Before L. HAND, Chief Judge, and SWAN and FRANK, Circuit Judges.
This Count (unlike the other two, which we shall consider later) raises no question of the statute of limitations, as the alleged offense occurred on June 6, 1946, and the indictment was found on September 28, 1948, within the three-year period ordained by 18 U.S.C.A. § 3282.Defendant argues that the evidence was insufficient to prove that he then made a false oath or that, if he did, he was under oath. But we think the evidence enough to sustain the trial judge's contrary findings.
Defendant further contends, however, that in any case, he committed no crime, because the oath was administered to him during a proceeding in which there was no statutory authority to administer an oath. If so, Obermeier did not commit perjury by then swearing falsely. For the Supreme Court has held that false statements under oath "before one who has no legal authority to administer oaths of a public nature, or before one who * * * [is] authorized to administer some kind of oaths, but not the one which is brought in question, cannot amount to perjury at common law, or subject the party taking it to prosecution for the statutory offense of willfully false swearing * * * the oath must be permitted or required, by at least the laws of the United States, and be administered by some tribunal, officer, or person authorized by such laws to administer oaths in respect of the particular matters to which it relates."*fn1 The same requirement is somewhat differently stated in United States v. Morehead, 243 U.S. 607, at 614, 37 S. Ct. 458, at 460, 61 L. Ed. 926, where the Supreme Court, in upholding a regulation, said: "* * * the assertion of its invalidity must be predicated either upon its being consistent with the statutes or upon its being in itself unreasonable or inappropriate * * * defendant urges that the regulation is inconsistent with the statute, in that it adds to the requirements of the statute still another condition to be performed * * * and hence is legislation, not regulation. But the regulation does not add a new requirement * * * as in Williamson v. either upon its being inconsistent with the S. Ct. 163, 52 L. Ed. 278, 294-297."*fn2
Here, the government, in its brief, distinguishes between (1) a "preliminary examination" held "before filing the petition for naturalization" and (2) a "preliminary hearing" held after the petition has been filed. Had the examination on June 6, 1946 been made in connection with a petition then pending, an oath would have been explicitly authorized by the Nationality Act,*fn3 and the regulations made thereunder.*fn4 But the government concedes (and Dillon, the examiner, so testified) that, on June 6, 1946, when Obermeier made this statement, no petition for his naturalization was pending - since his petition, previously filed, had then been dismissed - and that the hearing was a pre-petition hearing under 8 C.F.R. 370.8.*fn5
The question presented by this Count, then, is whether the examiner had legal authority to administer an oath to Obermeier in such a preliminary examination.
We start with these doctrines: (1) A regulation is presumptively valid, and one who attacks it has the burden of showing its invalidity.*fn6 (2) A regulation or administrative practice is ordinarily valid unless it is (a) unreasonable or inappropriate or (b) plainly inconsistent with the statute.*fn7
The Nationality Act of 1906, Section 1,*fn8 provided that the Bureau of Immigration and Naturalization should "have charge of all matters concerning the naturalization of aliens", and Section 28 provided: "The Secretary of Commerce and Labor*fn9 shall have power to make such rules and regulations as may be necessary for properly carrying into execution the various provisions of this Act." These provisions were somewhat ambiguous, as the other sections of the Act vested the courts with virtually all powers relating to naturalization from the time when the alien first sought naturalization by making his declaration of intention to become a citizen under oath before the court clerk.*fn9a However, after 1906, it became the practice for officials of the Bureau to conduct examinations of applicants for citizenship generally before and sometimes after the petition for naturalization had been filed.*fn10 Regulations, beginning in 1924, provided explicitly for pre-petition examinations.*fn11 And since 1929, the regulations have authorized an oath in pre-petition examinations.*fn12 This practice, and regulations so providing, have been in effect from 1929 to date.*fn13
They were eminently reasonable and appropriate. For the courts, dealing with naturalization, could not have functioned without this administrative assistance.*fn14 The pre-petition examination helped to weed out applicants who were ineligible; the facts brought out in such examinations expedited the administrative assistance given the courts after the filing of petitioners;*fn15 and obviously the facts elicited in pre-petition examinations were generally more reliable if under oath.*fn16
But in 1926, Congress, despite a recommendation from the Commissioner for legislation expressly authorizing an oath in an administrative, pre-petition examination,*fn17 amended the Act of 1906 to provide for "preliminary hearings upon petitions for naturalization" - i.e., after the petitions have been filed.*fn18 This was done after Congress had expressly provided, in 1918, for pre-petition hearings to expedite the naturalization of a special class of aliens - those who were members or prospective members of the United States armed forces in World War I*fn19 (a provision which was substantially re-enacted for aliens similarly situated in World War II.*fn20) And in the Nationality Act of 1940,*fn21 re-codifying the naturalization laws, 8 U.S.C.A. § 733 which provides for post-petition hearings in the usual cases was retained with minor changes not here relevant.*fn22
As against the implications which might be drawn from that history, it is suggested that effect be given to the provision originally enacted in 1918,*fn23 of 8 U.S.C.A. § 727(e) that "Members of the Service may be designated by the Commissioner * * * to administer oaths * * * in matters relating to the administration of the naturalization * * * laws." We think that that provision lacks significance because it merely states what kind of persons may be authorized to administer oaths in naturalization matters.
There remains the fact, however, that, under 8 U.S.C.A. § 727(b), the Commissioner is empowered to "make such rules and regulations as may be necessary to carry into effect the provisions of this subchapter*fn24 and is authorized to prescribe the scope and nature of the examination of petitioners for naturalization as to their admissibility to citizenship for the purpose of making appropriate recommendations to the naturalization courts. * * *" Defendant contends that this grant of authority refers only to the post-petition hearings expressly authorized by § 733, since both sections refer to "petitioners" - i.e., those who have already filed their petitions - who are to be examined "for the purpose of making appropriate recommendations to the naturalization courts." But we do not think that Congress intended to use these terms so narrowly as to make the "preliminary hearing" authorized by 8 U.S.C.A. § 733 exclusive of any other administrative investigation. A sentence of § 727(b), which was added in 1940,*fn24a strongly suggests that the words "petitioner" and "applicant" were used interchangeably by Congress to mean a person seeking naturalization. That sentence reads in part: "Such examination shall be limited to * * * the applicant's*fn24b * * * qualifications to become a naturalized citizen * * *." Moreover, as we have noted above,*fn25 under regulations in force since 1929, the examiner at a post-petition "hearing" provided for by § 733 is to have before him the record of the pre-petition administrative examination. Further, the regulations since 1929 have authorized pre-petition examinations under oath.*fn26 The practice of holding pre-petition examinations was continually reported to Congress by the Commissioner,*fn27 while that body was repeatedly amending the Nationality Act, including § 733, without any change relating to this practice.
These facts, while not necessarily compelling, lead us to the conclusion that Congress has recognized and approved as reasonable the practice, the regulations which provide for it, and the oath which enhances its effectiveness.*fn28 It follows ...