Nowak v. United States

PETITIONER:Nowak
RESPONDENT:United States
LOCATION:Philadelphia Board of Public Education

DOCKET NO.: 72
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 356 US 660 (1958)
ARGUED: Jan 28, 1958
DECIDED: May 26, 1958

Facts of the case

Question

Audio Transcription for Oral Argument – January 28, 1958 in Nowak v. United States

Earl Warren:

Number 72 and 73, Stanislaw Nowak versus United States of America and Rebecca Maisenberg verus United States of America.

Mr. Goodman.

Ernest Goodman:

May it please the Court.

These two cases are denaturalization cases.

Both of them involved two aliens who were naturalized in the year 1938 at Detroit and with respect to both of them, the cases were tried in the 1950s in Detroit before the same district judge and in 1955 the opinions and judgments directing the cancellation of their citizenship were issued by the District Court.

In both cases, it is the Government’s claim that at the time and prior to the naturalization of Mr. Nowak and Mrs. Maisenberg, they have been and were members of the Communist Party which the Government charge was an organization advocating the violent overthrow of the Government and that they knew and accrue thereof.

The pleadings, facts and issues thus in both cases are the same, substantially the same with one exception which I will mention.

In the Nowak case, the complaint was filed by the Government under the 1940 Nationality Act and under that Act and pursuant to its provisions, the Government charged that Mr. Nowak had obtained his citizenship through illegal procurement and by fraud.

The Maisenberg case was brought by the Government under the 1952 Immigration and Naturalization Act and pursuant to the provisions of that Act, the complaint charged concealment and misrepresentation of material fact.

For the purposes of the argument and because both parties have dealt at length with the issues in the case in the Nowak briefs, I would like to, with the Court’s permission, argue the Nowak case until — at least until the Court would like to have me mention something concerning the other case.

I think that argument will dispose of as far as I’m concerned the major issues that are involved on this appeal.

The facts in the Nowak case briefly and insofar as they are material here are as follows.

Nowak was born in 1903 in Poland.

He came to this country at the age of 10, 1913.

He has lived here ever since.

In 1937 at Detroit, he filed his preliminary form for naturalization as well — later that year his petition for naturalization.

And following several interrogations by the immigration people and after some investigation, in June of 1938 at Detroit he was granted his citizenship upon taking his oath in open court.

Within six months or after, in November 1938, he was elected from his district to the state senate for the State of Michigan and was thereafter elected for five consecutive two-year terms until 1948.

In December of 1942 which was about four years after he had been granted his naturalization.

The Government obtained from the grand jury in the District Court of Detroit an indictment — a criminal indictment against Mr. Nowak, charging him with having falsified during the course of his naturalization proceedings swearing falsely in there.

The Government at that time contended the indictment that he had concealed the fact that he was a member of the Communist Party, an organization which at that time the indictment charge was one which thought opposition to organized Government.

Several months later in February 1943, the Government of its own motion dismissed the indictment and it was never reinstated.

Approximately 10 years later, December the 23rd, 1952, two days before the new 1952 Immigration and Naturalization Act went into effect.

This complaint was filed.

The complaint was filed accompanied by an affidavit of a Ruben Spicer which set forth what is alleged to be good cause for the institution of the proceedings and I will refer to the affidavit in my argument on that point.

But the complaint charged both illegality and fraud by virtue of alleged membership in the Communist Party, an organization which the complaint at that time charged was one which advocated the violent overthrow of the Government and that he had knowledge of and accrued of that advocacy.

The case was tried.

The Government presented, I believe, 12 witnesses.

Two of whom testified concerning a claim of the Government that he had falsified by denying membership in the Communist Party orally.

However, the District Court, in its opinion, found that evidence to be insufficient and — and dismissed that allegation of fraud.

Ernest Goodman:

The other witnesses testified as to the aims and objectives of the Communist Party, introduced a number of books and literature which however were not attributed to the defendant but in support of the so-called expert’s opinion that they helped to fortify the expert’s opinion that the Communist Party did advocate violence to overthrow the Government.

A number of other witnesses testified that Mr. Nowak had been a member of the Communist Party, had attended meetings of the Communist Party and attributed certain statements to him particularly three of the greatest importance in the Government’s case which it is contended by the Government and was found by the trial court to constitute advocacy on his part or at least knowledge of the advocacy by the Communist Party of violent overthrow of the Government and the court’s opinion found that his citizenship should be canceled on the ground of both illegality and fraud.

I would like to argue insofar as I am to be able to the course of my argument following three points.

First, because of maybe the jurisdictional question one which the Court may want to hear argument that the affidavit of good cause is insufficient in this case under the ruling of this Court in the Zucca decision.

Secondly, I would like to argue that their — that the charge of illegal procurement under the 1940 Act has no support and in any event is outlawed under the principle of res judicata.

Third, I would like to argue that the claim of fraud in the theory at least on which it is stated by the Government in this case and upon which the evidence was produced has not been proved.

First, with respect to the affidavit, in order to discuss that I — I want to just briefly refer to the Zucca opinion which this Court found that — two things as I read the opinion at least, one that an affidavit was a prerequisite to the initiation of a proceeding of this kind.

There being no affidavit in that case of any kind.The Court — the majority of opinion held that the complaint should have been dismissed.

And secondly, an ancillary holding in the opinion was that the verification of the complaint itself by the assistant district attorney was — which was based upon the examination of the files in that case was insufficient and did not take the place of the affidavit which this Court found was necessary to the maintenance of the proceeding.

Now, the Spicer affidavit that is the affidavit signed by Ruben Spicer in this case which is the same practically in both Maisenberg and the Nowak case and appears likewise and many of the other decided cases the affidavit by Spicer is an affidavit by the attorney for the Immigration and Naturalization Service and the affidavit states that it is based upon an examination of the files of the service.

This morning, I had an opportunity of checking the records and brief in the Zucca case, so this point is not in our brief.

But in checking the — the complaint in the Zucca opinion and comparing it in detail with the affidavit of Mr. Spicer in this case, the allegations are essentially the same and the language is almost similar, many of the paragraphs are exactly the like — alike in specific language and specific allusions and with respect to the formulations.

For all practical purposes, a comparison of the complaint in the Zucca case and the Spicer affidavit in this case, I think we’ll make it very clear that the affidavits or the complaint and the affidavit are practically the same and the comparison of the affidavits in both the cases before the Court will indicate that it is essentially a form of affidavit or in the Zucca case a complaint.

So what we have here in connection with this issue as we see it is a question as to whether a sworn complaint is filed in the Zucca case which was held to be insufficient by the court there where treated in the same form as an affidavit attached to the complaint would be sufficient wherein both instances it’s based solely upon examination of the files and records.

Now in order to state our position on it, I would like to first indicate the extent to which I think the Government mistakes our position in its brief.

They’ve state our position I think because it makes it much easier to justify its own position, but their position argued for by the Government in its brief is not our position.

But the Government there claims that what we assert and what we seek this Court to do is that we claim they say that the affidavit must be “A product of eyewitness observation” that’s in the Government’s brief on page 47.

We make no such claim or do we think that the Court would be justified in holding the Government to any such position.Our position as argued in our brief and as it is here is that the affidavit that’s required by the Government before they institute a naturalization proceeding is one which is similar in nature, two, an affidavit which is required in order to obtain a search warrant or one that’s required in order to justify expedition proceeding.

Many decisions in both areas have pretty well made clear that in — at least those fields, an affidavit which is required there is one which not need not be based upon eyewitness observation.

I think if any rule is to be applied to them.

It’s perhaps the one that’s used by Wigmore extensively in his discussion of evidence.

That is — there must be some circumstantial probability of the trustworthiness of the evidence set forth in the affidavit.

I don’t quote that from any decision of the Court but I think generally that is what the cases hold.

And would — I think the rule that might well apply.

In this Court’s decision in Zucca, you mentioned in the majority opinion, an opinion issued shortly after the 1906 Act was passed by then Attorney General Bonaparte which held or which was an opinion stating that a request for the institution of denaturalization proceedings requested from the department head in the form of an affidavit was sufficient to justify the institution of those proceeding.

In its brief, the Government here, not only mention that particular opinion but at page 53 of its brief, sets forth the letter from Mr. Strauss to the Attorney General which he sets forth in detail, the nature of the evidence presented as good cause for the institution of the denaturalization proceeding.

Now, if the Court will examine the Strauss letter, it is clear, I think, from the letter itself that what was submitted to the Attorney General as good cause was not a hearsay statement based upon examination of file such as its present in the Spicer affidavit.

Rather what was present there was a — a group of authenticated documents, copies of which were attached and of duly authenticated which set forth precisely and in detail and in the form of substantive original evidence.

The nature of the claim presented to the Attorney General that the alien in that case was not — was over the age of 18 when he applied for a citizenship contrary to the statute.

So that if one were to compare that particular proceeding with the Spicer proceeding, one would have to say that Spicer should have if his affidavit were to be based upon the same kind of evidence present in the other case, some original documentation or evidence which would have supported the ultimate conclusions which this affidavit consisted at.

Ernest Goodman:

I further call the Court’s attention on this respect as an illustration of the kind of an affidavit which I think the Government ought to be compelled to file if it wants to institute these proceedings.

The case of Brinegar versus the United States, this is cited not in our brief but in the Government’s brief on page 65.

This deals with search and seizure not with denaturalization proceedings but I think the principle is well-stated there because in that case, if the Government relies on — on the assumption that sufficient — an affidavit is sufficient which is based upon hearsay or at least none eyewitness observation, the Court — this Court said that the officers who made the search and seizure following an arrest without a search warrant in that case had personal knowledge and that search and seizure in that case were sufficiently based upon the personal knowledge of the officer.

But in dealing generally with the problems of officers in connection with searches and seizures, they — they make the observation that in dealing with probable cost we deal with probabilities.

And here where a good cause which is tantamount to probable cost I — I assume we also can deal with probabilities.

That does not mean here’s a conclusion by somebody who examined the file but it deals more with — it deals with some basic facts, some basic information, some records which the court can examine at the outset of the case and determine from its own observation, on the basis of his own exercise of his own legal judgment whether in fact the material upon which the Government relies for good cause justifies the — the conclusion that it is a good cause.

Felix Frankfurter:

May I ask you Mr. Goodman whether affidavits by persons whose statements were in the Department of Justice, filed on the basis of which the officer made the affidavit would have satisfied your criteria, your demands.

Ernest Goodman:

If Your Honor means that —

Felix Frankfurter:

I mean in this very case.

Ernest Goodman:

If Your Honor means that if the affidavits filed with the Department of Justice had been attached — copies had been attached to Mr. Spicer’s affidavit.

Felix Frankfurter:

Yes.

Ernest Goodman:

Yes, I think that would have been sufficient because I think the criterion then would be.

Could the court by examining the basic evidence which Mr. Spicer apparently examined, in examining this evidence, have reached the same conclusion that Mr. Spicer did as an illustration.

The Government in this case and its complaint charged not only the allegations I have mentioned but another one.

They charge that Mr. Nowak at the time he became a citizen oath his allegiance to the Soviet Union and that, however, because of his conduct in subsequent action, he did not disavowed that allegiance and maintained its allegiance.

Now no evidence was ever produced on that of any kind or any claim made further — except what’s in the affidavit, whether there was any basis for that statement in Mr. Spicer’s affidavit or not, nobody knows merely his conclusion.

It may well be that there’s nothing in the Government’s file which would permit the making of such a statement yet it appeared and no court could determine whether it was justified or not or gave rise to good cause or not unless you were to accept Mr. Spicer’s affidavit that he examined the files and to him it appears to be so.

Felix Frankfurter:

It ought not to be necessary to assign from time to time it is to say that questions don’t imply any — any argument or agreement or conclusion so I’d like to put to you these questions.

What this gets down to is that an affidavit by a Government official that I have examined the file and I truthfully give the following hearsay and on best evident, testimony as to what is contained in the — in the file of the Department of Justice doesn’t carry that weight which would justify conclusion that he did that there are the documents on trial which he abstracted or which he — derivative (Inaudible) — which he do the meaning and that he fairly do the meaning of things in the file, isn’t that right?

That where it gets down to, I’m not saying you’re not right.

Ernest Goodman:

No I —

Felix Frankfurter:

Is that true?

Is that —

Ernest Goodman:

I think that is true except I break — break it down to two points.

The Court in determining whether the affidavit is sufficient, it must first have the facts to decide whether there are facts claimed to be available then the conclusions to be drawn from those facts must be conclusions that the court may draw.

In this case, the Court is in a position to determine neither one nor the other.

Must accept (Voice Overlap) —

Felix Frankfurter:

No.

Except that it has the assurance of a person carrying the authority and from my point of view implied the responsibility of the authority that I had faithfully given the brief in abstract, the summary for what I find is a fact.

Ernest Goodman:

Have that —

Felix Frankfurter:

That — that is there, isn’t it?

And therefore the attacks that you make or the inadequacy that you find is that it isn’t enough to assume the Government official who makes such an affidavit and authorized by some Chief of the Bureau, whatever it’s called, Attorney General, Deputy General.

A, that he’s confident to make such a summary of what is in the file, and B, that he’s honest as well as competent.

That A — I should say that first that he is a man of — that he’s not corrupt, that he’s trying to be honest in summarizing what is in the files and B that he is capable of making such a summary.

That’s true isn’t it?

That’s where it got started.

Ernest Goodman:

His subs — his conclusions are substituted for the conclusions that the court would otherwise have to make himself from the fact.

Of —

Felix Frankfurter:

On the question of whether he has a good cause.

Ernest Goodman:

Yes, sir.

Now, with respect to the nature of the files themselves, I merely want to refer the Court as an evidence of what such files might contain Mr. Spicer and the affidavit refers to him as the official files.

What he means by official is not clear and whether they are merely files that he has in his possession or files that the law make official or not.

It is not clear at all.

But the nature of files in the hands of an organization of this kind of necessity and no criticism applied in it, but on necessity must be such as those which were described by J. Edgar Hoover in the Jencks opinion in the dissenting opinion by Justice Clark which I think would — if transferred to the immigration department here might well be indicate that a person at the best intention might — from all of the voluminous files which are there, the nature will be very likely to be at still present a conclusion which is not justified by the material which he has to go over (Voice Overlap) —

Felix Frankfurter:

Well, let me ask you this in light of that that you’ve already done.

Suppose the — suppose the affidavits were if I — people that were on the witness stand could be discredited in all sorts of (Inaudible) if these affidavits — if these affidavits are the primary informant or (Inaudible) could the Court say we don’t believe him or we’ve heard or read or have a sufficient ground for believing there’s too many informers are not to be credited?

He couldn’t do that, could he?

Ernest Goodman:

No, no.

Felix Frankfurter:

It will have to take the face value —

Ernest Goodman:

Yes.

Felix Frankfurter:

— however improbable the allegations maybe.

Ernest Goodman:

I think the Brinegar case answers that.

There, the — the evidence on which the Court found he had a right to make a search and seizure later was excluded at the trial on many reasons.

The Court said it does not depend upon whether it is admissible at the trial.

It depends upon whether they are sufficiently probable so that if the time the affidavit is made, the Court can give them credence.

Now the — I just want to mention too that the Government also infers to us the statement that what we require as an affidavit which contains the evidence in “exhausted detail”.

I merely want to say we make no such claim.

We don’t think it’s necessary.

The prima facie case is all that I think would be necessary in any event.

(Inaudible)

Ernest Goodman:

I would think a prima facie case would have to be shown with respect to the facts, the factual material.

Now that does not mean that he — that client may not refer to public records such as the judgment of naturalization or petition for naturalization which might be in the (Voice Overlap)

Charles E. Whittaker:

How — how many affidavits do you understand or permitted or at least required under the statute?

Ernest Goodman:

I don’t think any would be — that there is any number required.

I think the Government —

Charles E. Whittaker:

You said one affidavit, one affidavit.

Ernest Goodman:

Well when — that’s what the Government argues that because the statute says it’s on affidavit.

That means that it must be on one affidavit.

I think that is a strain construction of the statute and I think that’s more than one affidavit might well be filed if the Government wants to do so.

Charles E. Whittaker:

Well actually, the word duty has some key significance in the first line of this statute, does it not?

Ernest Goodman:

I think it does.

Charles E. Whittaker:

Might not a district attorney perform on his own the function of filing an information to punish the violation of the federal law on his own now.

And does the statute seem to make it his duty to do so, his duty whether he wants to or not whether an affidavit is filed.

Ernest Goodman:

I think the court — this Court has held that the only way in which this procedure can be conducted is through the procedure set forth in the statute by the filing of an affidavit and thereupon made the duty of the district attorney to proceed in a case.

And the history of that statute, I think, reveals the reason why that procedure comes necessary why this Court has held that it is a prerequisite.

And in the (Inaudible) case I think the Court set forth there in considerable detail that only — the procedure and only if the procedure set forth by the statute is the one which can be followed in the denaturalization proceedings.

I don’t think that a district attorney may proceed under this statute on his own.

Now in the five minutes that left to me I see that I’m going to be unable to discuss at all adequately the — perhaps one of the most important aspects of this case involving illegal procurement.

I do want to state one point in connection with fraud however.

Well I may just briefly suggest under the — an illegal procurement.

The Government’s position on illegal procurement is that for five years prior to his naturalization, he had been a member of the Communist Party.

And because of the organization which they claim it was and which it’s supported by testimony introduced, therefore, he could not have been and was not a person attached to the constitution of the United States.

If the — we — I will not even touch upon the question of the sufficiency of the evidence that’s discussed at great length in our brief.

But I — I do want to make this one point, the Government claim — it is our main contention that a doctrine res judicata applies to the judgment insofar as attachment is concerned.

And the Government’s main position on that is that because there are number of cases decided by this Court over a period of years which held that under the claim of illegal procurements, a naturalization judgment maybe set aside such as a failure of certificate of arrival, no hearing in open court, racial ineligibility and so forth.

Therefore, by the same token, the judgment as to attachment may also be attacked on the ground of illegal procurement.

It is our position that with respect to the matters that I have referred to in these other many decisions these are jurisdictional prerequisite set forth in the statute which are heavily ascertainable and which in the Baumgartner cases the Court held for specific conditions easily established where the attachment is one which involves an ultimate judgment which is not of a kind encompassed in these decisions and therefore must be one which the Court’s opinion is final and may not be reassessed at a later date.

I —

Felix Frankfurter:

I —

Ernest Goodman:

I know I —

Felix Frankfurter:

Let’s see if I understand this.

Ernest Goodman:

In the other question you discuss it.

Felix Frankfurter:

Are you saying that what is final?

The fact that the person has received his citizenship can’t be recanvassed?

Ernest Goodman:

No, that isn’t what I said.

Felix Frankfurter:

What — that’s why I’m asking, what did you say?

Ernest Goodman:

I said that the decision as to whether the person was attached to the Constitution is not the same kind of a decision as to whether he was — he had a certificate of arrival as to the first.

I think it is a judgment as to an ultimate fact which is final and which may not be reopened because of the doctrine of res judicata.

Felix Frankfurter:

Well, what — what is final?

I don’t know.

What is final?

Ernest Goodman:

Well, nothing is final I suppose.

But in connection with the judgment of naturalization —

Felix Frankfurter:

Well, that’s what I’m asking.

Ernest Goodman:

Under the —

Felix Frankfurter:

My father was naturalized that is — that couldn’t be canvassed by any in subsequent proceedings?

Ernest Goodman:

Yes.

Felix Frankfurter:

Well then what is final?

Ernest Goodman:

The finality of the judgment — the judgment is final with the exception of fraud, common law fraud and secondly with regard to illegal procurement.

Illegal procurement we say are the lack of the jurisdictional prerequisites to the exercise by the court of its power to act in such cases.

One of those is not attachment because attachment is a final determination of an ultimate fact.

Felix Frankfurter:

That’s what I mean.

Is the — is the determination that an alien who received the judgment to obtain a favorable judgment, denaturalization involves a judgment.

A judgment whereby he becomes a citizen is the question — the ingredients which led the judgment that he’s attached conclusive and not re-examinable under the proceeding of denaturalization.

Is that what you’re saying?

Ernest Goodman:

Well certain of the —

Felix Frankfurter:

Well, I just want to know what you’re saying.

Ernest Goodman:

I said that —

Felix Frankfurter:

Don’t defend it.

Just tell me what it is you’re saying.

Ernest Goodman:

A judgment of naturalization maybe attacked in one of two manners under the 1940 Act, under the 1952 Act only in one way but under the 1940 Act in two ways.

One, by fraud, we agree if there is a sufficient showing of fraud under the common law doctrines and under the doctrines applied by the court, you can take away a citizenship on that ground.

Felix Frankfurter:

But fraud with reference to his claim that he is attached is that open?

Ernest Goodman:

No, no that is not fraud.

Felix Frankfurter:

Well that’s what I want to know.

Ernest Goodman:

All right.

Felix Frankfurter:

Why isn’t that?

Ernest Goodman:

Because as to fraud, the claim must be based upon a fraudulent — well, I used the word fraud in my definition but fraud itself must be a misrepresentation of a material fact upon which the Government has relied upon and it must be extrinsic rather than intrinsic in its nature.

Felix Frankfurter:

I was hoping that is going to bury those documents.

Ernest Goodman:

I hope so.

I didn’t intend to come to it without some adequate preparation on my argument but I — I finally got to it here.

I’m through, but —

Felix Frankfurter:

May I — may I just ask you to make — to be sure it is considering.

Do I understand that when a man’s swearing attached to the constitution of the United States and that oath, that affirmation is accepted by a judge and looks him in the eye and says, “This is an honest man.”

Ernest Goodman:

This is not the oath we’re talking about.

We’re talking about the petition which he says he acts as a person who is (Voice Overlap) —

Felix Frankfurter:

Yes.

Well that —

Ernest Goodman:

— for five years.

That’s different than the oath.

Felix Frankfurter:

It requires — that is required.

Ernest Goodman:

The oath is in a different category.

Felix Frankfurter:

Well he makes that allegation.

Ernest Goodman:

That’s right.

Felix Frankfurter:

Do I understand you that you can’t show that in fact at the time he was a spy for a foreign government and that was not attached?

I just don’t argue — it puzzles me.

Ernest Goodman:

Well as to whether —

Felix Frankfurter:

It is very clear if I may say so, but I don’t know what —

Ernest Goodman:

I — I would — I would say that it could not — on the question of attachment to constitution that if he answered his questions correctly and the prerequisites to the statute as to exercise of jurisdiction were all present and he was rendered his citizenship later on, the court could not go back on a denaturalization proceeding and assert that during the course of those proceedings, he was in fact acting as a spy and perhaps later convicted for it unless he were asked questions which related to it or unless Congress had put into the law a specific provision dealing with it of the — the question — take the question of anarchist.

The Congress has put anarchist as a — as a specific statement in the statute borrowing anarchist from being citizen.

Ernest Goodman:

A person who has an anarchist may not become a citizen and it makes no difference as to whether he is attached in fact or not the Congress has said so.

William O. Douglas:

There could be no element of res judicata to his oath that there may be res judicata in reference (Inaudible)

Ernest Goodman:

Yes.

That’s I think his position Your Honor took in his opinion in (Voice Overlap)

William O. Douglas:

Well it —

But we didn’t go so far as to say that he (Inaudible)

Ernest Goodman:

No I don’t think the Court came to that issue but when you put it that way —

Felix Frankfurter:

I understand that your views have some support in the opinions expressed by individual members.

I was wondering whether you’re offering this thing as something justified by or confirmed by our opinion or something that you want the Court, there’d be no prior expression to accept your view.

Ernest Goodman:

No.

I think that the point I am suggesting to the Court here and the points we are raising here have been favorably passed upon by the Court and asserting the Schneiderman case with respect to the issues of evidence.

Felix Frankfurter:

Well, that’s a different story.

Ernest Goodman:

That’s right.

Felix Frankfurter:

The quantum of proof.

Ernest Goodman:

And under — in our case —

Felix Frankfurter:

It’s a different thing.

Ernest Goodman:

All right.

Now whether the Court intended in the — in our case to apply the rule of res judicata there I believe — my interpretation of it that it did.

I leave to the Court itself the determination of whether it construes the decision that way or not.

I — before I sit down, I’m through, I see the light but I wanted to just mention one point.

In this brief on appeal the Government presents for the first time the issue of fraud in the oath.

It was not presented by the Government in the brief below.

It was not argued by the district attorney in the court below and therefore it was not argued or briefed by us at all in the court below or here.

We find it for the first time here.

We do not think it’s properly in the case on appeal, but if it is, we certainly don’t think there is evidence in this case to support it because of the post naturalization record of this particular citizen Mr. Nowak who was a member of the State Senate for five years so completely opposite to that now where — where that was the all important consideration.

But if the Court does feel that that is an issue in the case at all, we would like to have an opportunity of filing a reply brief to answer because we don’t think it’s an issue and because we think the facts not justify of finding the fraud in the oath and this Court for the first time.

Earl Warren:

Mr. Bishop.

J. F. Bishop:

May it please the Court.

Despite the fact that there apparently been some narrowing of the issues to say nothing of concessions I think that surely our discussion of the affidavit will be a cleaner and more easy to follow discussion if I divide it very sharply into two questions and devote myself first to the question as to who may make the affidavit.

Somewhere in the petitioner’s brief there was a complaint of lack of personal knowledge and it was on that basis that we address ourselves for the question but it’s a legitimate enough question of the Court as well.

J. F. Bishop:

So if I may, I want to warn the court that I’m going to try to narrow my discussion.

First to the question of who may make this affidavit, in other words is — is it an insufficient affidavit because it is made by one who is not an eyewitness of anything.

I’m — I’m concerned about that question as a remaining question as well because in the cases cited by petitioner in his brief by way of analogy in some of the search cases, there was an array of those earlier cases that not only said that it had to be on personal knowledge and an eyewitness but then it had to be by someone who would be legal evidence.

Now that — those cases were the bases on a second round of some cases cited by petitioner and they have been, I think, very substantially overruled by Brinegar and the like.

But in ascertaining what sort of an affidavit is intended here, I want to stay away, if I may, from the question of how much should he have said some more was this enough.

I want to address myself first and clean up the question.

I hope in accordance with what I conceived to be the concession but to be sure that the Court has no lingering doubts about the fact that an immigration attorney with the expertise to be attributed to him and with the some right to be considered honest and of some judgment is a proper person to make his affidavit although by the nature of the case he couldn’t be an eyewitness to everything that occurred.

Now there —

Earl Warren:

Now isn’t that stated more broadly than the issue raised by the defendant could not be an eyewitness?

The counsel says that he doesn’t require him to be an eyewitness and I thought he stated rather clearly what he thought would suffice.

J. F. Bishop:

Well first of all I —

Earl Warren:

I thought he said it was — it was something like an affidavit for a search warrant or some other proceedings of that kind which do not require a man to be an eyewitness to on this thing but it does require them to show proper cause.

J. F. Bishop:

If I were clear that the Court agreed by then I could dispense with that part of the argument but I’m afraid that the case was cited upon reviewing the brief if I may take a little time —

Earl Warren:

Oh yes.

J. F. Bishop:

— to go through those —

Earl Warren:

Take all the time you want.

Yes.

J. F. Bishop:

— unless there be a lingering doubt and also because it will differentiate the questions of how much more, why wasn’t this enough, how much should he tell?

Now that is narrowed as I will note in that point of the argument that we need not fear that everything has to be put in.

Now, with that in mind, I want to attack that personality problem, the person who is to do it in the orthodox way first with a quick look at the statute, secondly with a look at the contemporary history and so on down the line.

As to the language of the statute, it says affidavit.

Now, I don’t want to put too much story on the fact that it says affidavit in the senior but it is something of a benchmark that the Congress was not considering the string of affidavits that would be necessary in the number of cases.

What is more to the point is that draftsmen, when they do consider an affidavit that has to be on personal knowledge can do so, not in the Government’s brief at page 49.

We have set forth a sample of the type of draftsmanship which we think is indicated and indeed require if the ordinary definition of an affidavit is to be departed from.

That is an affidavit is — in frequent usage made on information and belief.

When it is not to be that when people are to be dissatisfied with someone else as it was said using the judgment and the like the language is that set forth on page 49 of our brief which I read here in Rule 56 (e) of the Federal Rules of Civil Procedure.

That’s page 49 of our brief.

Supporting and opposing affidavit shall be made on personal knowledge — shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matter stated therein.

I want to break off in the quotation because the rest of the quotation, we think, also proves our point as to the matter of attaching copies of what he is examining because this rule drifting off just momentarily into the other facet of my argument says, “Sworn or certified copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or serve therewith.”

And — and because that relates to the other part of my argument and shows what draftsmen do when they expect the — the written material to be attached they say it specifically.

J. F. Bishop:

But that — and that is why I don’t want to read that in at this time.

Now, departing from the strict matter of the language, I would like to refer to the Zucca opinion and state that accepting that decision in good grace, we not only look at it for its limited holding in that case as the Court will of course recall, no affidavit was filed.

The issue in that case was not what should be in an affidavit because no affidavit was filed whatsoever and the Court had for decision the question whether the Government has to file an additional affidavit.

Now, we look to that decision, however, in all sincerity and carefulness to see whether we can derive some benchmarks from it from our guidance as to what an affidavit of good cause should be.

And it is in that spirit and I think literally in that language that this Court said that it was not looking at this complaint as a sample or not a sample of what could be in an affidavit but rather stated that in modern practice, a complaint might be restricted to ultimate facts and that that would not satisfy the rule and therefore that was a reason for holding that the complaint even though on information or belief or had it been sufficient in that case or not.

The Court did not deal with that point but the Court did give us a benchmark which we think is extremely pertinent as to who is to make that affidavit.

The Court stated at page 98 and we put the quotation on page 51 of our brief, “In response to the regrets of the Government and the vigor of the dissent that if the — if too much of an affidavit were to be required, it would lead to a virtual morass of almost impossible proceeding.

And to that this Court responded in the sense that not too much would be required and it said “We failed to see that the requirement imposes a burden on the Government”.

At this term, it has been represented to us, that was the Minker case, that the usual practice is that if sufficient grounds are shown, an affidavit showing good cause, see Section 340 (a) of the Act, is prepared and executed and it is forwarded as an aide to the formal judicial proceedings.

And then the Court cited the Government brief in Minker and specifically cited page 34, and we think that that is some legitimate benchmark of what the Court had in mind as being a sufficient affidavit and that’s not imposing a burden on the Government.

Now I have the Minker brief here and the page which the Court itself cited.

It’s cited at page 34 and I read what I think was of course patent in that case and that was that it was a practice in the immigration service to provide an affidavit of an attorney of the immigration service.

And we think that this language of this Court in Zucca is completely persuasive of the fact that that’s what the Court had in mind and that’s what I — that is what the person is who can execute that affidavit even though it must be known of course that personal knowledge isn’t available to him of every fact that occurred there.

Now in that Government brief that is referred to on page 34, the Court — the Government pointed out to the Court and said, the most it can result — no.

It said, “The most it can result from the investigation is an interdepartmental recommendation that good cause exist to institute future judicial action.

This investigative procedure is in no sense an administrative pretrial.”

And then this additional page which was before the Court on page 23 of the Minker Government brief which I did not reproduce in the brief here.

It says, and this was the representation of the Government to the Court as to what we were doing about affidavits and which we think the court said, “Well that doesn’t impose a burden.”

Here it is “Where denaturalization was sought on the ground of illegality or fraud, it was the bureau –“

Where are you reading from?

J. F. Bishop:

I am reading from page 23 of the Minker Government brief.

(Inaudible)

J. F. Bishop:

Yes.

(Inaudible)

J. F. Bishop:

I am sorry that I didn’t add this quote.

It should have been — well let me distinguish.

This is — this is an additional part as I said that was before the Court.

The Court cited at page 34 and here is the additional language from 23 which the court did not cite but which was before the court in our presentation of what the immigration attorneys were doing.

“Where denaturalization was sought on the ground of illegality or fraud, it was the bureau which usually executed the affidavit of good cause which was forwarded to the responsible United States attorney for use and possible judicial proceedings.”

Now that patently, it seems to us, indicates that your bureau attorney or a bureau — some member of a bureau was the person who would execute the affidavit and that it was not required that the affidavit of good cause be the original affidavit of prospect and witnesses and so on.

Earl Warren:

You could say the same thing about an affidavit for a search warrant, couldn’t you?

It could be an agent of the Government.

It could be a private individual.

It could be anybody who could establish probable cause by the affidavit.

J. F. Bishop:

That of course is our position.

Earl Warren:

Yes.

J. F. Bishop:

And I don’t want to — I don’t want to labor the point but I do want to finish it up so that it will be addressed because as I say there are number of —

Earl Warren:

Well it’s —

J. F. Bishop:

— remarks in the cases that were cited.

Earl Warren:

As far as I’m concerned it will hardly be at rest if you read everything you wrote in your brief [Laughter] into the Zucca opinion.

J. F. Bishop:

No, I have not referred to our brief in the Zucca opinion.

Earl Warren:

No.

J. F. Bishop:

Not at all.

Earl Warren:

No, your Minker brief.

J. F. Bishop:

Well, the Minker brief —

Earl Warren:

— Minker brief and the Zucca opinion —

J. F. Bishop:

No, I have —

Earl Warren:

— can be addressed.

J. F. Bishop:

I have written — I have read that only in order to indicate what this Court must have been talking about when it said we see it fail to see that the requirement poses a burden at this term it has been resented and represented to us the usual practice.

Earl Warren:

The Court disavowed any intention to determine what kind of an affidavit was necessary didn’t it in the Zucca case.

J. F. Bishop:

I — that is our position.

Earl Warren:

Yes.

J. F. Bishop:

In other words, there was the narrow question and the remarks in the opinion to which we give attention in the second part of this as to what that affidavit should contain where we think something of a benchmark sustaining the position of what should be in the affidavit.

But it was no passing on the complaint because the Court would not accept the complaint.

The Court resisted our own — our own efforts to say that the complaint avoided any harm, that resisted Zucca’s effort to show that — then it was insufficient and addressed itself to the narrow issue that the Government has to file an affidavit and it is not just restricted as we sought to argue to the case of an outsider seeking to force the Government to act.

But, they — as I say, we do explore that opinion because that is perhaps the best indication of — we have of what the Court said would be available in an affidavit and would not be available in a complaint.

And that we interpret the Court to say not that the complaint in Zucca was not enough but that with the modern practice the Court used those words, modern practice.

The modern practice under which a complaint could just allege ultimate facts in some cases and that would not be enough.

And so the affidavit serves not just as a duplication of the act — of the complaint it serves for this Court’s opinion in Zucca as a minimum.

In other words, no matter what you put into your complaint or what you’re entitled to leave out of your complaint this much, the Court said, you must put into your affidavit and that is not your ultimate facts.

J. F. Bishop:

In this case, the ultimate facts would be fraud and illegal concealment but you must give evidentiary effects to show that you are not — we’re not — in other words, we are not interested in your conclusions which are virtually conclusions of law in the ultimate fact.

We are interested in some showing of how that came to pass the evidentiary facts.

And in that respect, the Court cited two cases in which that point is illustrated those were the Salomon cases the case and the Richmond case.

And in those cases have the court didn’t presented with only a complaint stating the ultimate fact of illegal naturalization, they would have been deprived and the proceeding might have been instituted or carried forward on a basis that when the evidentiary facts in that case to with the judges departure from the room for awhile in one of the cases I recall.

When those — when it’s amplified enough to see what that ultimate fact is saying then the affidavit performs its function of enabling the Court to see whether the conclusory material or the facts — the ultimate facts are of a proper type.

But I have digressed from the question of who can make it and since there seems to be some agreement not only of counsel but of the Court that the person who makes the affidavit does not have to be the eyewitness and indeed in most cases that would involve a whole chain of that affidavit sometimes practically unobtainable.

I’ll take my chances on the rest of the brief which cites the contemporary authority at least going back to the origin of this Act.

When Attorney General Bonaparte accepted the affidavit that was given to him irrespective of the question of how much detail is to be given, he certainly accepted the statement of a state department official who could never has been an eyewitness of all the things which he said have the — as to which he attest the genuineness.

Felix Frankfurter:

Now, Mr. Bishop.

J. F. Bishop:

Yes, sir.

Felix Frankfurter:

The requirement of an eyewitness has been disavowed by — could you state — and sort of deal about this.

Could you state in some generalized form what you conceded to be the minimum that such as an — whose affidavit it should be represented by function, what’s the minimum of its content should be?

Could you — do you think that would be a profitable question to answer?

J. F. Bishop:

A profitable question if I were capable of answering it because it involves (Voice Overlap) —

Felix Frankfurter:

But we have to —

J. F. Bishop:

— contingencies but may I —

Felix Frankfurter:

But we have to answer it.

J. F. Bishop:

What’s that?

I don’t believe so (Voice Overlap).

I believe that this Court —

Felix Frankfurter:

And what is the — what —

J. F. Bishop:

The court said —

Felix Frankfurter:

What do you conceive to be the issue that we have to answer?

J. F. Bishop:

You have the issue as to whether an affidavit that it does not just state the ultimate fact of fraud and the illegal concealment but goes on and states very precisely, it seems to me what the case is about and what any judge could pass on as to whether if in law and in probability of fact is a case that should be tried.

I think we have that here.

In other words, the ultimate facts here are stated that is that there was fraud and illegal concealment.

But their affidavit surely does not stop there.

In the back pages of our brief, the affidavit is set forth at length.

It states the evidentiary fact that the fraud consisted of his being a member of the Communist Party and that that Communist Party was an advocate of overthrow of Government.

And that it stated specifically the time of membership in the Communist Party, stated a great amount of detail as to what the specific statements were that were made.

J. F. Bishop:

In other words, it was not even a matter of summary.

Felix Frankfurter:

Let me ask you this.

Just as I read, bringing out some illumination.Suppose the department made it a practice, I’m not suggesting that it has, will or should, suppose the department went in for a new policy to wit thereby either the deputy attorney general or the head of the division which is charged of this matter, is that criminal division, civil naturalization, denaturalization?

J. F. Bishop:

Well, I think that would still be in the immigration service at the moment.

You mean (Voice Overlap) —

Felix Frankfurter:

But I mean (Voice Overlap) —

J. F. Bishop:

That would be — ordinarily the district attorney I accept —

Felix Frankfurter:

No, but who in the department as charge of matters that come to the attention of the department dealing with denaturalization, is that the civil division?

J. F. Bishop:

You mean after the commissioner?

Felix Frankfurter:

Yes, I mean who is in-charge when you come into this Court?

J. F. Bishop:

A great number of the questions would come to the criminal division.

Felix Frankfurter:

Very well.

J. F. Bishop:

Yes, I’m sorry.

Felix Frankfurter:

All right.

Suppose it made a rule that the Assistant Attorney General in charge of the criminal division makes every affidavit in this denaturalization case.

The department conceiving it to be of that order of importance instead, I hereby, on information and belief, swear that the following factor included in material in the filing of the department and then gives the summary.

Would you think that would be or would you —

J. F. Bishop:

If — if the facts were precise (Voice Overlap) —

Felix Frankfurter:

I’m giving you —

J. F. Bishop:

Yes.

In other words not a blanket statement.

Felix Frankfurter:

No, no, no, but then it says, I find just like this (Voice Overlap) —

J. F. Bishop:

Like this?

I would certainly stand on that.

Felix Frankfurter:

A standing rule, we could take judicial notice but of course the Assistant Attorney General hasn’t examined the filing itself and somebody is going to explore it and couldn’t —

J. F. Bishop:

Someone reliable with expertise.

Felix Frankfurter:

Well someone.

J. F. Bishop:

Yes, sir.

Felix Frankfurter:

All right.

You’d say that was all right?

J. F. Bishop:

I would say that if it was full as this affidavit —

Felix Frankfurter:

Yes.

Now then —

J. F. Bishop:

With the evidentiary fact —

Felix Frankfurter:

— doesn’t get down whether this official.

J. F. Bishop:

Pardon.

Felix Frankfurter:

You would attach weight as I was to the fact — the Deputy Attorney General and the Assistant Attorney General wouldn’t you?

J. F. Bishop:

Yes.

Felix Frankfurter:

Or you’ll commend to this Court to attach weight, wouldn’t you?

J. F. Bishop:

I didn’t cite the Steele case.

Felix Frankfurter:

Well will you be good enough to follow —

J. F. Bishop:

Surely.

Felix Frankfurter:

— in consequence the same with mine — of mine will you and not tell me what you did and what have you decide.

Assume the assumption that I have made that a person with the authority of an Assistant Attorney General files such an affidavit.

Would you regard that as sufficient?

J. F. Bishop:

I would.

Felix Frankfurter:

All right.

Now here we hadn’t gotten an Assistant Attorney General.

What is — what is the official?

What is his rank?

J. F. Bishop:

This is an attorney in the Immigration and Naturalization Service.

Felix Frankfurter:

Well, I should think it would be worthwhile considering the very candid answer that Mr. Goodman made that if the individuals themselves whose statements are in files made the affidavit he, I’m not talking about a stopple, he thought that would satisfy, but he thought that.

It’s a very different thing from having this official — makes some reasons on concept that he made a balance summary or a dependable summary that has nothing to do with morals, having to do with the capacity to summarize which most people haven’t got.

But the Assistant Attorney General would be different, wouldn’t he?

Why don’t you address yourself to the problem that he attended to?

That’s what I want to know.

J. F. Bishop:

I — I will address it in this fashion that if the Assistant Attorney General supervises no matter how indirectly this — this Attorney Spicer who made this affidavit, has made a great number of affidavits, he is not without supervision.

I cannot assume that he would deviate from the policy (Voice Overlap) —

Felix Frankfurter:

Well, that’s the case here before us, haven’t we?

J. F. Bishop:

That’s right.

Felix Frankfurter:

Why do we have to go into all these surrounding things, the susceptibility of past brief, future brief, what was worth quoting, what wasn’t worth quoting?

Why don’t we contend — contain ourselves within the framework of this concrete case insofar as it tendered a general principle?

J. F. Bishop:

I can only state that I view those words as a challenge of the position.

The words personal knowledge had to be (Inaudible).

I — do you wish me to continue?

Earl Warren:

Yes, yes, we’ll continue, yes.

J. F. Bishop:

As I’ve stated, it seem — it seem to me that the disavows and the discussions here allow me only the time to state that the reading of this affidavit was shown that it departs along way from a mere statement of ultimate facts.

That it shows the type of thing on which a court could pass.

It does not show whether the witnesses, when they are finally tested in the final proceeding are going to be found correct or not, but we submit that no one without a trial and a cross-examination could determine that point on — do you wish me to take any time on the res judicata point but it will require five minutes.

Earl Warren:

You better argue your case.

You’ve got five minutes left.

J. F. Bishop:

Very well.

On the res judicata point, I think that that’s stands in large part from the concurring opinion of Mr. Justice Douglas in the Schneiderman case.

I want to point out as pointed out by Mr. Justice Douglas that that statement and that consideration, we think, relied on large part on a different form of statute and that the risk of just one bit more of further reading, the statute at that time stated as a — as a condition of naturalization.

The finding of a court and as I concede, Mr. Justice Douglas’ argument, it was that if the court finding was entered that that — that in some degree indicate that the problem had been met but the opinion goes on and state — the language at that time was, it shall be made to appear to the satisfaction of the court.

But as I pointed out on the footnote at Schneiderman 320 U.S. 162, footnote 2 this provision was recast by the Act of March 2, 1929 into the form where now this point of attachment to the constitution is stated as a requirement of naturalization which cannot be set aside by — presumably by the action of a court mistakenly or being imposed upon deciding to the contrary.

At the time of Mr. Justice Douglas’ statement, it said it shall be made to appear to the satisfaction of the court.

Well that satisfaction had been held in Schneiderman, and the argument, as we understand, it was that — that could not be an illegal procurement.

That requirement had been met but it is no longer the requirement.

Now, the requirement is the attachment as an objective fact and not as a court finding.

And as such, if it is proved, then the court can no more re-legislate for Congress by its error in that proceeding or by being defrauded than it has in the other cases where some perhaps lesser requirement is found missing like the filing of the certificate and yet in those cases, the Court’s action, even though contested at the — by their Government at that time, could not be set — could not be held res judicata.