In his application, petitioner had added (correction 3) the statement that: "My lease runs out at the end of May, 1977. I will move to N.J. at the end of this month." The jurat/certification shows that this statement was also made on May 26, 1977.
In any event, on July 11, 1977 petitioner signed an "Application for Transfer of Petition for Naturalization" asking the court in Wilmington to transfer his petition to the court in Newark, N.J. This form indicated that petitioner then lived at 3 Conrow Road, Delran, N.J. It was sworn and subscribed in Camden.
On August 18, 1977, an order of transfer was signed in Wilmington by Chief Judge Latchum, and on August 30, 1977 an order approving the transfer was signed by Judge Stern in this court.
This part of the history clears up the questions raised when the matter first came before the court, Tr. 2/22/82, page 2, line 23 to page 11, line 1.
The next event of record is that on February 2, 1982, petitioner filed another "petition" in this court, which was given Civil No. 82-303, and a 60 day summons issued.*On the same date, a notice of motion was filed returnable February 22, 1982 for an order to INS to conduct a preliminary hearing.
At that hearing it appeared that the investigation which the statute assigns to INS to make as a basis for a report was not yet completed, but was awaiting a federal Grand Jury investigation for income tax evasion. This implied a "referral" from the Treasury Department to the Department of Justice, see U.S. v. La Salle Nat'l Bank, 437 U.S. 298, 57 L. Ed. 2d 221, 98 S. Ct. 2357 (1978), and the observation about the actual process noted in U.S. v. Garden State Nat'l Bank, 465 F. Supp. 437 (D.N.J., 1979), and later on in U.S. v. First Nat. State Bank of N.J., 469 F. Supp. 612 (D.N.J., 1979). See Tr. p. 11, line 4 to p. 12 line 7.
The question then was raised by the court whether pendency of such an investigation would present Fifth Amendment problems if there were claims of possible self-incrimination raised in the course of the INS investigation. Petitioner's lawyer said: "We don't claim any privilege at all, your Honor." (Tr. p. 14, lines 9-10).
After a colloquy dealing with tax returns requested but not supplied, the court directed that an order be submitted for petitioner to supply INS with copies of such federal and state tax returns and estimates as he had filed from February, 1973 to the date of the order, "inclusive of all supporting documents such as forms 941 and W-2". The court noted petitioner's right to obtain copies of filed returns from the taxing authorities. This was to be done on or before March 15, 1982 and the hearing on the motion was carried to March 29, 1982.
At the hearing, the court noted its readiness to entertain an application to require tax authorities said to have petitioner's books and records, to supply him with copies (Tr. p. 23, line 24 to p. 25, line 15). No application for this purpose was ever made.
At the continued hearing of March 29, 1982, there was received as Exh. 5, Tr. p. 166, a 9-page transcript of a continued preliminary examination before a designated naturalization examiner, and a number of exhibits to be mentioned.
Petitioner was told that his statements should be voluntary, in that they may be used against him in any criminal or civil proceedings; he said he understood and was willing to make a statement under those conditions. He was also told that his statements would be made under oath, and that if any were knowingly a false statement, this could make him subject to a fine, imprisonment or both [presumably this referred to 18 USC § 1015(a)]; he said he understood and was willing to make a statement under oath.
He seems not to have had explained to him that under 8 USC § 1101 (f) (6), the giving of false testimony for the purpose of obtaining any benefits under the naturalization statutes is an act which Congress has declared to preclude a determination that an applicant is a person of good moral character. See Berenyi v. District Director, etc., 385 U.S. 630, 17 L. Ed. 2d 656, 87 S. Ct. 666 (1967), where the district court denied an application for citizenship expressly because it found that petitioner had testified falsely in the preliminary proceedings, and therefore was "not a person of good moral character within the meaning of the Immigration and Nationality Act" (385 U.S. at 634-635).
In any event, he answered questions about himself and his current status and occupation, about the papers he had signed for naturalization, including the certification of military service, and the tax materials called for by the order of March 5, 1982. Briefly, these were copies of tax returns for the years 1973 through 1977 inclusive and will be mentioned later.
He was asked about tax returns for years after 1977, which he said was the last year for which he filed a tax return. He testified that he guessed the crime commission or somebody, "I don't know who it was" took all the records, "the IRS they took all the records and we have been trying to get them back" but had no luck, so he was trying to file returns but without the records it becomes harder and harder. He was referring to business and personal records, his cancelled checks "and all that stuff like that" that would help to do the income tax. He said he was sending the money toward those taxes because he didn't know what he owed, and didn't want them to think he didn't want to pay his taxes.
At the hearing of March 29, 1982, there was also presented an affidavit of a New Jersey attorney who said he had been retained to represent petitioner with regard to filing "certain income tax returns" on his behalf, and in turn had retained an accounting firm, working particularly with two of its members, "to completely, legally and adequately" prepare all tax returns on petitioner's behalf. He also said that another accountant had been retained by petitioner and was in possession of all books, records and documents needed to properly prepare tax returns when all of them were seized [probably means subpoenaed] for a Grand Jury investigation, including documents relating to taxpayers other than petitioner. As a result, the lack of documentation resulted in delay and thus full preparation became extremely difficult. He said that every effort was being made to fully comply with U.S. laws on tax returns (no mention is made of State tax returns). Along with this affidavit there were copies of returns as enumerated in the memorandum of November 5, 1982.
The court examined this group of returns (years 1973-1977) on the bench at the hearing of March 29, 1982 and commented that some of the material seemed open to question at first review, that the supporting documentation was not included, and questioned why no final returns, estimates, and the like had been filed (both State and federal) since the 1978 filing of the 1977 return.
The explanation given in the attorney's affidavit -- that the books and records had been taken -- was questioned. Petitioner (though not under oath) said that the first records taken were for 1976, and that they have been taken for every year since (Tr. p. 33, lines 9-17). Asked how he could run a business and draw a salary, pay expenses and the like without books and records, he explained that at the end of each month the cancelled checks, checkbook stubs, and so on, are all turned over to the accountant who then prepares and sends petitioner a monthly report. He had these at the office and did not have them with him. He had them for 1981 but not earlier, as IRS took all copies: the accountant's and his. He could not make estimates from the current monthly reports because of the circumstances, such as:
"I might have had a loss in certain years" (Tr. p. 27, line 18).