Rocha v. United States

• Decision Date: 02 March 1961
• Docket Number: No. 16839.,16839.
• Citation: 288 F.2d 545
• Parties: Jorge Gabriel ROCHA, Joao Da Paixao Andrade, Manuel Correia Da Luz, Jose Da Silva Da Luz, Francisco Da Silva Rodrigues, Manuel Das Neves Virrissimo, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

288 F.2d 545 (1961)

Jorge Gabriel ROCHA, Joao Da Paixao Andrade, Manuel Correia Da Luz, Jose Da Silva Da Luz, Francisco Da Silva Rodrigues, Manuel Das Neves Virrissimo, Appellants, v. UNITED STATES of America, Appellee.

No. 16839.

United States Court of Appeals Ninth Circuit.

March 2, 1961.

Verne O. Warner, and John S. Rhoades, San Diego, Cal., for appellants.

Laughlin E. Waters, U. S. Atty., Robert J. Jensen, George W. Kell, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before ORR, BARNES and HAMLIN, Circuit Judges.

BARNES, Circuit Judge.

The six appellants, herein known as "immigrant defendants," with eight indicted coconspirators (herein known as "coconspirators") and six unindicted coconspirators (herein known as "brides") were charged with conspiracy to defraud the United States. The object of the conspiracy was to permit the six immigrant defendants to make an unlawful entry into the United States, as immigrants in a claimed preferred status, viz. as husbands (through alleged sham marriages) to the United States citizen brides. 8 U.S.C.A. § 1325. Jurisdiction is claimed generally under 18 U.S.C. § 3231; and more specifically under 18 U.S.C. §§ 3237, 3238. We do not find 18 U.S.C. § 3237 applicable.

Additionally, each appellant was charged in three substantive counts of (a) knowingly making a false oath before a consular officer abroad (18 U.S.C. § 1546); (b) obtaining and accepting an immigrant visa by means of a false statement with respect to a material fact in a visa application; and (c) accepting and retaining an alien registration permit card so fraudulently obtained.

Each defendant was convicted on the conspiracy count (I), and one count charging the making of the false statement (the so-called Count II series). Each defendant was acquitted of the remaining two counts.

There are two principal questions raised on this appeal. The first relates to the conspiracy count, i. e., whether there were not six separate conspiracies, rather than a single conspiracy. Appellants admit arguendo that they and their "brides" and the eight indicted coconspirators entered into six different conspiracies, but all urge the conspirators did not enter into, nor was there any proof of, any one over-all conspiracy — merely "six separate, individual and unconnected conspiracies." Reliance is placed on Kotteakos v. United States, 1946, 328 U.S. 750, 66 S.Ct. 1239, 90 L. Ed. 1557; Cf.: United States v. Russano, 2 Cir., 1958, 257 F.2d 712; Poliafico v. United States, 6 Cir., 1956, 237 F.2d 97, certiorari denied 352 U.S. 1025, 77 S.Ct. 590, 1 L.Ed.2d 597.

The second question raised is that the Count II series of convictions were based on the trial of an alien for a crime committed abroad, and hence these so-called "Count II" charges should have been dismissed for lack of jurisdiction in our district courts over a crime committed beyond the territorial limits of the court. Cf.: United States v. Baker, D.C.S.D. N.Y.1955, 136 F.Supp. 546. We consider the jurisdictional question first.

The penal § 1546 under which the Count II series were prosecuted reads in material part as follows:

"Whoever * * * uses, attempts to use, possesses, obtains, accepts or receives any immigration visa or permit, or other document required for entry to the United States, knowing it to be * * * falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained * * or

"Whoever knowingly makes under oath any false statement in any * * document required by the immigration laws or regulations * * * Shall be fined * * * or imprisoned * * *."

We have eliminated all references to those portions of this section dealing with the forging, uttering counterfeiting or altering of the visa or permit, as none of such actions was proved against any defendant. Nor was the document falsely "made" by any direct act of any defendant.

The several appellants' responsibility, then, rests upon their use, possession, receipt or acceptance of an immigrant visa issued to them on the representation that they were married to various American citizens, and therefore were nonquota immigrants under § 101(a) (27) (A) of the Immigration and Naturalization Act, 8 U.S.C.A. § 1101(a) (27) (A), "whereas in truth and in fact, as each defendant well knew, his marriage to the said American citizen was a sham, false and fraudulent marriage."

This approaches a case of first impression. Cf.: United States v. Lutwak, 7 Cir., 1952, 195 F.2d 748, affirmed 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593; United States v. Rubenstein, 2 Cir., 1945, 151 F. 2d 915, certiorari denied 326 U.S. 766, 66 S.Ct. 168, 90 L.Ed. 462; United States v. Birnbaum, D.C.S.D.N.Y.1944, 55 F. Supp. 356. This circuit did not pass on the question of jurisdiction, nor was that question raised, in the only case that apparently has arisen in this circuit under § 1546. Chin Bick Wah v. United States, 9 Cir., 1957, 245 F.2d 274, certiorari denied 355 U.S. 870, 78 S.Ct. 120, 2 L.Ed. 2d 76.¹

In Lutwak v. United States, supra, the validity of the marriage was held immaterial, in view of the use to which the defendants intended to put it.² The conspiracy in Lutwak had the purpose of enabling defendants to make "illegal entries." That was the purpose of the conspiracy charged herein in Count I. Such entries were listed as overt acts. Other overt acts allegedly took place wholly or partially in the United States. Entries were accomplished in both cases; in both cases the appellants, upon unlawful entry, later were found within the jurisdiction of the federal courts. Thus, no jurisdictional problem arose in Lutwak, nor is there any jurisdictional problem with respect to Count I (conspiracy) in this case.

But the substantive counts (Count II series) of which appellants were convicted do not rest on the overt acts of Count I. The court below, in a careful and able analysis of what Congress intended (182 F.Supp. 479, at pages 484-486) comes to the conclusion that Congress intended to give to § 1546 extra territorial jurisdiction. We agree that such was the congressional intent.³ We are then faced with the question of whether such a purpose can be lawfully accomplished, i. e., is constitutional.

Before we reach that question, however, we believe it proper to consider certain allegations which the trial judge below inferred might have been an attempt by the government to allege an act in each of the "Count II series" which would enable it and us to avoid the constitutional question. We agree with Judge Carter that despite such allegations (as to acts done within the United States by the "brides" as their "husbands'" agents), the offense charged in Count II as to the various bridegrooms was alleged to have been committed in Mexico (or elsewhere) on the date the papers were signed at the respective American Consulates, and thus the constitutional issue as to the Count II series remains before us. See 182 F. Supp. 479, 486, note 5.

This brings us to the point — can United States law have extra territorial jurisdiction? Or, more specifically as put to us by the appellants — does the district court have jurisdiction to indict and try an alien found within the court's jurisdiction for a crime committed abroad?

Appellants properly cite United States v. Baker, supra 136 F.Supp. 548, as holding that the district court does not, and properly cite The Apollon, 1824, 9 Wheat. 361, 22 U.S. 361, 6 L.Ed. 111, for the general rule, under the theory that territorial jurisdiction is essential, that "the laws of no nation can justly extend beyond its own territories, except so far as regards its own citizens."

But, as appellants concede, Baker, supra, points out certain exceptions to the general rule.

"While crimes against private individuals must still take place within the territory of the sovereign before the latter can properly assume jurisdiction, certain crimes directed toward the sovereign itself may be tried within the jurisdiction even though committed without." Id., 136 F.Supp. at pages 547-548.

But this jurisdiction is usually "predicated upon the citizenship of the offender rather than the locus of the crime." United States v. Bowman, 1922, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149, and cases cited in Baker, supra, 136 F.Supp. at page 548.

The Baker opinion notes that "in only one instance has an alien been held accountable by the United States for a crime committed abroad." United States ex rel. Majka v. Palmer, 7 Cir., 1933, 67 F.2d 146. There the alien was ordered deported for having made false statements under oath to an American Consul abroad when applying for a passport. But, the Baker court stated, "deporting an alien for perjury is far different from indicting and trying him for a crime committed abroad." Baker, supra 136 F. Supp. at page 548.

We fail to see the purported distinction. Obviously the decision below herein rested not only on the act abroad, but also on the effect it produced within the boundaries of the United States, namely, the aliens' subsequent successful entrance at the border based on a document allegedly procured by fraud. This must have so occurred because the aliens were subsequently found and arrested within the United States, says the government. But suppose the act done abroad was the making of a false affidavit by "X" which enabled "Y" to enter the United States, and suppose further, "Y" never came into the United States, or entered on his own valid passport. Could "X" then be indicted? We see no reason why an alien coming within the territorial limits of a United States court should be placed in a more favorable position with respect to his actions taken against the sovereignty of the United States while he was abroad, than a United States citizen would be. We believe the principles enunciated by the Supreme Court in Strassheim v. Daily, 1911, 221 U.S. 280, 285, 31 S.Ct. 558, 55 L.Ed. 735, are here...