Chow Bing Kew v. United States, 15251.
| Decision Date | 21 October 1957 |
| Docket Number | No. 15251.,15251. |
| Citation | 248 F.2d 466 |
| Parties | CHOW BING KEW, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
COPYRIGHT MATERIAL OMITTED
Forrest E. Macomber, Stockton, Cal., Kenneth G. McGilvray, Sacramento, Cal., Arthur J. Phelan, San Francisco, Cal., for appellant.
Lloyd H. Burke, U. S. Atty., San Francisco, Cal., Robert E. Woodward, Asst. U. S. Atty., Sacramento, Cal., for appellee.
Before DENMAN, Chief Judge, and BONE and FEE, Circuit Judges.
Writ of Certiorari Denied December 9, 1957. See 78 S.Ct. 259.
Chow Bing Kew, hereafter Chow, appeals from his conviction in the District Court for the Northern District of California, Northern Division, of a violation of Section 911 of 18 U.S.C. in January, 1952 and of a violation of Section 1001 in April, 1953. He was sentenced to 18 months in prison for each of the two offenses, the sentences to run concurrently, and fined $1,000 on the first and $5,000 on the second. The case was tried without a jury, and no findings were requested. F.R.Crim.P., rule 23(c), 18 U.S.C.
The indictment, consisting of two separate counts, one charging the 1952 violation of Section 911, Title 18 U.S.C. and the other 1953 violation of Section 1001, Title 18 U.S.C., reads as follows:
Since no one is named as committing the crime in the second count, the district court had no jurisdiction in personam to try Chow.1 Undoubtedly it was intended by the phrase "(hereafter called said defendant)" in the first count that the words "said defendant" would be inserted before the words "did unlawfully" etc., of the second count. The trial court cannot supply the omission and thus create jurisdiction. Nor can the defendant in effect indict himself by treating the second count as if he were therein named.
The judgment on this second count is reversed and it is ordered dismissed.
1. Did Chow make a Willfully False Representation of Citizenship in Violation of Section 911, Title 18 U.S.C.?
Section 911, as far as pertinent, provides:
"Whoever falsely and willfully represents himself to be a citizen of the United States shall be fined not more than $1,000 or imprisoned not more than three years, or both."
In construing this statute it is pertinent that it was an amendment to a prior statute which had made wilfulness something that had to do with a wrongful purpose. That statute reads in pertinent part:
"* * * whoever, for any fraudulent purpose whatever, shall falsely represent himself to be a citizen of the United States * * * shall be punished." 35 Stat. c. 321, § 79, p. 1103.
The precise meaning of the word "willfully" depends upon the context in which it is used.2 In view of the amendment of the above quoted statute from which Section 911 was derived, we think it clear that the government in a prosecution under Section 911 need not show that the misrepresentation was made for a fraudulent purpose, and that "willfully" as used in this section means only that it must be proved beyond a reasonable doubt that the misrepresentation was voluntarily and deliberately made.3
Appellant's contention is that the prosecution failed to maintain its burden of proof on this issue since it offered no direct evidence that he "willfully" signed a printed renewal application for a state license costing but five dollars to sell beverages at a store in Oakley owned by himself and other partners.
This application contained twelve questions, the eighth being, "Are you a citizen of the United States?", to which the answer typed in on the application form when appellant signed it is "yes".
The application appellant signed contains the following:
"I have read the foregoing application and know the contents thereof and each and all of the statements therein made are true; * * * that no person other than the applicant or applicants has any direct or indirect interest in the applicant\'s or applicants\' business to be conducted under the license(s) for which this application is made."
The uncontradicted testimony summarized by the court is that the appellant is:
"* * * the president of several corporations operating supermarkets as well as engaged in the business of General merchant, grocery store, meat market, furniture store, drug store, department store, cattle business, rancher, and Northwestern Development Company, uranium business, farmer, and * * * has amassed a fortune of half a million dollars while so engaged * * *."
Also uncontradicted is the testimony of appellant's agent that in the course of his business, appellant signs 200 to 300 business documents a week.
One Helton, who was supervisor of the partnership's many stores, seeking a renewal of the five dollar state license to sell alcoholic beverages at the partnership's Oakley store applied therefor to the office of the State Board of Equalization at Martinez. Helton testified that a clerk in the office of the Board typed up an application form to be signed by appellant, and advised Helton that the form required the verified signature of a member of the partnership. Although California law requires that the names of all partners appear on the form, only appellant's name was typed thereon by the clerk who further typed "yes" on the form in answer to the printed question. "Are you a citizen of the United States?" Helton stated he then took the filled-in application to appellant's office where, without reading it, appellant signed it. Thereafter Helton took it to a notary who signed the form's verification though appellant never appeared before him. Helton thereafter mailed it to Sacramento.
The above testimony, unshaken on cross-examination, might nevertheless be disbelieved by the judge and the question would then arise whether eliminating that testimony the mere signed document itself proved willfulness. We think under the above cases that it does not.
The government contends, however, that the record contains ample evidence of appellant's other misrepresentations concerning his citizenship which is admissible to negate appellant's contention that the misrepresentation with which he is here charged resulted from mere carelessness and inadvertence.
The history of appellant's career in this country as it appears in the record reveals that appellant's false statement as to his citizenship in the application for the license was neither the first nor the last occasion on which appellant misrepresented not only his citizenship but his identity.
In 1929 appellant, born in China, was legally admitted to this country for permanent residence. Shortly after his arrival he met a Chinese United States citizen named Charlie Wah You. Appellant was understandably anxious to become a citizen and although it was explained to him that this was impossible, Charlie Wah You offered to consult an attorney to see what could be done. An attorney was retained, and on the basis of the perjured testimony of Charlie Wah You an order issued from the California Superior Court establishing appellant's birth in California as the son of Charlie Wah You. It appears that appellant subsequently consulted another attorney concerning the legality of this arrangement. Both the attorneys involved and Charlie Wah You have since died.
Thereafter appellant continued to identify himself under his "adopted" name as Donald or Sam Wah You or Wahyou. Under this name in 1947 he obtained, as a native citizen, a United States passport to visit Hong Kong. Both before and after the violation of Section 911 with which he is here charged, appellant in applications for life insurance represented himself as having been born in Sacramento, California.
Since the fact that appellant signed the license application is not disputed, and the only question here concerns his willfulness in so doing, it is clear that this evidence of the other transactions in which he made similar misrepresentations was properly admissible to negate his contention that he did so inadvertently. 2 Wigmore, Evidence § 302, (3rd ed. 1940); McCormick, Evidence § 164(1954).
Appellant contends that there is no finding as to his willfulness and that the court confined itself to a criticism of his veracity in the following language:
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