United States v. David Diamond, Etc., and Freeda Diamond, Etc.

The United States is here appealing from dismissals of these actions for de-naturalization by Judge Ben. Harrison. The sole question raised concerns Section 340(a) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. 1451(a). We quote the applicable portion of the statute:

The complaints in these actions were filed on November 1, 1954, without the prior filing of an affidavit separate from the sworn to complaint. On March 1, 1955, the defendant-appellee David Diamond, filed a motion to dismiss the complaint on the ground that the court lacked jurisdiction because the United States Attorney had not filed with the complaint an affidavit showing good cause. A sim *750 ilar motion was filed by defendant Freeda Diamond on March 25, 1955. The trial judge denied both motions relying on an opinion of this Court. Schwinn v. United States, D.C., 112 F.2d 74 , affirmed 311 U.S. 616 , 61 S.Ct. 70 , 85 L.Ed. 390 . The appellees then filed their answers; the cases were consolidated for trial; and the trial commenced on February 28, 1956. On the opening day of the trial, appellant offered affidavits of good cause in evidence, and they were accepted by the trial judge over objection by…

(concurring in result).

The language and reasoning of the majority opinion go much too far. Insofar as it is held that introduction of the affidavits at trial does not satisfy the requirements in a denaturalization case, where rigid safeguards of the rights of the defendant are necessarily required, I agree. The dismissal without prejudice was proper. But it seems clear that the Supreme Court did not intend, in establishing such safeguards, to promulgate a technical formula which must be followed, to the letter and at all events, on peril of dismissal upon jurisdictional grounds. This panel should not attempt to bind the court in such manner that we cannot examine other procedural devices in subsequent cases where the defendant may have been fully protected by the filing of the affidavits.

255 F.2d 749 UNITED STATES of America, Appellant, v. David DIAMOND, etc., and Freeda Diamond, etc., Appellees. No. 15393. United States Court of Appeals Ninth Circuit. December 31, 1957. Concurring Opinion January 10, 1958. Affirmed by Supreme Court April 7, 1958. See 78 S.Ct. 715 . Laughlin E. Waters, U. S. Atty., James R. Dooley, Richard A. Lavine, Los Angeles, Cal., for appellant. Gostin & Katz, Irwin Gostin, San Diego, Cal., Brock, Fleishman & Rykoff, Robert L. Brock, Hollywood, Cal., for appellees. Before STEPHENS, Chief Judge, and FEE and HAMLEY, Circuit Judges. STEPHENS, Chief Judge. The United States is here appealing from dismissals of these actions for denaturalization by Judge Ben. Harrison. The sole question raised concerns Section 340(a) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. 1451(a). We quote the applicable portion of the statute: "It shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any court specified in subsection (a) of section 1421 of this title * * * for the purpose of revoking and setting aside the order admitting such…