Earl Warren: Number 59, Costello versus United States. Mr. Williams.
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.
Potter Stewart: On the theory that he was down there violating the Eighteenth Amendment of the (Voice Overlap) --
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.
Potter Stewart: He's alleged to have made these material misrepresentations or this material misrepresentation on three different occasions, is it not?
Edward Bennett Williams: Yes, sir. He's alleged to have made --
Potter Stewart: When -- when were they?
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 --
Potter Stewart: (Inaudible) that real estate transaction in relation to that (Inaudible)?
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.
Potter Stewart: The sale?
Edward Bennett Williams: And the sale was on June 22, 1925 which would have been --
Potter Stewart: Subsequent.
Edward Bennett Williams: -- subsequent to the first misrepresentation alleged by the Government.
Potter Stewart: Right. Then when was the second alleged (Voice Overlap) --
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 --
Potter Stewart: June.
Edward Bennett Williams: -- of 1925.
Potter Stewart: 1925.
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.
Earl Warren: Were there any questions comparable to that in -- in this proceeding in 1925, Mr. Williams?
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 --
William J. Brennan, Jr.: (Inaudible)
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 --
Earl Warren: That was in what case?
Edward Bennett Williams: That was in this case, Mr. Chief Justice --
Earl Warren: Oh, yes.
Edward Bennett Williams: -- in the Second Circuit before it came here --
Earl Warren: Yes.
Edward Bennett Williams: -- the first time in 1957.
Earl Warren: Yes.
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 --
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?
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 --
Felix Frankfurter: Is that the case here?
Edward Bennett Williams: -- function --
Felix Frankfurter: Is that the case here?
Edward Bennett Williams: I think it did that. Yes, sir.
Felix Frankfurter: What inference that the -- Judge Dawson rejected the Court of Appeals to --
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.
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?
Edward Bennett Williams: We don't have an inference being drawn from viva voce testimony of the petitioner or any other witnesses.
Felix Frankfurter: Or even the meaning of a doctrine?
Edward Bennett Williams: That's right.
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.
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.
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?
Edward Bennett Williams: Yes, sir.
Felix Frankfurter: Which one?
Edward Bennett Williams: Well, they rejected his finding that --
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.
Edward Bennett Williams: Well, he found -- he may rejected finding four, Mr. Justice Frankfurter, at page 28.
Felix Frankfurter: Well, they didn't reject that.
Edward Bennett Williams: I understood --
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.
Edward Bennett Williams: I understood -- I understand them to reject --
Felix Frankfurter: But if they reject to that then they'd be rejecting something to your favor.
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.
Felix Frankfurter: Well, insofar they did that as I say, that's -- you got no grievance on that story.
Edward Bennett Williams: No, I -- no. I understood you to ask me as to the finding --
Felix Frankfurter: Well, I'm -- well, I'm --
Edward Bennett Williams: -- that they rejected it.
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?
Edward Bennett Williams: It wasn't --
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.
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.
Felix Frankfurter: Did he say wouldn't make such a finding or that -- that it's inadmissible for him to make it?
Edward Bennett Williams: He said that he would not draw an inference from the petitioner's silence of (Voice Overlap) --
Felix Frankfurter: But he didn't say, "I -- I refuse to draw one because it would not be a legitimate instance." Did he?
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."
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."
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) --
Edward Bennett Williams: I think it's a -- I think it's fair --
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.
Edward Bennett Williams: I think that's what he meant.
Felix Frankfurter: The defendant has a right not to take the stand if he doesn't want to.
Edward Bennett Williams: I think in the fairness --
Felix Frankfurter: The Government doesn't ask that he be put on the witness stand and therefore, not confronted with that problem?
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.
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).
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.
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)
William J. Brennan, Jr.: (Inaudible)
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.
William J. Brennan, Jr.: (Inaudible)
Edward Bennett Williams: I don't know.
William J. Brennan, Jr.: (Inaudible)
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)
Speaker: No, I -- I would prefer to have the question phrased more happily --
Felix Frankfurter: Right. Truthfully.
Speaker: -- more happily from the petitioner's point of view.
Felix Frankfurter: He would be entitled to that.
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 --
Earl Warren: Just when was that with relation to these proceedings we've been talking about. What day and -- what day in --
Edward Bennett Williams: He was arrested in December.
Earl Warren: -- (Voice Overlap) --
Edward Bennett Williams: He was arrested in 1925, December.
Earl Warren: Oh, this is a --
Edward Bennett Williams: He was indicted --
Earl Warren: Yes.
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 --
William J. Brennan, Jr.: (Inaudible)
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.
William J. Brennan, Jr.: (Inaudible)
Edward Bennett Williams: 1925, September. Now --
William J. Brennan, Jr.: (Inaudible)
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.
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?
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.
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?
Edward Bennett Williams: That's certainly so, Mr. Justice Stewart, and I'm hopeful that this will be the precedent breaker.
Felix Frankfurter: What you would be doing is to do what the Congress does when it wants to have a statute (Inaudible)?
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.
Felix Frankfurter: If I may -- if I may, I'd like to encourage you to make that speech to the Senate Committee on leadership.
Edward Bennett Williams: I don't know that I'll ever be given that opportunity, Mr. Justice Frankfurter.
Felix Frankfurter: Well, you don't wait already, just give him up.
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.
Earl Warren: Mr. Spritzer.
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.
Hugo L. Black: May I ask you a question?
Ralph S.Spritzer: Yes.
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?
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 --
William J. Brennan, Jr.: 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?
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.
William J. Brennan, Jr.: Well, does it show at least that much that he was incidentally engaged?
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.
Hugo L. Black: Would that make any difference?
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.
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?
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 --
Felix Frankfurter: In one of the (Voice Overlap) --
Ralph S.Spritzer: -- in question.
Felix Frankfurter: -- common (Inaudible)?
Ralph S.Spritzer: Pardon?
Felix Frankfurter: He, being one of common in (Inaudible)?
Ralph S.Spritzer: He said he had a 50% interest in the Koslo Company. Now, I did want to --
Earl Warren: Mr. Spritzer, I --
Ralph S.Spritzer: Yes.
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?
Ralph S.Spritzer: Well, he certainly had -- if he made a good purchase, he had a potential source of income.
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?
Ralph S.Spritzer: Yes.
Earl Warren: Now, if he made a good buy, he'd made some money, hadn't he?
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.
Earl Warren: Yes, but he did in that --
Ralph S.Spritzer: The company had made an investment on the background --
Earl Warren: Well, he did in that same year.
Ralph S.Spritzer: He did later that year.
Earl Warren: Yes.
Ralph S.Spritzer: Yes.
Speaker: (Inaudible)
Earl Warren: Yes, we'll recess.