beyond a reasonable doubt, then, between the same parties, guilt has been established by the greater weight of the evidence, a fortiori.
Defendant finally claims that he could not have been expected to tell the Immigration authorities of any or all of this undisclosed criminal record and bad character, since to do so would have been violative of the Fifth Amendment.
The answer to this novel contention is clear. In the first place, defendant never was 'compelled' to be a witness against himself in the above regard at all. No one forced him to apply for naturalization. This action he took of his own choice. In the next place, as to the above conviction for which he was sent to prison for a year and a day, since the conviction itself occurred after his naturalization proceeding, obviously he was not even questioned in that regard, during such proceedings, and therefore was not compelled to testify during such proceedings in that regard. The proof in that regard comes not from his lips but from the records of the United States District Court for the Southern District of New York. Again, as to this preceding record, defendant disclosed that part which he chose. But, in doing so, he did not rely on the Fifth Amendment. Thereby he waive it. U.S. v. Thomas, D.C. Ky. 1943, 49 F.Supp. 547, 551; Tomlinson v. U.S., 1937, 68 App.D.C. 106, 93 F.2d 652, 656, 114 A.L.R. 1315, certiorari denied Pratt v. U.S., 303 U.S. 642, 58 S. Ct. 645, 82 L. Ed. 1107; U.S. ex rel. Vajtauer v. Com'r, 1927, 273 U.S. 103, 112, 47 S. Ct. 302, 71 L. Ed. 560; U.S. ex rel. Zapp v. District Director, 2 Cir., 1941, 120 F.2d 762, 764. Yet again, when Congress authorized aliens to become naturalized it offered this, the greatest gift in the power of the Government to bestow, upon certain conditions. One of these conditions was a full, frank disclosure of the applicant's character, including his criminal record. This gift he was to receive only upon compliance with that condition. When he applied for such gift, his application constituted his agreement to abide by such condition. In other words, when defendant applied for naturalization, he agreed to waive any right to rely upon the above provisions of the Fifth Amendment, in order to give the United States Government the information which Congress insisted was necessary in all naturalizations. That such constitutional provisions may be waived is settled law. U.S. v. Thomas, supra; Tomlinson v. U.S., supra; U.S. ex rel Vajtauer v. Com'r, supra; U.S. ex rel. Zapp v. District Director, supra; Raffel v. U.S., 1926, 271 U.S. 494, 499, 46 S. Ct. 566, 70 L. Ed. 1054.
The recent case of U.S. v. Kahriger, 1952, 345 U.S. 22, 32, 73 S. Ct. 510, involving a somewhat similar situation, is to the same effect.
It is thus clear that by reason of defendant's false statements and concealment of material facts relating to his criminal record, the decree of naturalization of defendant entered in this Court on or about January 22, 1945 was fraudulently procured.
It is further clear that, because of the defendant's false and fraudulent misrepresentations made to the Immigration authorities during the course of his naturalization proceedings, and because of the fact that immediately prior to the filing of his naturalization petition he had been engaged in a serious conspiracy to defraud the United States, defendant had not been, at and prior to naturalization, for the requisite period, 'a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.' Thus defendant's naturalization decree was illegally procured.
Therefore, both on the ground of fraud and on the ground that the order and certificate of naturalization of defendant were illegally procured, said order will be revoked and set aside and said certificate will be cancelled.
The facts herein stated and the conclusions of law herein expressed shall be considered the findings of fact and the conclusions of law required by Fed. Rules Civ. Proc. rule 52, 28 U.S.C.