United States v. Walter Keay Fraser

This is an appeal by the United States from an order of the district court admitting appellee to citizenship. In so ordering the court disapproved of a contrary recommendation which had been made by the examiner.

It appears from the examiner’s report that in November of 1951, immediately preceding the filing of appellee’s petition for naturalization, he had testified and had executed a sworn arrest affidavit wherein he stated that he had been arrested, fined, convicted, and put in jail as follows: “July 4, 1939, Los Angeles, California; drunk; 5 days.” During the course of an investigation conducted subsequently it was learned that appellee had had the following additional drunk arrests to his credit: “December 31, 1930 — PD, Pasadena, California, intoxication and St. 121 and W4-4 — -fined $25.00 or ten days, 30 days and license suspended 90 days. February 7,1941 — PD, Los Angeles, California, drunk- — no disposition. March 25, 1941 —PD, Pasadena, California, intoxication — $10.00 or five days. May 19, 1943 —SO, Modesto, California, drunk; five days work gang, fifteen days suspension.”

At a further preliminary examination conducted in May of 1952 appellee admitted the additional…

(concurring).

Both the opinion of Judge HEALY and that of Judge BONE adequately disclose the single issue sought to be raised by this appeal. It is my individual view that the record furnished by the appellant here is inadequate to warrant a reversal of the District Court.

The only testimony given in the court below which has been furnished as a part of this record is that of the appellee who had testified as follows:

The record does not contain either the affidavit or the form M-400 referred to in this interrogation, and after the witness had given the answer at the end of the foregoing testimony, the subject was dropped.

It is true that the examiner made findings and a report which referred to a sworn arrest affidavit (perhaps the one referred to in the testimony above) and which also referred to a preliminary examination “at which time the petitioner testified under oath, in part to the same effect as he stated in his affidavit.” (Emphasis mine) I assume that the trial judge had an opportunity which has not been afforded this court to read the sworn statements of the petitioner to which the examiner referred. I have no idea how the preliminary examination was phrased, what…

(dissenting).

It seems to me that our decision in this case not only discredits, but virtually overrules, our decision in Del Guercio v. Pupko, 9 Cir., 160 F.2d 799 . I agree with appellant that the only (and decisive) issue before us is whether appel-lee’s false testimony (under oath) during his naturalization proceeding, is a bar to his naturalization. That such false testimony was given is crystal clear. About the only explanation tendered in the lower court was that appellee was ashamed to admit his various arrests (for intoxication) save and except in one instance.

An examination of our Pupko decision will reveal that it is on all fours with the instant case so far as concerns the controlling legal issue before us. That decision shows that the arrest which *847 Pupko concealed from the Naturalization Service was not for a major offense.

I suspect that by “walking around” our Pupko doctrine we will hereafter make a right to naturalization in this Circuit depend in no small measure upon how successfully an applicant appearing before a district court can explain away perjured testimony which concealed information which the government was clearly entitled to have during the…

219 F.2d 844 UNITED STATES of America, Appellant, v. Walter Keay FRASER, Appellee. No. 13985. United States Court of Appeals, Ninth Circuit. February 16, 1955. Lloyd H. Burke, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., Milton T. Simmons, Acting District Counsel, Immigration & Naturalization Service, San Francisco, Cal., for appellant. Walter Keay Fraser, in pro. per. Before HEALY, BONE, and POPE, Circuit Judges. HEALY, Circuit Judge. 1 This is an appeal by the United States from an order of the district court admitting appellee to citizenship. In so ordering the court disapproved of a contrary recommendation which had been made by the examiner. 2 It appears from the examiner's report that in November of 1951, immediately preceding the filing of appellee's petition for naturalization, he had testified and had executed a sworn arrest affidavit wherein he stated that he had been arrested, fined, convicted, and put in jail as follows: "July 4, 1939, Los Angeles, California; drunk; 5 days." During the course of an investigation conducted subsequently it was learned that appellee had had the following additional drunk arrests to his credit: "December 31, 1930 — PD,…