31 F.2d 696 (8th Cir. 1929), 7918, Turlej v. United States

Docket Nº:7918.
Citation:31 F.2d 696
Party Name:TURLEJ v. UNITED STATES.
Case Date:February 21, 1929
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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31 F.2d 696 (8th Cir. 1929)

TURLEJ

v.

UNITED STATES.

No. 7918.

United States Court of Appeals, Eighth Circuit.

February 21, 1929

C. R. Ellery, of Cheyenne, Wyo. (D. A. Preston, of Rock Springs, Wyo., on the brief), for appellant.

T. Paul Wilcox, Asst. U.S. Atty., of Cheyenne, Wyo. (Albert D. Walton, U.S. Atty., of Cheyenne, Wyo., on the brief), for the United States.

Before BOOTH, and COTTERAL, Circuit Judges, and REEVES, District judge.

REEVES, District Judge.

From a decree canceling his certificate of naturalization, the defendant has appealed.

The action is under section 405, title 8, United States Code Annotated, relating to the subject of aliens and citizenship, and which prescribes the procedure for the cancellation of naturalization certificates. It is provided by this section that proceedings may be instituted 'for the purpose of setting aside and canceling the certificate of citizenship on the ground of fraud or on the ground that

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such certificate of citizenship was illegally procured.'

The bill in the instant case seeks a cancellation on the sole ground of fraud. Pertinent allegations are as follows: 'That said certificate of naturalization was obtained by said defendant fraudulently,' and then follows a detail of circumstances. For instance it was charged that the appellant fraudulently took oath and fraudulently induced his witnesses to take oath 'that said defendant then and there was, and during the period of five years preceding said application had been, a person of good moral character, and during said period of five years had behaved as a man of good moral character, and that said defendant then and there was attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same, and that said defendant would support the Constitution of the United States and bear true faith and allegiance to the same.'

The truth of the above was challenged in the bill, and it was further charged: 'The said defendant did then and there intend to violate the provisions of the Constitution of the United States and the laws of the United States passed thereunder, and that said defendant, prior to the time he and his said witnesses took said oaths, as aforesaid, to wit, on the 25th day of April, A.D. 1920, in the district court of the Third judicial district of the state of Wyoming, sitting within and for the county of Lincoln, in said state, pleaded guilty to a charge then and there pending against him of the illegal and unlawful possession of intoxicating liquor, which said charge then and there also constituted a violation of the Constitution of the United States and the laws of the United States passed thereunder.'

It was further alleged that at subsequent dates, to wit, December 8, 1922, the appellant was charged and convicted of violating the National Prohibition Act (27 USCA), and that on September 12, 1923, he was charged in a state court of Wyoming with having assaulted revenue officers of the United States, and that on November 12, 1923, he was convicted in a state court of Wyoming for the unlawful possession and illegal sale of intoxicating liquor.

The appellant by his answer denied that he had obtained his admission as a citizen by fraud. He admitted that he had violated the law pending his application for citizenship, but asserted that all facts in relation thereto had been communicated to the court at the hearing, and that same had been adjudicated and could not be retried. The cause was submitted to the court upon a stipulation as to the facts, with some additional oral testimony.

The appellant appeared before a Wyoming state court on March 26, 1921, on his petition for naturalization. Upon the hearing the Naturalization Examiner for the district challenged the qualification of the petitioner, 'upon the ground that the said petitioner * * * was not then a person of good moral character, and had not since July 19, 1914, five years immediately preceeding the filing of his petition, behaved at all times as a man 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 same, as required by law.

The appellant at that time made a full and complete statement of the fact of his violation of the laws of Wyoming, his plea of guilty, and the imposition of a fine of $200. His plea of guilty was entered on April 26, 1920. The infraction of the state law admittedly occurred on February 6, 1920. It was admitted that appellant was convicted in the United States District Court of Wyoming on December 8, 1922, for having possessed and sold intoxicating liquor in violation of the National Prohibition Act on August 3, 1922. It was also admitted that on September 12, 1923, the appellant entered a plea of guilty in a Wyoming state court to a charge of aggravated assault upon certain revenue officers of the national government. It was also admitted that on November 14, 1923, appellant entered a plea of guilty in a Wyoming state court for having made an unlawful sale of intoxicating liquor on August 25, 1923.

Objections were made by appellant's counsel to the introduction of the evidence of the several violations of law on the ground of immateriality. It was argued that the offense of February 6, 1920, was immaterial, because committed after the filing of his petition for naturalization, and that the other offenses were committed after the certificate of naturalization had been granted. The trial judge canceled appellant's certificate upon the ground that the assertion he was attached to the principles of the Constitution was not supported by his conduct.

1. The contention made by appellant, that the affidavit upon which the action is predicated is insufficient, is without merit. The statute provides that 'It shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings,'

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etc. Unquestionably the affidavit in this case showed 'good cause,' for the reason that it embodied all the facts alleged in the bill and set forth in the agreed statement of facts. Moreover, apt reference thereto is made in the allegations of the bill, and same was attached to the petition as an exhibit.

2. We must also hold that the bill was sufficient. It is charged, in substance, that the appellant asserted his attachment and devotion to the principles of the Constitution, whereas, at the time he did so, he intended to violate the...

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