Costello v. United States

PETITIONER: Costello
RESPONDENT: United States
LOCATION: John H. Kerr Dam and Reservoir

DOCKET NO.: 59
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 365 US 265 (1961)
ARGUED: Dec 12, 1960
DECIDED: Feb 20, 1961

Facts of the case

Question

Media for Costello v. United States

Audio Transcription for Oral Argument - December 12, 1960 (Part 2) in Costello v. United States

Audio Transcription for Oral Argument - December 12, 1960 (Part 1) in Costello v. United States

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?