Costello v. United States, 365 U.S. 265 (1961)
Costello v. United States
No. 59
Argued December 12, 1960
Decided February 20, 1961
365 U.S. 265
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Syllabus
Petitioner was naturalized in 1925, and proceedings were instituted in 1952 to revoke his citizenship because of fraudulent procurement. That proceeding was dismissed because the Government had failed to file an affidavit of good cause, and the District Court declined to specify that the dismissal was "without prejudice." A new proceeding to revoke his citizenship was instituted in 1958 under § 340(a) of the Immigration and Nationality Act of 1952, on the ground that his naturalization was procured by concealment of a material fact and by willful misrepresentation. In applying for naturalization, petitioner had sworn that his occupation was "real estate." After considering the evidence, the District Court found that this was "willful misrepresentation and fraud," and that his true occupation was bootlegging, and it revoked his citizenship.
Held: the judgment is affirmed. Pp. 266-288.
1. On the record in this case, the finding that petitioner willfully misrepresented his occupation is supported by clear, unequivocal and convincing evidence -- the standard of proof required of the Government in cases such as this. Pp. 269-278.
(a) Decisions both before and after repeal of the Eighteenth Amendment indicate that a known bootlegger probably would not have been admitted to citizenship in 1925. Pp. 270-272.
(b) However "occupation" be defined, whether in terms of primary source of income, expenditure of time and effort, or how the petitioner himself viewed his occupation, the evidence supports the conclusion that real estate was not his occupation, and that he was, in fact, a large-scale bootlegger. Pp. 272-275.
(c) There is evidence that petitioner invested his illicit earnings in real estate in the hope of profit; but he was not deriving his principal income from the real estate business, spending any appreciable time conducting such business, or making it his central business concern. Pp. 275-277.
(d) The Government’s proofs show not only that the petitioner’s statements were factually incorrect, but also that they were willfully false. P. 277.
(e) The conclusion that petitioner’s representations as to his occupation were willfully false is reached without reliance upon any inference from his failure to take the stand in this proceeding and testify in his own behalf. Pp. 277-278.
2. None of petitioner’s admissions as to his true occupation at the time of his naturalization was so tainted by wiretapping as to require its exclusion from evidence in the proceedings for revocation of his citizenship. Pp. 278-280.
3. In the circumstances of this case, the lapse of 27 years from the time of petitioner’s naturalization to the time of the filing in 1952 of the Government’s first denaturalization complaint did not bar the Government from instituting this proceeding to revoke his citizenship. Pp. 281-284.
4. Dismissal of the first denaturalization proceeding for failure to file an affidavit of good cause was a dismissal "for lack of jurisdiction," within the meaning of Rule 41(b) of the Federal Rules of Civil Procedure. Therefore, the failure of the District Court to specify that the dismissal was "without prejudice" to the filing of a new complaint did not bar the second denaturalization proceeding under that Rule. Pp. 284-288.
275 F.2d 355 affirmed.