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United States v. Kessler.

May 13, 1954

UNITED STATES
v.
KESSLER.



Author: Biggs

Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.

BIGGS, Chief Judge.

The proceeding at bar was brought in the court below in January 1950 to cancel the certificate of naturalization issued by that court in 1932 to Reba Kessler, born Revke Kisilevsky, in Chmelnick, Russia, in 1893, she having emigrated to Philadelphia in 1909. The law in effect at the time of Kessler's naturalization was the "Basic Naturalization Statute", 34 Stat. 596 as amended and supplemanted by the Act of March 2, 1929, 45 Stat. 1512.

The complaint for denaturalization alleged that Kessler in her petition for naturalization filed in 1931 represented that she had never been arrested.*fn1 Kessler in her answer denied that she had answered "That she had never been arrested'", but went on to stay that in her petition for naturalization "* * * she was asked, among other things, 'Have you ever been arrested or charged with the violation of any law of the United States or State or any city, ordinance or traffic regulation', and that she * * * answered 'No.' to this question." The complaint for denaturalization also alleged that the court below, relying on the truth and good faith of Kessler's reports made in her petition for naturalization, entered its order admitting her to citizehship of the United States and issued a Certificate of Naturalization. In her answer Kessler admitted the truth of these allegations. The complaint further alleged that Kessler had been "arrested" seventeen times between June 4, 1929 and February 19, 1930 in Philadelphia, charged with "Obstructing highway", and that each time she was "Discharged" by Magistrate Fitzgerald of Philadelphia. To these allegations the following answer was made: "The defendant admits that between June 4, 1929 and February 19, 1930 she had been arrested at the times and places and on the charges set forth in * * * the complaint. She denies that her * * * representations were false and fraudulent * * *".

Thereafter in her answer Kessler asserted serted a series of defenses the substance of which was that she had not violated any law of the United States or of the Commonwealth of Pennsylvania or a city ordinance or traffic regulation; that when she was arrested for "Obstructing highway" she did not consider herself as having been arrested or charged with a violation of any law, ordinance or traffic regulation and that therefore her answer to question 29*fn2 was correctly in the negative and was made in good faith.

At the trial Kessler testified in pertinent part that she answered "No" to Question 29 because she understood that she was "freed on the arrest, so * * * I didn't commit any crime or anything. I didn't do anything wrong, and that is why * * * I answered 'No'. I didn't mean to lie.I didn't have any intention to say anything that * * * wasn't true, but that was what I understood. I didn't understand at that time * * *". In respect to these defenses the court below found (1) that Kessler's arrests were based on a charge which constituted an indictable offense, viz., a "breach of the peace" and that Kessler had been legally arrested; and (2) that the United States had to prove not only that her answer was false but had been made "with knowledge of falsity and in a willful and deliberate attempt to deceive the Government as to a material fact in the naturalization process." See 104 F.Supp. at pages 437-438.

As stated the court below found that Kessler had committed a "breach of the peace" and that this was an indictable offense in 1929 and 1930. We cannot concur in this ruling. The United States is bound upon the record made by the entries in the magistrate's docket which we have quoted above and there was no such offense as "Obstructing highway".*fn3 Of course, Kessler could have been legally arrested for a breach of the peace, committed in the presence of the arresting peace officer. Commonwealth v. Rubin, 1923, 82 Pa. Super. 315; see Commonwealth ex rel. v. Bowman, 1904, 29 Pa.Co.Ct.R. 635, 636; Commonwealth v. Doe, 1933, 109 Pa.Super. 187, 189, 167 A. 241, 242. Cf. Pa. Act of April 20, 1869, P.L. 1187, 53 P.S.Pa. § 6858; Commonwealth v. Lucas, 1921, 30 Pa.Dist. 963. A breach of the peace is "a disturbance of public order by an act of violence or by any act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community." Commonwealth v. Sherman, 1930, 14 Pa.Dist. & Co.R. 4, 12. Obstructing the highway with violence or threat of violence would constitute a breach of the peace and this would constitute an offense for which Kessler could have been legally arrested. But there is no evidence or even a suggestion that the picketing or the obstructing of the highway took place with violence or the threat of it. Indeed all of the evidence looks the other way. Compare the crime of "disorderly conduct". See the Act of June 25, 1895, P.L. 271, as amended by the Act of May 2, 1901, P.L. 132, and compare the annotations in 18 P.S.Pa. § 4406. But one cannot claim that a person was arrested for "obstructing highway", a crime then, and probably now, unknown to the law of Pennsylvania, and assert that the arrest was one made in accordance with law.*fn4 We therefore disagree agree with the ruling of the court below that the arrests were legal and valid. See 104 F.Supp. at page 437. As a matter of law they were illegal and invalid. They were at best "false arrests",*fn5 Meyers v. Tygh, 1920, 75 Pa.Super. 271, 272, and as a matter of law Kessler was subjected to "false imprisonments."*fn6

Was it the intention of the framers of Question 29 to compel an applicant for citizenship to give information respecting "false arrests" as well as legal and valid arrests? The applicable regulation, Rule 1, Subdivision G, par. 2, is set out in the footnote*fn7 and it will be observed that the regulation requires examiners to cover thoroughly the question of "possible" arrests. The adjective "possible" seems to imply at least some regularity of procedure.It is frequently used in ordinary parlance as the equivalent of "permissible," as for example, to describe the conduct of an agent acting within the scope of his authority, express or implied.*fn8 The adjective clouds the regulation but we think it was not the intention of its framers to include false arrests within the term "possible arrests" and therefore within the scope of Question 29. To rule otherwise would be to treat the word "possible" under the circumstances of this case as the substantial equivalent of "false" or "invalid." It must also be pointed out, and this may be treated as dispositive of any question raised by the use of the term "possible" in the regulations, that the contents of the regulations, insofar as the record shows, were never brought to Kessler's attention.

Indeed, the form of Question 29 as it existed at the time that it was presented to Kessler for answer, suggests a grammatical solecism rather than an intent on the part of the framers of the question to compel an applicant to answer as to whether or not he or she had ever been illegally arrested or subjected to false arrest. If the word "for" is inserted before the word "or" (first occurrence) in Question 29 the true intent of its framers would, we believe, have been adequately expressed. We think that a reading of the question by the ordinary individual, untrained in the niceties of the English language, as are many immigrants, would probably lead him to believe that the inquiry was directed to any arrest to answer for a crime or charge cognizable under the criminal law. Such is the precise basis for inquiry as to arrests used by the Immigration and Naturalization Service at the present time. See the question now employed as set out in the last paragraph of note 2, supra. We conclude that the Immigration and Naturalization Service did not intend to narrow its inquiry as to arrests by using the new present form of question employed since September 25, 1951. We are of the opinion that Kessler's asserted interpretation of the scope of the question was a reasonable one for she had been informed by Magistrate Fitzgerald seventeen times, and by counsel for her union on numerous occasions, that she had committed no crime cognizable at law. Certainly the answer which she gave in 1931 to Question 29 would be a truthful answer to the question as it exists today on every questionnaire employed by the Immigration and Naturalization Service. We can scarcely take the position that that which would constitute a truthful answer today was a lie in 1931.

We are also of the opinion that if the term "arrested" as used in Question 29 was intended to include a false or illegal arrest at least of the kind to which Kessler was subjected, the Immigration and Naturalization Service passed beyond the borders of its statutory authority. It was the intention of Congress in enacting the Naturalization Act of 1929, as it was in enacting the earlier and later Acts governing naturalization and immigration, to exact from the applicant for citizenship any information which would be pertinent to and shed light upon the moral character of the applicant. The "false arrest" to which Kessler was subjected affirmatively appears as false as a matter of law on the face of the record - the magistrate's docket - because the "arrest" was for a purported offense which had no existence in the law of Pennsylvania. The persons who made the "arrests" were mere trespassers. See Baird v. Householder, 1858, 32 Pa. 168, 169, discussed in note 6, supra. The apprehendings of Kessler, subjecting her to false or illegal detentions of the kind presently before us, cannot be deemed properly to throw light upon her moral character. The inquiry under the circumstances was too remote from the purpose of the statute to stand as valid.*fn9

In conclusion we state that the complaint, as has been pointed out hereinbefore, alleges as its gravamen that Kessler fraudulently obtained citizenship by misrepresenting a material fact to the court below. We conclude that the United States has failed to make out a case.It has not proved that Kessler's repeated "arrests" were based on a charge which stated any offense at all, or that her answer to Question 29 was made "with knowledge of falsity and in a willful and deliberate attempt to deceive the government," or that the scope of the inquiry posed by the question properly went to false or illegal arrests. There was failure to prove that Kessler attempted to deceive the United States as to a fact material to the naturalization process, to employ the language of the court below. It must be borne in mind that a very high degree of proof is required in order to revoke citizenship.

As was said in Schneiderman v. United States, 1943, 320 U.S. 118, 122, 63 S. Ct. 1333, 1335, 87 L. Ed. 1796, "In its consequences it [the revocation of citizenship] is more serious than a taking of * * * property, or the imposition of a fine or other penalty. * * * But such a right once conferred should not be taken away without the clearest sort of justification and proof." and, "Especially is this so when the attack is made long after the time when the certificate of citizenship was granted and the citizen has meanwhile met his obligations and has committed no act of lawlessness." See also Baumgartner v. United States, 1944, 322 U.S. 665, 64 S. Ct. 1240, 88 L. Ed. 1525.

The judgment of the court below will be reversed and the case will be remanded with directions ...


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