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UNITED STATES v. KESSLER

April 25, 1952

UNITED STATES
v.
KESSLER.



The opinion of the court was delivered by: Clary, District Judge.

Reba Kessler (born Revke Kisilevsky in Chmelnick, Russia, on October 12, 1893) emigrated via Liverpool to the United States, arriving in Philadelphia, Pennsylvania, on December 15, 1909. She secured employment as a dress operator in a clothing factory in Philadelphia and has since her arrival been a resident of that City. On December 10, 1928 she declared her intention to become a citizen of the United States, and on September 24, 1931 executed an Application for a Certificate of Arrival and Preliminary Form for Petition for Citizenship. In answer to Question 29 of that form, she declared that she had never been arrested or charged with violation of any law of the United States or State or any City ordinance or traffic regulation. Thereafter, she followed the ordinary course to citizenship undergoing preliminary examinations before a naturalization examiner, was vouched for by two competent witnesses, and on October 23, 1931 filed in this Court her final Petition for Citizenship No. 110042. In her examinations before a Mr. Stevens, an experienced Naturalization Examiner, she was again orally questioned as to whether she had ever been arrested and again denied ever having been arrested. Her two witnesses, one who had known her twenty years and another who had known her eight years, concurred in her statements that she had never been arrested for violation of any of the laws or ordinances above set forth. On the 29th day of January, 1932, relying upon the truth and good faith of the reports made by her in her Petition for Citizenship and preliminary examinations in connection therewith, and an oath of allegiance taken by her in open court on that day, this Court entered its order admitting her to citizenship in the United States and thereupon the Clerk of this Court issued to her Certificate of Naturalization No. 3435842 attesting to the grant of citizenship.

On September 6, 1949, Reba Kessler was called before the Immigration and Naturalization Service to be interrogated. Why her case was reopened does not appear in this record nor is it relevant, but it had come to the attention of the Department of Justice that she had been arrested 17 times between June 4, 1929 and February 19, 1930 by the Police of the City of Philadelphia. On each occasion she had been charged with "obstructing the highway". Following each arrest she had had a hearing before Dennis Fitzgerald, then a duly elected and qualified Magistrate of the City of Philadelphia, and on each occasion she had been discharged. When on September 6, 1949 she was asked by Samuel Horowitz, a Naturalization Examiner, whether the record of the Department of Public Safety, Bureau of Police, Philadelphia, showing the above arrests referred to her, her answer was "It's my name and address, but I don't recall being arrested so many times." When asked whether she recalled being asked about arrests at the time of her naturalization, her reply was that she didn't remember whether or not they asked that question during the process of her naturalization. Upon further questioning as to whether she had withheld knowledge of the fact from the Naturalization Bureau for fear that citizenship would not be granted her, her reply was "Maybe because I was discharged from each arrest, I didn't consider them an arrest." Certain other questions asked her were not answered upon advice of her attorney who had accompanied her to the interview.

On January 10, 1950, the present action was instituted asking for the revocation and setting aside of the Decree of Naturalization, cancellation of the Certificate of Naturalization issued to her, and praying that she be directed to surrender the said Certificate of Naturalization to the Clerk of this Court for cancellation. After preliminary motions to dismiss were disposed of, the case came on for trial on the 7th day of April, 1952.

At the trial, the fact that she had been arrested on 17 occasions between June 4, 1929 and February 19, 1930 was admitted by the defendant. It was further established by competent testimony that the defendant herein had not only answered untruthfully, in writing, the question in the application relating to arrests but further that she had been independently questioned by Mr. Stevens, the Naturalization Examiner, in her preliminary examinations and had again answered untruthfully that she had never been arrested.

The defendant in her case interposed a twofold defense. She contended first that the alleged crime of "obstructing the highway" was not a crime under any Federal statute or any of the laws of the Commonwealth of Pennsylvania. Further, that the only ordinance of the City of Philadelphia relating to obstruction of the highway involved a civil rather than a criminal penalty and, therefore, her answers in the application and at the preliminary examinations did not constitute a fraud upon the Government in that the crime with which she had been charged was a nonexistent crime for which she could not be validly arrested.

In the alternative and as a second defense, the defendant contended that even assuming that she had been actually arrested, she is a woman without formal education and while the answer given was incorrect, it was a normal and natural mistake of an uneducated person made with no intent to deceive the Government. She contended she honestly believed that because she was discharged on each occasion, her arrests were nullified and that made her answer, in her view, a truthful answer.

This leads to a consideration of what constitutes an arrest. American jurisprudence, Volume 4, Section 4, defines an arrest generally as follows:

    "An arrest, as the term is used in criminal law,
  signifies the apprehension or detention of the person
  of another in order that he may be forthcoming to
  answer an alleged or supposed crime."

In the same section in discussing how an arrest may be effected, there is also contained the following significant language:

    "A peace officer or private person may arrest
  without a warrant a person who is committing a felony
  or who, on reasonable grounds, is suspected of
  committing a felony. An officer or a private person
  may also arrest without a warrant for a breach of the
  peace committed in his presence." (Emphasis
  supplied.)

Words and Phrases, Volume 4, at pages 234 and 235 states as follows:

    "To constitute an `arrest' four requisites are
  involved, a purpose to take the person into the
  custody of the law, under a real or pretended
  authority, and an actual or constructive seizure or
  detention ...

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