United States v. Tuteur, 11040.

• Decision Date: 19 August 1954
• Docket Number: No. 11040.,11040.
• Citation: 215 F.2d 415
• Parties: UNITED STATES v. TUTEUR.
• Court: U.S. Court of Appeals — Seventh Circuit

215 F.2d 415 (1954)

UNITED STATES v. TUTEUR.

No. 11040.

United States Court of Appeals Seventh Circuit.

August 19, 1954.

Pearl M. Hart, Edmund Hatfield, Chicago, Ill., for petitioner.

Robert Tieken, U. S. Atty., John Peter Lulinski, Anna R. Lavin, Asst. U. S. Attys., John M. McWhorter, Dist. Counsel, Immigration & Naturalization Service, Chicago, Ill., for respondent.

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

SCHNACKENBERG, Circuit Judge.

By this appeal we are asked to review a summary judgment canceling respondent's certificate of naturalization, which had been issued under an order of the Superior Court of Clark County, at Vancouver, Washington, on January 2, 1945.

The present proceedings arose in the District Court on June 25, 1951, when the United States attorney for the Northern District of Illinois filed the petition of the United States of America, pursuant to section 338 of the Nationality Act of 1940,¹ alleging inter alia, that in the course of said naturalization proceeding, to-wit, on May 23, 1944, respondent gave certain testimony, including the following: He was asked,

(16) "Have you ever received and/or distributed or assisted in distributing any pamphlets, papers, magazines, or periodicals, issued by any foreign government or agency, or by any organization or association whose membership is limited by nationality, or racial descent?"

to which he replied:

"Sometimes my wife receives a pamphlet from the British government. It is titled `Labor in Britain.\' We do not distribute it."

He also was asked:

(17) "Give a list of all papers, periodicals, magazines or other publications to which you subscribe, or which you receive, directly or indirectly, or read fairly regular, either at home, at the library, or in any other place? If any are published in a foreign language, specify which."

His answer was:

"Union Papers. Life. Time. Look. The Oregonian and the Journal."

The petition alleged that said testimony of the respondent was false, fraudulent, and untrue, in that:

"(a) He had received Information Bulletins published by the Russian Embassy in Washington; and

(b) He had also subscribed to and received the publications `Peoples World,\' `New Masses,\' `New World.\'"

The petition charged that said false testimony "was given for the purpose of deceiving the Immigration and Naturalization Service, preventing a full and proper investigation of his qualifications for citizenship, and of procuring and obtaining naturalization in violation of law."

The petition alleged that respondent was admitted to citizenship by order of the Superior Court of Clark County, Washington, and a certificate of naturalization was issued to him, the said court having relied upon the truth and good faith of the testimony given by the respondent herein in the course of the said naturalization proceeding. It further alleged that the naturalization was illegally and fraudulently procured in that respondent "deliberately and intentionally made false statements in the proceedings leading to his naturalization, concerning his subscription to and receipt of various publications, for the purpose of obtaining naturalization in violation of law, as is more particularly set forth in the preceding paragraphs." The petition prayed that said order be revoked and set aside and that the certificate of naturalization be canceled, etc. By his amended answer to the petition, respondent admitted the questions and answers set forth in the petition and as above quoted, but denied that said testimony was false, fraudulent and untrue, and denied that such testimony was given for the purpose of deceiving the Immigration and Naturalization Service, and denied that he deliberately and intentionally made false statements in the proceedings leading to his naturalization, concerning his subscription to and receipt of various publications, for the purpose of obtaining naturalization in violation of law.

On January 7, 1952, petitioner filed a motion for summary judgment in favor of the United States on the ground that there was no genuine issue as to any material fact, pursuant to rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A.

1. There was attached to the motion as an exhibit what purports to be a transcript of testimony given by respondent before the United States Naturalization Examiner at Portland, Oregon, on February 8, 1945.

This document is not sworn to in any way. It is not an affidavit. Respondent contends that it is not proper to consider it in support of the motion for summary judgment. We agree. Rule 56 provides:

"(c) * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

We, therefore, do not consider the transcript.

2. In 598 Cases, Each Containing 24 Cans, More or Less of Tomatoes v. U. S., 7 Cir., 211 F.2d 249, 251, we said:

"Factual issues are not to be tried or resolved by summary judgment procedure. Once it is determined that there exists a genuine and material factual issue, summary judgment may not be granted. In making this determination doubts (of course the doubts are not fanciful) are to be resolved against the granting of summary judgment. If a conflict appears as to a material fact the summary procedure does not apply unless the evidence on one or the other hand is too incredible to be accepted by reasonable minds or is without legal probative force even if true. Dewey v. Clark, 86 U.S.App.D.C. 137, 180 F.2d 766, at page 772."

In a naturalization proceeding the court, before it can enter an order for naturalization, must find as a matter of fact first, that certain indispensable legal requirements for naturalization have been fulfilled and, secondly, if such requirements have been fulfilled, whether the applicant for citizenship should be granted naturalization in view of his beliefs, background, etc. As to the requirements in the first class, if compliance therewith does not exist, an order of naturalization is subject to revocation on the ground of illegal procurement² regardless of whether it was based upon false statements given by the applicant intentionally or unintentionally. As to the court's exercise of its discretion, in the second class, in order to set aside an order of naturalization on the ground of fraud³ because of false testimony given by the applicant to influence the court in its action, it is necessary for the government to prove that the said testimony of the applicant was intentionally false. In other words, the government in the latter situation must allege and prove fraud, in which an essential element is intent.

In the petition in this case the allegations in reference to false statements alleged to have been made by respondent fall in the second class. To be actionable they must be connected directly with allegations of intent on his part to deceive. The respondent in his answer expressly denies that the testimony under attack was false, fraudulent and untrue. He also denies that it was given for the purpose of deceiving the Service, and he denies that he deliberately and intentionally made the false statements attributed to him in the petition. Thereby he created a distinct factual issue as to intent, which was a necessary element of the petitioner's case. Summary judgment procedure does not apply to such a situation, because a question of intent is a question of fact.

For these...