United States v. Scheurer

JAMES ALGER FEE, District Judge.

A complaint for'the cancellation of a certificate of naturalization, issued after the administration of an oath in this court to John Hans Scheurer on July 19, 1934, was brought by the United States under the provisions of the Act of 1940.¹ After the issues were segregated by pre-trial conference and crystalized by order thereon, a trial was had. The evidence showed the defendant was a sheetmetal worker who came to this country from Germany in 1923. He had been a member of the armed forces of Germany and fought in the first World War as a private and then as an officer, receiving a promotion for bravery in the field. After the war he had become a member of the Stahlheim in Germany.

Upon coming to this country Scheurer joined a German Veteran’s Association in Portland, Oregon. In March 1934, he filed a preliminary form for petition for citizenship and in April 1934, a statement of facts to be used in filing a petition for citizenship. His petition was filed. He was given what is described as a routine examination at the time of, and after the filing of, the petition for citizenship, by the examiners who, at that time, were employees of the Bureau of Naturalization, Department of Labor. His witnesses, also, were examined under oath. The chief object of these examiners was to establish the residence of petitioner for the required length of time, his knowledge as to the form of government of the United States, and the absence of a criminal record. Admittedly, in the case of Scheurer, when no' criminal record was found, the examination was perfunctory. No further investigation was made in his case to check the validity of his other statements. On July 19, 1934, Scheurer was brought before this very court, together with a number of persons who expected to be naturalized, where the writer of this opinion was presiding. Mr. Thomas S. Griffing, one of the examiners, stated that a group of persons standing in the court, were citizens of the German Reich who had been examined as to their knowledge of government and found satisfactory and were recommended for admission.

No statement was made to whom they were found satisfactory.² Neither the petition of Scheurer nor any other applicant, nor any other supporting documents thereto, nor records as to the examination, were brought before the court. No examination was made of Scheurer or his witnesses or any other applicant or other person by or in the court. The court did not have before it the approved form of recommendation containing the name of Scheurer and the other applicants until it was brought up with the printed form of order for admission for signature.

After hearing the statement of the examiner, the court directed the clerk to administer the oath of citizenship to the persons before him, as a group. Thereafter, the applicants left the courtroom and respectively signed a certificate of naturalization in the clerk’s office. Later there was brought to the Judge in chambers, the recommendation of the examiner, the text of which was as follows:

“Form 2351 Original

U. S. Department of Date July 19, 1934

Labor NaturalizaList No. 89

tion Service Sheet No. 2

"Naturalization Petitions Recommended To Be Granted

“To the Honorable the District Court of the United States for the District of Oregon, sitting at Portland, Ore. (Division. .) :

“The undersigned, duly designated under the Act of June 8, 1926 (Public No. 358, 69th Cong.), to conduct preliminary hearings upon petitions for naturalization to the above-named Court and to make findings and recommendations thereon, has personally examined under oath at a preliminary hearing each of the follqwing Five (5) petitioners for naturalization and their required witnesses, has found each of such petitioners entitled under the law to be naturalized, and therefore recommends that each such petition, upon the appearance of the petitioner in open Court, be granted, including prayer for change of name where noted below.

Change Petn. Name of

of Name No. No. Petitioner

Mina Voltis 1 8643 Assimina Voltis

2 8644 Joe Provenzana

3 8645 John Scheurer

4 8760 Bio Roald Tollefsen

5 8559 Charles Eugene Mc-Killop

“Respectfully submitted:

“Date July 19, 1934

“Thos. S. Griffing

“(Signature of designated examiner or officer)

“United States of America

District of Oregon ss

Portland, Oregon Division

“Upon consideration of the petitions for naturalization listed above, and the findings and recommendations thereon of a duly designated examiner or officer of the Bureau ‘of Naturalization (or Naturalization Service), and each of the said petitioners having appeared in person at a final hearing held in open Court this 19 day of July, A. D. 1934, and having taken the oath prescribed by law, it is hereby ordered that each of the petitioners so listed be, and hereby is, admitted to become a citizen of the United States of America, and) the prayer granted for change of name in petition No. 1643. By the Court:

“James Alger Fee “Judge.

“Government Printing Office 14-2358 “Endorsed:

“Filed July 19, 1934

“G. H. Marsh, Clerk

“By A. M. Salvon, Deputy”

Although the “final order” administra.tively prescribed, which is attached to this form of petition, recited that the judge had considered the “findings” of the designated examiner, there is no adoption thereof. The words “found each of the petitioners entitled under the law to be naturalized” states no fact found. It is a bare conclusion of law. The judge signed the form and admitted Scheurer upon the statement that the examiner had found Scheurer satisfactory and the recommendation for admission.

There are several questions to be decided here. First, had this court, by approving recommendations of a designated examiner at the naturalization proceeding, passed upon and thereby rendered res judicata the qualifications of the applicant for citizenship, including the proposition of behavior indicating attachment to the principles of the Constitution for five years prior thereto, so that no actual examination of these facts can be had in this proceeding? Second, if this question is open for examination, had the defendant behaved as a person so attached and had he actually been so attached? Third, did defendant commit a fraud upon the court by taking a false oath when he swore that he was attached to the principles of the United States Constitution ?

At the threshold, the effect of the recent decision of the Supreme Court in the case of United States v. Schneiderman³ upon the principles underlying the present contron versy must be determined. It is contended that the first question, above propounded, has been settled thereby and that it was held that no examination may be had of the behavior of the defendant within five years prior to primary admission, because a “judgment” was passed by the court in the “final order” which conclusively establishes the basic facts against attack direct or collateral. The majority opinion of the court in that case speaks in part as follows:

“We are dealing here with a court decree entered after an opportunity to be heard. At the time petitioner secured his certificate of citizenship from the' federal district court for the Southern District of California notice of the filing of the naturalization petition was required to be given ninety days before the petition was acted on (§ 6 of the Act of 1906), the hearing on the petition was to take place in open court (§ 9), and the United States had the right to appear, to cross-examine petitioner and his witnesses, to introduce evidence, and to oppose the petition (§ 11). In acting upon the petition the district court exercised the judicial power conferred by Article III of the Constitution, and the Government had the right to appeal from the decision granting naturalization. Tutun v. United States, 270 U.S. 568, 46 S.Ct. 425, 70 L.Ed. 738. The record before us does not reveal the circumstances under which petitioner was naturalized except that it took place in open court. We do not know whether or not the Government exercised its right to appear and to appeal. Whether it did or not, the hard fact remains that we are here re-excunining a judgment, and the rights solemnly conferred under it.”⁴

1 8 U.S.C.A. § 738, Act of October 14, 1940, c. 876, Title I, Subchapter III, § 338, 54 Stat. 1158 derived from Act of June 29, 1906, c. 3592, § 15, 34-Stat. 601; May 9, 1918, c. 69, § 1, 40 Stat. 544.

2 In tie suggestion of the Committee on American Citizenship of the American Bar Association, it is indicated that at present they must be found satisfactory to the Department of Justice. Gateway to Citizenship 1943, pp. 116-117, citing 8 U.S.C.A. § 707, which is former § 382, 8 U.S.C.A.

3 320 U.S. 118, 63 S.Ct. 1333, 1335, 87 L.Ed. 1796.

4 Emphasis supplied.