United States v. Franklin, 10188.

Decision Date02 May 1951
Docket NumberNo. 10188.,10188.
PartiesUNITED STATES v. FRANKLIN.
CourtU.S. Court of Appeals — Seventh Circuit

COPYRIGHT MATERIAL OMITTED

Richard L. Ritman, H. B. Ritman, Chicago, Ill., Ritman & Ritman, Chicago, Ill., for appellant.

Otto Kerner, Jr., U. S. Atty., Robert J. Downing, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before FINNEGAN, LINDLEY and SWAIN, Circuit Judges.

FINNEGAN, Circuit Judge.

Defendant, an alien, appeals from a judgment upon the finding of guilty by a jury on all counts of an indictment charging that on six separate occasions he knowingly, wilfully and unlawfully falsely represented himself to be a citizen of the United States without having been naturalized or admitted to citizenship, or without otherwise being a citizen of the United States, whereas in truth and in fact he well knew that he was not a citizen of the United States.

Counts one to five, inclusive, charge a violation of 8 U.S.C.A. § 746(a)(18). Count six charges a violation of 18 U.S. C.A. § 911. Count seven charges defendant did unlawfully, knowingly and wilfully fail and refuse to register as an alien of the United States in violation of 8 U.S. C.A. §§ 451-460, inclusive, 8 U.S.C.A. § 452.

Defendant contends, as to counts one through six, that the statutes involved are unconstitutional because (a) Congress has no power to enact such legislation, (b) the statutes are repugnant to the tenth amendment because they infringe on police powers reserved to the several states, and (c) the statutes are vague and ambiguous, and that the due process clause of the Fifth Amendment and requirements of the Sixth Amendment are contravened. He further contends that the evidence does not warrant a guilty finding on counts one through six, that prosecution under count seven is barred by the statute of limitations, and that the trial court erred with respect to giving and refusing to give certain instructions.

The evidence for the Government established:

Under count one, that in an interview with two special agents of the Federal Bureau of Investigation, on September 18, 1945, concerning his connection with Artkino Pictures, Inc., a distributor of Russian motion picture films, defendant was asked by one of the agents where he was born and he answered in New York City.

Under the second count, that on October 4, 1947, in an interview with two special agents of the Federal Bureau of Investigation, one of whom was present at the interview September 18, 1945, defendant was told they were investigating his claim to citizenship and his previous claim that he was born in New York City. He was then asked by one of the agents "whether he was a citizen of the United States" and he answered "I am." Three months later, in an interview at the office of the Federal Bureau of Investigation, in Chicago, defendant said he was born in Russia, and that he had previously represented he was born in New York "for good business and social reasons." At this interview he also said he was not registered under the Alien Registration Act.

Under count three, that on January 25, 1943, the defendant registered to vote, signed duplicate registration cards which contained the statement: "I hereby swear (or affirm) that I am a citizen of the United States * * * and that I am fully qualified to vote and all of the above answers are true." The information on the registration cards was given by defendant under oath to the registration officer. Having thus registered, the defendant appeared on April 11, 1944, in precinct 50, ward 46, in Chicago, and made application for a ballot and voted in the primary election held on that day in Chicago. He signed an application for ballot which contained, among other statements, "I hereby certify that I am registered * * * and I am qualified to vote."

Under count four, that defendant made an application for a ballot and voted in the general election held in Chicago November 7, 1944, in the same precinct and ward. He signed the application for ballot containing the statement: "I hereby certify that I am registered * * * and I am qualified to vote."

Under count five, that in an employment application made by defendant to the Froehling Supply Company on September 4, 1946, he represented he was born in N. Y. C., presumably meaning New York City.

Under count six, that on November 22, 1948, defendant signed and filed an employment application with the Stronghold Screw Products Company, and in answer to the question: "Citizen of U. S.?" defendant answered "Yes."

Under count seven, on September 18, 1945, defendant told a special agent of the Federal Bureau of Investigation that he was not registered under the Alien Registration Act. Other evidence received at the trial showed he was an alien and not registered under the Act. No evidence was offered on behalf of defendant.

The statutes involved relate to the conduct of aliens after their admission into this country and before they become citizens of the United States. In United States ex rel. Volpe v. Smith, 289 U.S. 422, 53 S.Ct. 665, 667, 77 L.Ed. 1298, a deportation case, Justice McReynolds said: "The power of Congress to prescribe the terms and conditions upon which aliens may enter or remain in the United States is no longer open to serious question. Turner v. Williams, 194 U.S. 279, 24 S.Ct. 719, 48 L.Ed. 979; Low Wah Suey v. Backus, 225 U.S. 460, 468, 32 S.Ct. 734, 56 L.Ed. 1165; Bugajewitz v. Adams, 228 U.S. 585-591, 33 S.Ct. 607, 57 L.Ed. 978."

In United States v. Frederick, D.C., 50 F.Supp. 769-772, affirmed 5 Cir., 146 F.2d 488, we find: "that Congress may exclude aliens from the United States, prescribe the conditions under which they may enter, provide for their supervision, regulate their conduct, and fix their rights while here."

The Federal Government has broad constitutional powers in determining when aliens should be admitted to the United States, the period they may remain, regulation of their conduct before naturalization and the terms and conditions of their naturalization. In Hines v. Davidowitz, 312 U.S. 52-66, 61 S.Ct. 399, 85 L.Ed. 581, the Court said: "* * * the regulation of aliens is so intimately blended and intertwined with responsibilities of the national government that where it acts * * * on the same subject, `the act of congress * * * is supreme'."

Section 746(a)(18), 8 U.S.C.A., has been held constitutional by this court in United States v. Tandaric, 7 Cir., 152 F.2d 3, 5, also in the Second Circuit in United States v. Achtner, 144 F.2d 49. The Tandaric case also held that this section did not contravene the tenth amendment, nor was it repugnant to the due process clause of the Fifth Amendment. We find nothing that conflicts with the Sixth Amendment.

The defendant also contends that the indictment failed to inform him of the nature and cause of the accusation, and is vague and ambiguous. In the disposition of such a contention in the Tandaric case, the learned judge held that "Men of common intelligence will have little difficulty in determining what is prohibited by it." An indictment which charges a statutory crime by following substantially the language of the statute is amply sufficient provided that its generality neither prejudices defendant in the preparation of his defense nor endangers his constitutional guarantee against double jeopardy, and such rule is especially applicable after verdict. United States v. Achtner, 2 Cir., 144 F.2d 49. An indictment in the wording of the statute is sufficient. Smiley v. United States, 9 Cir., 181 F.2d 505. The statutes in question are not vague and ambiguous, they contain all the elements of the offenses intended to be punished. Congress had the power to enact 18 U.S.C.A. § 911, and the statute does not violate the constitution.

A fraudulent purpose in making a false claim of citizenship is not essential to offense under statute and consequently the indictment need not contain an allegation, nor need there be proof as to defendant's fraudulent purpose in making such claim. DePratu v. United States, 9 Cir., 171 F.2d 75. Allegations in the indictment charging a fraudulent purpose are surplusage.

Defendant contends that prosecution under count seven is barred by the three year statute of limitations. The Government urges that this question was not raised in the trial court and is presented here for the first time. The record (p. 146) shows that on May 15, 1950, defendant filed in the office of the clerk of the trial court his motion to dismiss the cause and to acquit the defendant. Point one reads as follows: "That as has been formerly urged before trial all the counts in said indictment should have been and now at the close of all the evidence should be stricken since the offenses therein alleged have been repealed and are otherwise barred by the statute of limitations in such cases made and provided." (Emphasis supplied.)

A plea of the statute of...

To continue reading

Request your trial
33 cases
  • Com. v. Geagan
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 1 Julio 1959
    ...United States v. Goldman, 277 U.S. 229, 48 S.Ct. 486, 72 L.Ed. 862; Capone v. Aderhold, 5 Cir., 65 F.2d 130, 131; United States v. Franklin, 7 Cir., 188 F.2d 182, 186. None of the foregoing defences was raised. The defendants' plea in substance that they cannot be tried on the present indic......
  • Christian v. United States
    • United States
    • D.C. Court of Appeals
    • 28 Septiembre 1978
    ...v. Kenner, 354 F.2d 780, 785 (2d Cir. 1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1223, 16 L.Ed.2d 301 (1966); United States v. Franklin, 188 F.2d 182, 186 (7th Cir. 1951); Moore's Federal Practice, supra at Challenges to the validity of an indictment (other than it fails to state an offens......
  • Etuk v. Slattery
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 27 Junio 1991
    ...for requiring the registration of aliens was to aid the government in regulating and monitoring aliens, see United States v. Franklin, 188 F.2d 182, 187 (7th Cir.1951), we agree with the district court that IRCA reflects a congressional intent to broaden the purposes for which registration ......
  • Toussie v. United States
    • United States
    • U.S. Supreme Court
    • 2 Marzo 1970
    ...v. United States, 235 F.2d 710 (C.A.8th Cir.), cert. denied 352 U.S. 880, 77 S.Ct. 102, 1 L.Ed.2d 81 (1956). 17. United States v. Franklin, 188 F.2d 182 (C.A.7th Cir. 1951). 18 United States v. Guertler, 147 F.2d 796 (C.A.2d Cir. 1945); see n. 8, supra. 19 See Fogel v. United States, 162 F.......
  • Request a trial to view additional results
4 books & journal articles
  • Election law violations.
    • United States
    • American Criminal Law Review Vol. 45 No. 2, March 2008
    • 22 Marzo 2008
    ...and willful false representation of United States citizenship (but without any stated purpose). See, e.g., United States v. Franklin, 188 F.2d 182 (7th Cir. 1951); Fotie v. United States, 137 F.2d 831 (8th Cir. (202.) Omnibus Consolidated Appropriations Act, Pub. L. 104-208, [section] 216(a......
  • ELECTION LAW VIOLATIONS
    • United States
    • American Criminal Law Review No. 58-3, July 2021
    • 1 Julio 2021
    ...applicable to each statutory violation). 434. U.S.S.G., supra note 209, § 2H2.1. 435. 18 U.S.C. § 1015(f); see United States v. Franklin, 188 F.2d 182, 186 (7th Cir. 1951) (holding that defendant made a false representation of citizenship when he voted knowing that he was an alien and not a......
  • Election Law Violations
    • United States
    • American Criminal Law Review No. 59-3, July 2022
    • 1 Julio 2022
    ...A (indexing Guidelines applicable to each statutory violation). 442. Id. § 2H2.1. 443. 18 U.S.C. § 1015(f); see United States v. Franklin, 188 F.2d 182, 186 (7th Cir. 1951) (holding that defendant made a false representation of citizenship when he voted knowing that he was an alien and not ......
  • Election law violations.
    • United States
    • American Criminal Law Review Vol. 47 No. 2, March 2010
    • 22 Marzo 2010
    ...to each statutory violation). (214.) [section] 2H2.1. (215.) 18 U.S.C. [section] 1015(f) (2006); see, e.g., United States v. Franklin, 188 F.2d 182, 186 (7th Cir. 1951); cf. 18 U.S.C. [section] 911 (2006) (prohibiting a noncitizen's knowing and willful false representation of United States ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT