United States v. Severino

• Court: U.S. District Court — Southern District of New York
• Citation: United States v. Severino, 125 F. 949 (S.D. N.Y. 1903)
• Decision Date: 03 November 1903
• Parties: UNITED STATES v. SEVERINO.

125 F. 949

UNITED STATES v. SEVERINO.

United States Circuit Court, S.D. New York.

November 3, 1903

Henry L. Burnett, U.S. Atty., and Clarence S. Houghton and William S. Ball, Asst. U.S. Attys.

Ullo &amp Ruebsamen (Lorenzo Ullo, of counsel), for defendant.

THOMAS District Judge.

By chapter 927, p. 742, of the Laws of 1895, the state of New York enacted laws for the naturalization of aliens in the courts of that state in conformity to the rule of naturalization established by Congress, and also added provisions to those contained in the Revised Statutes of the United States, tit. 30 (U.S. Comp. St. 1901, p. 1329), and among other things, that there should be filed with the court, at least 14 days prior to the hearing for naturalization, an application that 'shall be in the form of a petition, subscribed and verified by the oath of the applicant, and shall be filed in the court to which it is presented at least fourteen days before final action thereon shall be had'; and that 'simultaneously with the presentation and filing of the petition herein prescribed and provided for, there shall also be filed an affidavit of a person, who must be a citizen of the United States, and who may or may not be a person whom the petitioner intends to summon as a witness at the final hearing upon the application to be admitted to become a citizen of the United States, which said affidavit shall set forth the full name, residence and occupation of the affiant and that the affiant is a citizen of the United States and is personally well acquainted with the petitioner, and that the said petitioner will have resided for five years within the United States, and one year within the state of New York, immediately preceding the return day of the petition.' The proceeding in the court is initiated by filing this petition, and upon it all subsequent proceedings are based.

In the present action the defendant was indicted for committing perjury in the affidavit accompanying such petition, wherein, as charged, he knowingly and falsely swore that he was personally well acquainted with the petitioner, and that 'the said petitioner will have resided for five years within the United States and one year within the state of New York immediately preceding the return day of the petition. ' The proceeding was in the County Court of the county of Dutchess, in the state of New York. Upon the trial the defendant was found guilty, and now moves for a new trial.

There are two questions involved:

First. Whether a defendant, by committing any perjury in a naturalization proceeding in the court of a state, offends the statute of the United States, to wit:

'Sec. 5395 (page 3654, U.S. Comp. St. 1901). In all cases where any oath or affidavit is made or taken under or by virtue of any law relating to the naturalization of aliens, or in any proceedings under such laws, any person taking or making such oath or affidavit who knowingly swears falsely, shall be punished by imprisonment not more than five years, nor less than one year, and by a fine of not more than one thousand dollars.'

Second. Even if section 5395 includes false oaths in a naturalization proceeding in a court of the state of New York, does it relate to the preliminary oath of a witness to the petition, which is demanded only by the State Statute?

Title 30, Rev. St. (page 1329, U.S. Comp. St. 1901), among other things provides:

'Sec. 2165. An alien may be admitted to become a citizen of the United States in the following manner and not otherwise: First. He shall declare on oath, before a circuit or district court of the United States, or a district or supreme court of the territories, or a court of record of any of the states, having common-law jurisdiction, and a seal and clerk, two years, at least, prior to his admission, that it is bona fide his intention to become a citizen of the United States,' etc.

From the federal statutes relating to naturalization two inferences have been drawn: First. That the state courts, while engaged in naturalization proceedings, become federal courts, or federal agents, and that perjury committed therein is a crime justice in a federal court, and is punishable only in such court. This view is illustrated in People v. Sweetman, 3 Parker, Cr.R. 358 (1857), where the General Term of the state of New York held that a witness who had committed perjury in a naturalization proceeding could be punished only in a federal court, under the federal statute denouncing perjuries. The opinion denominates the state court an agent of Congress for the purpose of naturalization.

In the Matter of Ramsden, 13 How.Prac. 429 (1857), Mr. Justice Hoffman discussed the relation of the state courts to the subject, and summarized his view as follows:

'The power of legislation upon this subject existed in the states prior to the Constitution. The legislation would have been executed in the ordinary tribunals of justice. The power has been superseded by an act of Congress passed under the Constitution. Congress adopt the state tribunals as the agents to exercise the power, as they would have performed it before. The concurrence of the state Legislatures, expressed or fairly implied, adds the sanction of the state to this delegation of power. Whether such tribunals are bound to act may admit of controversy. That their acts are lawful if they do so, seems undeniable.'

The word 'agents,' as used in the Sweetman and Ramsden Cases, cannot mean that the state courts become other or less than courts, inasmuch as a proceeding in naturalization is recognized as a judicial proceeding in a court. Spratt v. Spratt, 4 Pet. 406, 7 L.Ed. 897; Ex parte Frank Knowles, 5 Cal. 300. If the doctrine of the Sweetman Case be adopted and applied to the action at bar, the county court, upon the filing of the application became, as to the proceeding initiated by it, a court of the United States. The perjury, when committed, offended a court of the United States, and an indictment could be found in the proper federal court, but not in a state court.

There is another view, to the effect that courts entertaining naturalization proceedings remain courts of the state, so that persons committing perjury in such proceedings may be punished under the laws of the state, although it is neither denied nor affirmed that such persons could be punished also under the laws of the United States. This view is illustrated by the decisions in Rump v. Commonwealth, 30 Pa. 475 (1858); State v. Whittemore, 50 N.H. 245, 9 Am.Rep. 196 (1870); and these decisions are expressly approved in the opinion in In re Loney, 134 U.S. 372, 376, 10 Sup.Ct. 584, 586, 33 L.Ed. 949, where it is said:

'The decisions in the Supreme Court of Pennsylvania and of New Hampshire, cited for the appellant, holding that the judiciary of a state has jurisdiction of perjury committed in a proceeding for naturalization before a court of the state, under authority of Congress, tend rather to support than to oppose our conclusion; for they were put upon the ground that the proceeding for naturalization was a judicial proceeding in a court of the state, as it doubtless was. Rump v. Commonwealth, 30 Pa. 475; State v. Whittemore, 50 N.H. 245, 9 Am.Rep. 196; Spratt v. Spratt, 4 Pet. 393, 408, 7 L.Ed. 897.'

According to this view, the state court, while entertaining such proceedings, remains a part of the sovereignty which created it, and does not become a federal court. The federal courts in instances have entertained actions to punish witnesses charged with perjury in naturalization proceedings in state courts. In United States v. Lehman (D.C.) 39 F. 49 (1889), it was held that a person acting as a witness as to the residence of the applicant, pursuant to Rev. St. Sec. 2167 (U.S. Comp. St. 1901, p. 1332), and swearing falsely in regard thereto, was liable to the penalty prescribed in section 5424 (U.S. Comp. St. 1901, p. 3668), which relates, among other things, to 'falsely making, forging, or counterfeiting * * * any oath, * * * or other instrument, * * * required or authorized by any law relating to or provided for the naturalization of aliens. ' The question now under discussion was not raised, but it will be seen later that section 5429 (U.S. Comp. St. 1901, p. 3670) gives the federal court such jurisdiction over offenses included in section 5424. The decision was on demurrer to the indictment. Later (United States v. Lahman (D.C.) 39 F. 768) it was concluded that the offense of perjury is punishable not by section 5424, but by the above-quoted section 5395 of the Revised Statutes (U.S. Comp. St. 1901, p. 3654), which, as will appear, section 5429 does not include.

In United States v. Power, 14 Blatchf, 223, Fed. Cas. No. 16,080 (1877), Judge Benedict decided that the city court of Yonkers, N.Y., had jurisdiction of naturalization proceedings. The question arose upon an indictment found in the Circuit Court of the United States for perjury found in the Circuit Court of the United States for perjury alleged to have been committed by the defendant in the city court. The jurisdiction of the Circuit Court was no questioned.

Thus far it appears that the General Term of the Supreme Court of the state of New York held that federal courts had exclusive jurisdiction of perjuries committed in state courts in naturalization cases, because they become federal courts or agents of Congress; that Mr. Justice Hoffman, of the Superior Court of New York, also regarded state courts as agents adopted by Congress; that the courts of two states have held with the approval expressed in In re Loney, supra, that the state court had jurisdiction, as the proceeding was in a court of the state; and in the cases of Lehman and Power an unchallenged jurisdiction was exercised. In...