Rein v. United States, 5264.

• Decision Date: 06 February 1934
• Docket Number: No. 5264.,5264.
• Citation: 69 F.2d 206
• Parties: REIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

69 F.2d 206 (1934)

REIN v. UNITED STATES.

No. 5264.

Circuit Court of Appeals, Third Circuit.

February 6, 1934.

John S. Pyle, of Pittsburgh, Pa., for appellant.

Horatio S. Dumbauld, U. S. Atty., John A. McCann, Sp. Asst. U. S. Atty., and James I. Marsh, Asst. U. S. Atty., all of Pittsburgh, Pa., for the United States.

Before WOOLLEY, DAVIS, and THOMPSON, Circuit Judges.

WOOLLEY, Circuit Judge.

In a naturalization proceeding Ustin Lysenak, an alien applying for citizenship, produced Abram Rein as one of the "two credible witnesses" required by the statute (8 USCA § 379) to testify that the applicant is a person of good moral character and that, in his opinion, he is in every way qualified to be admitted as a citizen of the United States. In response to a question propounded by the Examiner of the Bureau of Naturalization, Rein testified under oath that he had never been arrested or charged with violation of any law of the United States, particularly with violation of the National Prohibition Law (27 USCA), whereas in truth he (Rein) had been arrested and convicted for the unlawful possession of intoxicating liquor. Accordingly, Rein was indicted on four counts and convicted of this and like offenses for violating section 80 of the Act of March 4, 1909, 35 Stat. 1103, R. S. § 5395, 18 USCA § 142, which provides: "Whoever, in any proceeding under or by virtue of any law relating to the naturalization of aliens, shall knowingly swear falsely in any case where an oath is made or affidavit taken, shall be" fined and imprisoned. From the judgment of sentence Rein has taken this appeal on two grounds: One that the indictment, alleging a false answer merely as to arrest, does not charge an offense against the United States; the other, that the proof adduced thereunder did not establish an offense against the United States. Both questions turn on the same point: Whether the false answer of the witness as to his arrest was material to the naturalization of the applicant, then under consideration, within the familiar rule that to constitute the crime of perjury or false swearing, the testimony must be material to the matter in hand, and within the equally familiar rule of trials that a question in respect to the arrest of a witness — an accusation distinguished from a conviction — is inadmissible because insufficient to impeach the witness. Coyne v. United States (C. C. A.) 246 F. 120; Glover v. United States (C. C. A.) 147 F. 426, 8 Ann. Cas. 1184; Souza v. United States (C. C. A.) 5 F.(2d) 9; 2 Wigmore on Evidence, §§ 980, 982.

The latter rule, whose purpose is to obtain from the witness the facts of the case on trial, does not apply with equal force to naturalization proceedings where the purpose is not to impeach the witness or to lay grounds for impeachment with respect to facts to which he has testified but is to obtain his "opinion" with respect to the applicant's qualification for citizenship.

Naturalization proceedings differ from trial proceedings wherein rights are asserted, contested and determined. Naturalization proceedings, where no rights are involved, are merely administrative of the naturalization laws and constitute an inquiry into the applicant's fitness for citizenship, involving his good moral character,...