'Birth Certificate'. To do this plaintiff utilized the second sheet which recited the births in the Amoruso family. He pointed out that there was a vital omission from this record -- it contains no reference to plaintiff's sister, Felicia, whose existence cannot be doubted. The government objected, refused to have this document marked as part of its exhibit, and consequently the second sheet of the record recitals transmitted from Italy became plaintiff's exhibit instead of the defendants'.
The defendants, having introduced one sheet of the document transmitted to them from Italy, cannot validly object to the introduction of the remainder of the document by the plaintiff for the purpose of attacking the weight or relevancy of that portion first introduced. Grobelny v. W. T. Cowan, Inc., 2 Cir., 1945, 151 F.2d 810; Cox v. United States, 7 Cir., 1939, 103 F.2d 133; 7 Wig. § 2113; 31 C.J.S., Evidence, § 190.
Only a factual decision remains to be made. Has the government overcome plaintiff's prima facie case by clear, unequivocal, and convincing evidence? The government's case stands or falls upon the alleged 'Birth Certificate'. If it is established by clear, unequivocal, and convincing evidence that the Nicolo Amoruso whose birth is recorded therein is Nicholas Delmore, plaintiff in this case, then of course, judgment must be for the government. But the government has not succeeded in making its proof by that exacting standard. Plaintiff's attack upon the weight to be accorded the government's exhibit entitled 'Birth Certificate' by showing that the records of Nicosia do not show the birth of a daughter Felcia to the Amoruso family whose geneological history has been exhibited here demonstrates either a crucial inaccuracy casting a shadow on the entire record, or the description of an Amoruso family other than that of the plaintiff. It is such as to leave a lingering doubt that the plaintiff is the same person whose birth is recorded in the introduced documents. This is especially so in view of testimony that the names Amoruso, Luigi, Provvidenza and Rizzo were very common names in Nicosia, at that time a fairly large town of from 15,000 to 20,000 inhabitants.
The Court of Appeals for this circuit, in the recent case of United States v. Anastasio, 3 Cir., 1955, 226 F.2d 912, rehearing en banc denied page 923, enunciated plainly the duties of courts when dealing with cases in which the implication of deportation of persons claiming to be citizens of the United States is present. Although the following language arose from a denaturalization case, the principles upon which it is based are applicable here:
'We are fully aware of the unsavory background of this particular defendant. But the very fact that extrinsic considerations may operate to make the government zealous in its prosecution should make the courts equally zealous to see that there be conformance to the letter and spirit of the naturalization laws.
'No criticism is implied of the Justice Department's 'deportation program' with respect to naturalized racketeers, noted in the Supreme Court's recent opinion in Shaughnessy v. United States ex rel. Accardi, 349 U.S. 280, 75 S. Ct. 746, but no matter how worthy the cause or its objective, the courts cannot lose sight of the fact that this is a government by law and not men nor against men.
'The courts must be less concerned with what one undesirable citizen can do if he is permitted to retain his citizenship and residence in this country than with what one bad precedent-making decision can do.' United States v. Anastasio, 3 Cir., 1955, 226 F.2d 912, 919.
Hence it is found that the defendants have not met the exacting standard of proof demanded of them in this case.
An order should be settled for judgment in favor of the plaintiff declaring him to be a citizen of the United States.
The foregoing shall constitute findings of fact and conclusions of law as required by Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A.