Stevens v. United States

• Citation: 190 F.2d 880
• Decision Date: 03 August 1951
• Docket Number: No. 10368.,10368.
• Parties: STEVENS v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

190 F.2d 880 (1951)

STEVENS v. UNITED STATES.

No. 10368.

United States Court of Appeals, Seventh Circuit.

Heard June 12, 1951.

Decided August 3, 1951.

Rehearing Denied September 4, 1951.

C. B. Hankel, Jr., Joseph W. Grady, Chicago, Ill., for appellant.

Otto Kerner, Jr., U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., John M. McWhorter, Chicago, Ill., of counsel, for appellee.

Before MAJOR, Chief Judge, and DUFFY and SWAIM, Circuit Judges.

MAJOR, Chief Judge.

This is an appeal from an order entered by the District Court December 7, 1950, denying appellant's petition for naturalization. The petition was heard in open court, wherein petitioner was represented by counsel and respondent (United States District Director, Immigration and Naturalization Service) by a naturalization examiner. At the conclusion of the hearing, the court, on June 21, 1948, allowed respondent's motion for denial of the petition, from which order petitioner appealed. Subsequently, this court, upon motion of respondent, remanded the case to the District Court, with instructions that its order of dismissal be vacated and with directions that findings of fact and conclusions of law be made upon which to predicate the court's judgment. Upon such remand and without the introduction of any further evidence, the court made its findings of fact and conclusions of law and entered the order here sought to be reversed.

Inasmuch as the order under attack is dependent upon the findings of fact upon which it rests, it seems appropriate in the beginning to set forth such findings. The court found:

"1. That the petitioner filed his petition for naturalization herein on February 19, 1947, at which time he testified under oath before the duly appointed and acting United States Naturalization Examiner that he had been arrested only once and that was in April of 1946, for speeding, and that he was not fined on such charge, but was discharged.

"2. That the petitioner, John George Stevens, had been, in fact, arrested on fifteen (15) different occasions, to wit, on November 3, 1932, for obtaining money by false pretenses, discharged; on April 22, 1938, automobile traffic violation, fined $2.00; on October 25, 1946, for speeding; and twelve (12) arrests over the period of 1938 to 1942, for failure to pay wages.

"3. That in the course of his naturalization proceedings, the petitioner, John George Stevens, knowingly and wilfully testified falsely with respect to his arrest record, in order to facilitate his naturalization.

"4. That the petitioner, John George Stevens, has failed to establish good moral character during the period required by law."

On the record as presented, the essential question for decision appears to be whether such findings are substantially supported. As the findings disclose, the proceeding was initiated by a petition filed February 19, 1947, and all of the incidents referred to as arrests occurred prior to February 19, 1942, except one for speeding which occurred in October, 1946. It also must be kept in mind in view of these findings that the petition was not denied on account of these arrests but because petitioner before a naturalization examiner "knowingly and wilfully testified falsely with respect to his arrest record, in order to facilitate his naturalization." Therefore, petitioner's argument that arrests prior to February 19, 1942 (the beginning of the five-year period) cannot be considered is beside the point, and there is nothing in the decisions of this court in Application of Murra, 166 F.2d 605 and 178 F.2d 670, to the contrary.

Section 346 of the Act, 8 U.S.C.A. § 746(a) (1), (d)¹ makes it a felony for any person, whether an applicant for naturalization or otherwise, to knowingly make a false statement under oath in a naturalization proceeding, and provides a penalty of not more than $5,000, or imprisonment of not more than five years, or both. We have no doubt but that a false statement knowingly made by an applicant for naturalization in the course of such proceeding would afford a proper basis for denying the application, and it is immaterial that the false statement knowingly made concerned violations which occurred previous to the five-year period. On this point we agree with a recent decision of the Illinois Supreme Court, Sodo v. United States, 406 Ill. 484, 94 N.E.2d 325, and this is so notwithstanding that such violations standing alone would not afford a proper basis for the denial of the petition.

A more serious question arises from petitioner's contention that the record furnishes no support for the findings upon which the dismissal was predicated. We find it difficult properly to appraise this contention in view of the record with which we are presented. The court heard the testimony of petitioner and two other witnesses in support of the petition. It also had before it the report of the naturalization examiner, which contained findings based upon evidence taken at a preliminary hearing before a field officer, which were adopted by the examiner, together with the recommendation of the latter that the petition be denied. Evidently the court's findings were predicated in the main upon the findings contained in such report. Petitioner's main contention is that this report and its contents were not properly before the court and furnish no support for the findings.

In support of this argument, petitioner places much reliance upon the decisions of this court in Application of Murra, 166 F.2d 605 at page 607 and 178 F.2d 670, and particularly the statement contained in our former decision: "Thus, the hearing before the court is not for the purpose of reviewing the recommendations of the Examiner; it is a hearing de novo and it is obvious that the court must decide the issues upon the testimony which it hears, and that neither the testimony heard by the Examiner, his findings, nor his recommendation are of any consequence."

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