decided: December 20, 1950.
Before L. HAND, Chief Judge, and SWAN and FRANK, Circuit Judges.
FRANK, Circuit Judge.
I. The Third Count
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 that the judgment of conviction on this count must be affirmed.
II. The First Two Counts
1. Defendant admits that he violated 8 U.S.C.A. § 746(a)(1) when, on May 26, 1945, and June 2, 1945, in a "preliminary hearing" upon his petition for naturalization he falsely stated under oath that he had not been a member of the Communist Party. His sole defense to these counts is that the indictment was barred by the statute of limitations.
2. Before the Act of June 25, 1948,*fn29 revising the Criminal Code (Title 18), the period of limitations for the prosecution of many crimes had been three years. But former 8 U.S.C.A. § 746(g) had fixed a five-year period as to conduct made a felony in the Nationality Code.*fn30 The 1948 Act expressly repealed this section, substituting § 3282 of revised Title 18. That new section reads: "Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within three years next after such offense shall have been committed." The Reviser's Note to this section, says that "the 5-year period of limitation for violations of the Nationality Code, provided for in said section 746(g) of title 8, U.S.C. * * * is reduced to 3 years. There seemed no sound basis for considering 3 years adequate in the case of heinous felonies and gross frauds against the United States but inadequate for misuse of a passport or false statement to a naturalization examiner."
The Act of June 25, 1948, became effective September 1, 1948.*fn31 Section 21 of that Act expressly repealed many sections of several statutes, including 8 U.S.C.A. § 746(g). Such a repeal, without more, would have been a legislative pardon or amnesty as to all past offenses under § 746(a)(1).*fn32 However, the repeal section, Section 21 of the 1948 Act, 18 U.S.C.A. §§ 1-370, p. 275, contained a saving clause preserving "any right or liabilities now existing" under the repealed sections. Were we facing here merely a question of the government's "right" to punish or a defendant's "liability" to punishment, under a repealed substantive section imposing criminal liability for an offense, the answer obviously would be that this saving clause preserved the "right" and "liability" even after September 1, 1948, provided they were not then barred by the statute of limitations. But here the pertinent substantive section, 8 U.S.C.A. § 746(a)(1), under which defendant was indicted, was not repealed. It was retained, with unimportant changes in phraseology, as § 1015(a) of revised Title 18.
However, as previously noted, § 746(g) - the statute of limitations pertaining to offenses under § 746(a)(1) - was repealed; it is designated in the schedule attached to the repeal section - Section 21 - of the 1948 Act. The question here, then, is whether the words, "right or liabilities now existing", in the saving clause of that repeal section, included periods of limitation and so served to keep alive the former five-year limitation period with respect to offenses committed within five years of the effective date of the new Act, i.e., September 1, 1948.
The government says it does. The defendant says that, despite the repeal, the five-year period continued to govern from June 25, 1948, when the Act was enacted, until September 1, 1948, when the Act took effect, so that, in that interval, he could have been validly indicted for the crimes he admittedly committed on May 26, 1945, and June 2, 1945, and for which he was indicted in the first two counts. But, says defendant, on and after September 1, 1948, the three-year period governed, and therefore prosecution for those crimes was barred when the indictment was filed on September 28, 1948, i.e., more than three years after the commission of those crimes. For defendant contends that the words, "rights or liabilities now existing", found in § 21 of the 1948 Act, relate only to substantive "rights" and "liabilities," and therefore did not save from the three-year bar of new 18 U.S.C.A. § 3282 any prosecutions not commenced before September 1, 1948.
3. In considering this contention, we must take into account three statutory provisions which were in effect on September 28, 1948, when the indictment was filed: (a) New 18 U.S.C.A. § 3282; (b) § 21 of the 1948 Act; (c) 1 U.S.C.A. § 109. To understand these provisions, we must go into their history.
The Revised Statutes of 1874 contained the following sections:
"Sec. 5598. All offenses committed, and all penalties or forfeitures incurred under any statute embraced in said revision prior to said repeal, may be prosecuted and punished in the same manner and with the same effect, as if said repeal had not been made.
"Sec. 5599. All acts of limitation, whether applicable to civil causes and proceedings, or to the prosecution of offenses, or for the recovery of penalties or forfeitures, embraced in said revision and covered by said repeal, shall not be affected thereby, but all suits, proceedings or prosecutions, whether civil or criminal, for causes arising, or acts done or committed prior to said repeal, may be commenced and prosecuted within the same time as if said repeal had not been made."
"Sec. 13. The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability."*fn33
The significant point, for our purposes, is that Congress considered a separate section - § 5599 - essential to preserve statutes of limitation: It did not consider them saved (1) by the general saving clause, § 13, which included the words "any liability"; or (2) as to criminal "offenses," by the specific saving clause, § 5598.
In 1909, in enacting the Criminal Code,*fn34 Congress - without repealing R.S. sections 13, 5598 and 5599 - included the following two sections which, in slightly altered form, corresponded in wording to sections 5598 and 5599, and which recognized the same distinction between criminal "offenses" and statutes of limitation.
" § 533. All offenses committed, and all penalties, forfeitures, or liabilities incurred prior to January 1, 1910, under any law embraced in, or changed, modified, or repealed by sections 1 to 553, 567, 568, and 571 to 573 of this title, may be prosecuted and punished in the same manner and with the same effect as if the said sections had not been passed.
" § 534. All acts of limitation, whether applicable to civil causes and proceedings, or for the recovery of penalties or forfeitures, embraced in, modified, changed, or repealed by sections 1 to 553, 567, 568, and 571 to 573 of this title, shall not be affected thereby; and all suits or proceedings for causes arising or acts done or committed prior to January 1, 1910, may be commenced and prosecuted within the same time and with the same effect as if said repeal had not been made."*fn35
4. By the Act of March 3, 1933,*fn36 Congress repealed, as obsolete, many sections of the Revised Statutes, including R.S. § 5598. But R.S. § 5599, which, at first both Houses had proposed to repeal, was retained, on the suggestion of the Secretary of War and the Attorney General.*fn37 The Secretary said that, because of Campbell v. Holt, 115 U.S. 620, 6 S. Ct. 209, 29 L. Ed. 483, "repeal of that section might, and probably would, revive certain claims arising in the Civil War and since, now barred by limitation." Significantly he added, "It is thought that the language of the concluding proviso of § 3 of H.R. 9877*fn38 would not avoid this result, since that proviso refers only to 'rights' and 'liabilities' and not to remedies, recourse to which may be barred by limitations."*fn39 Section 3, to which he referred, became Section 3 of the 1933 Act. It read: "No inference shall be raised by the enactment of this Act that the sections of the Revised Statutes repealed by this Act were in force or effect at the time of such enactment: Provided, however, That any rights or liabilities existing under such repealed sections shall not be affected by their repeal."*fn40 The Attorney General concurred in the recommendation that R.S. § 5599 be retained.*fn41 It should be noted that Section 3 of the 1933 Act, regarded as not affecting limitations statutes, is almost identical with § 21 of the 1948 Act.
5.In 1947,*fn42 both R.S. § 13 and § 5599 were incorporated in the U.S.C.A., as 1 U.S.C.A. §§ 109 and 110. Since § 110 - which covers only repeals embraced in the Revised Statutes of 1874 - cannot conceivably apply to the repeal in 1948 of 8 U.S.C.A. § 746(g), we turn to § 109, formerly R.S. § 13.*fn43
As we have already pointed out, because this section was made part of the Revised Statutes of 1874 together with § 5599, we think Congress did not regard § 13, now 1 U.S.C.A. § 109, as covering the subject of statutes of limitation. Moreover (in line with the views expressed by the Secretary of War above quoted), the Supreme Court, in three cases interpreting former § 13, has held that it saves existing substantive rights and liabilities from repeal but does not preserve "remedies" or "procedure" prescribed in the repealed statute.
In Great Northern Railway Co. v. United States, 208 U.S. 452, 28 S. Ct. 313, 317, 52 L. Ed. 567, this question arose: The Elkins Act of 1903 had been amended in June 1906 by the Hepburn Act, 49 U.S.C.A. § 41 et seq., which changed the procedure before the Interstate Commerce Commission and modified the means of enforcing the Commission's orders in the courts. Section 10 of the Hepburn Act provided: "That all laws and parts of laws in conflict with the provisions of this Act are hereby repealed, but the amendments herein provided for shall not affect causes now pending in courts of the United States, but such causes shall be prosecuted to a conclusion in the manner heretofore provided by law." The defendants were indicted in November 1906, after enactment of the Hepburn Act but for violations of the Elkins Act which had occurred in 1905. The defendants contended that the indictment was barred by the Hepburn Act because the indictment was not pending when that Act became a law. They argued that new § 10 was inconsistent with R.S. § 13 which was therefore wholly inapplicable, so that the only rights and liabilities saved were those described in new § 10, i.e., those with respect to which suits were pending when the new statute became effective. The Court rejected this argument. It said that R.S. § 13 and new § 10 dealt with different subjects: (1) R.S. § 13 preserved only the liabilities incurred for past offenses under the repealed statute, and did not preserve the old remedies. (2) New § 10 preserved the old remedies, but only as to cases pending in the courts; as to other cases - including prosecutions (for past offenses) saved by R.S. § 13 - the remedies under the new statute would apply.*fn44
In Hertz v. Woodman, 218 U.S. 205, 218, 30 S. Ct. 621, 625, 54 L. Ed. 1001, the Court said: "The repealing act here involved includes a saving clause, and if it necessarily, or by clear implication, conflicts with the general rule declared in § 13, the latest expression of the legislative will must prevail. In the case of Great Northern Railway Company v. United States * * * the question was whether the saving clause in the Hepburn act was so plainly in conflict with the rule of construction found in § 13 as to limit the actions or liabilities saved to those enumerated therein; but the court held that, as the later clause applied to remedies and procedure, it was not, by implication, in conflict with the general provision of § 13, which saved penalties, forfeitures, and liabilities."*fn45
In Hallowell v. Commons, 239 U.S. 506, 36 S. Ct. 202, 203, 60 L. Ed. 409, a suit had been begun to establish title to an allotment made to an Indian. The determination of such questions had at one time been left exclusively to the Secretary of Interior, but subsequently this power was taken from the Secretary and transferred to the federal courts. Thereafter, and while to suit was pending, the exclusive power to pass on such issues was again given to the Secretary. The statute made no exception for pending litigation. It was urged that, under R.S. § 13, the statute should be construed so as to save the pending suit. The Supreme Court, answering this contention said: "It made his [the Secretary's] jurisdiction exclusive in terms, it made no exception for pending litigation, but purported to be universal, and so to take away the jurisdiction that for a time had been conferred upon the courts of the United States. The appellant contends for a different construction on the strength of Rev.Stats. § 13, * * * that the repeal of any statute shall not extinguish any liability incurred under it (Hertz v. Woodman, 218 U.S. 205, 216, 30 S. Ct. 621, 54 L. Ed. 1001, 1006), and refers to the decisions upon the statutes concerning suits upon certain bonds given to the United States (U.S. Fidelity & Guaranty Co. v. United States, 209 U.S. 306, 28 S. Ct. 537, 52 L. Ed. 804). But, apart from a question that we have passed, whether the plaintiff even attempted to rely upon the statutes giving jurisdiction to the courts in allotment cases, the reference of the matter to the Secretary, unlike the changes with regard to suits upon bonds, takes away no substantive right, but simply changes the tribunal that is to hear the case."*fn46
Since 1 U.S.C.A. § 109, formerly R.S. § 13, saves merely substantive "rights" and "liabilities," we think it does not save limitation statutes as to past offenses. For usually, a statute of limitations is considered no part of a "right" or "liability," but as affecting the "remedy" only.*fn47 On that basis, it has been held that, until the expiration of the period named in such a statute, the period may validly be lengthened or shortened by a later statute,*fn48 and that, where no criminal liability is involved,*fn49 the legislature may revive a right barred by a former statute of limitations.*fn50 In other words - except in the unusual instances where the statute creating a substantive right makes the period of limitation a part or qualification of the right itself*fn51 - a limitation statute establishes no vested substantive right or unalterable substantive liability.*fn52 We know, of course, that the words "substance," "procedure," and "remedies" have no fixed, invariant, meanings, and that what they signify depends upon the particular context.*fn53 We think, however, that, for the reasons we have canvassed, the context of 1 U.S.C.A. § 109 and § 21 of the 1948 Act shows that they were not intended to include, in "rights" or "liabilities," statutes of limitation.*fn54
6. Language necessary to save both substantive "rights and liabilities" and their remedies, including statutes of limitation, has often been used where that was the Congressional purpose. Thus in the 1906 Nationality Act Congress said: "For the purpose of the prosecution of all crimes and offenses against the naturalization laws of the United States which may have been committed prior to the date when this Act shall go into effect, the existing naturalization laws shall remain in full force and effect."*fn55 Substantially the same language appears in the 1926 and 1940 Naturalization Acts.*fn56 Had Congress had a similar intention here, "it would have been so easy to have said so."*fn57
7. We note, without adopting or rejecting, this additional suggested ground for the conclusion that the three-year statute governs: The Reviser's Note to § 3282 of new 18 U.S.C.A. states: "Section 582 of title 18, U.S.C., 1940 ed., and section 746(g) of title 8, U.S.C., 1940 ed., * * * were consolidated. * * * The proviso contained in the act of 1927 [i.e., 18 U.S.C. § 582] 'That nothing herein contained shall apply to any offense for which an indictment has been heretofore found or an information instituted, or to any proceedings under any such indictment or information,' was omitted as no longer necessary."*fn58 This may mean that new § 3282 includes all that had been contained in the omitted proviso, just as if the proviso had been re-enacted in § 3282. If so, it is arguable that, since there were saved only those proceedings, for past offenses, which had been begun before the effective date of the new Act, Congress did not intend to save proceedings - like that in the present case - not yet begun on that date.*fn59
8.The government contends, however, that, in any event the War Time Suspension of Limitations Act*fn60 preserved its right to prosecute this action. That Act, so far as pertinent, is substantially the same as the Acts interpreted by the Supreme Court in United States v. Noveck, 271 U.S. 201, 46 S. Ct. 476, 70 L. Ed. 904,*fn61 United States v. McElvain, 272 U.S. 633, 47 S. Ct. 219, 71 L. Ed. 451,*fn62 and United States v. Scharton, 285 U.S. 518, 52 S. Ct. 416, 76 L. Ed. 917.*fn63 As so interpreted, it suspends a statute of limitations only when fraud or attempted fraud against the United States (or one of its agencies) "is an ingredient under the statute defining the offense," and does not, absent such a statutory definition, apply to perjury or false swearing, even when the United States is directly interested.*fn64 Nothing in 8 U.S.C.A. § 746(a)(1), under which defendant was indicted, makes fraud an ingredient of the crime.
Accordingly, we reverse as to the first two counts, but affirm as to the third count. Since the two-year jail sentences on all three counts run concurrently, the only practical effect of the decision is to relieve defendant of the $1000 fine imposed as to the first count.