UNITED STATES v. KRAMER, 262 F. 395

FOSTER, District Judge (after stating the facts as above). In the absence of an opinion by the District Court, we assume the judgment rested upon the conclusion that evidence of acts of disloyalty occurring after defendant’s admission to citizenship was not sufficient to show want of good faith and fraudulent intention at the time he was admitted.

The statute, under the provisions of which defendant was admitted to citizenship, provides that if a naturalized citizen returns to the country of his nativity, or goes to any other foreign country, and takes permanent residence therein, within five years after his certificate of citizenship is issued to him, it shall be prima facie evidence of lack of intention to become a permanent citizen at the time of filing his application for citizenship, in the absence of countervailing evidence.

Section 15, Act June 29, 1906 (Comp. St. § 4374); Luria v. U. S., 231 U. S. 9, 34 Sup. Ct. 10, 58 L. Ed. 101. Congress thereby clearly indicated that subsequent acts of a naturalized citizen would be sufficient evidence of his fraudulent intention at the time of his admission. If mere removal is suflicicnt evidence of fraud, why not subsequent acts of disloyalty, or statements indicating his want of allegiance?

In the nature of things it is impossible for the government to make more than a cursory examination into the loyalty or the general character of the applicant for citizenship before admission, and the court must of necessity rely upon the good faith and truthfulness of the applicant when appearing before it and taking the oath of allegiance. In a criminal case, a man’s intention may be judged by his acts.

A conspiracy to defraud is usually proven by showing what the defendants did after the date upon which the conspiracy is alleged to.have been formed, and the jury may consider such evidence in opposition to the testimonyoí defendant on the question of intention, and render a verdict of guilty upon it. Why not the same rule in a suit to cancel a certificate of naturalization ?

American citizenship is a priceless possession, and one who seeks it by naturalization must do so in entire good faith, without any mental reservation whatever, and with the complete intention of yielding his absolute loyalty and allegiance to the country of his adoption. If he does not, he is guilty of fraud in obtaining his certificate of citizenship. There can be no doubt that, had the defendant in this case been guilty of the utterances with which he is charged before his naturalization, and that fact had been known to the court, he would not have been admitted.

The proof makes out a prima facie case of the disloyalty of the defendant, and shows his continuing allegiance to the German emperor. We think the court might well have rested a judgment of cancellation upon it, and it was error to dismiss the bill. U. S. v. Ellis, (C. C.) 185 Fed. 546; U. S. v. Olsson (D. C.)196 Fed. 562; U. S. v. Wursterbarth (D. C.) 249 Fed. 908; U. S. v. Swelgin (D. C.) 254 Fed. 884. In view of a new trial, we deem it well to say that it is settled that a suit to cancel a certificate of naturalization is a proceeding in equity. Luria v. U. S., supra.

In this case the bill conforms to equity rule 25 (198 Fed. xxv, 115 C. C. A. xxv), contains a plain statement of the ultimate facts upon which the plaintiff asks relief, and is sufficient. The affidavit annexed to the bill shows, not only the authority, but the absolute duty, of the United States attorney to institute the proceedings under the provisions of the statute. For the error in dismissing the bill the judgment is reversed, and the case remanded for further proceedings. Reversed and remanded.