts which he might not otherwise have revealed."

And the record here shows that the first admission that he made with respect to bootlegging came after he was confronted with a wiretap of a conversation between him and one O'Connell who was a co-indictee with him in 1925.

That comes at page 102 of the record.

When he's confronted with that, he makes his first admission.

Justice William J. Brennan: (Inaudible)

Mr. Edward Bennett Williams: The Court -- the -- the Circuit Court in this proceeding, Mr. Justice Brennan, did not discuss at although that question was raised very vigorously by us in that Court.

But they do not discuss this question.

Justice William J. Brennan: (Inaudible)

Mr. Edward Bennett Williams: I think they do for this reason.

I think if the argument which I made early today with respect to the order of dismissal by Judge McGohey pursuant to the mandate of this Court has -- has any effect, if -- if we reject the argument that I make on res judicata and this Court says that he did not reach the merits and that this did not reach the merits.

If the Government would contend that, it may not contend it certainly that it does not have a binding effect with respect to the effect of these wiretap conversations on the admissions that were elicited from this petitioner because both the lower court and the Court of Appeals unequivocally found that these were the things which produced though -- the admissions which were relied upon by the trial court in its findings of fact and by the Appeals Court in affirming those findings.