Dear Wing Jung v. United States

• Decision Date: 13 February 1963
• Docket Number: No. 17785.,17785.
• Citation: 312 F.2d 73
• Parties: DEAR WING JUNG, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

312 F.2d 73 (1963)

DEAR WING JUNG, Appellant, v. UNITED STATES of America, Appellee.

No. 17785.

United States Court of Appeals Ninth Circuit.

December 27, 1962.

Rehearing Denied February 13, 1963.

McMurray, Walker & Tepper, and Lloyd E. McMurray, San Francisco, Cal., for appellant.

Cecil F. Poole, U. S. Atty., and James F. Hewitt, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before CHAMBERS, MAGRUDER and HAMLEY, Circuit Judges.

MAGRUDER, Circuit Judge.

This criminal case was tried by the district court without a jury.

The trial was on an indictment containing three counts. The first count charged a violation of § 1001 of Title 18 United States Code, in that the defendant did, "in a matter within the jurisdiction of the Immigration and Naturalization Service, United States Department of Justice, an agency of the United States, wilfully and knowingly falsify and conceal material facts regarding his identity, parentage, nationality and right to enter and remain in the United States, by the trick, scheme and device of posing as Dear Kai Gay, a citizen of the United States through acquisition at birth abroad to Dear Bing Quong, also known as Dear Nay Lim, an alleged native born United States citizen, whereas, in truth and in fact, as the defendant then and there well knew, his true name was Dear Wing Jung and his true father's name was Dear Nay Ting".

The second count alleged a violation of the conspiracy section, 18 U.S.C. § 371.

The third count charged a violation of 18 U.S.C. § 1001 in that the defendant did, in a matter within the jurisdiction of the Immigration and Naturalization Service, United States Department of Justice, an agency of the United States, wilfully and knowingly make false and fraudulent representations in the naturalization proceedings of his wife Emmy Dear, also known as Chow Shoy Mun, that his true name was Dear Kai Gay, and that he was a citizen of the United States, whereas, in truth and in fact, as the defendant then and there well knew, his true name was not Dear Kai Gay, but was Dear Wing Jung, and he was not a citizen of the United States.

The district court granted a motion of the defendant to dismiss the first two counts of the indictment because of the running of the statute of limitations — a dismissal on the merits, we agree. When it came to count 3, the defendant was tried thereon. The district court found him guilty of the offense charged in that count and sentenced him to the penitentiary.

But we do not agree with appellant that this dismissal of counts 1 and 2 amounted to subjecting the defendant to a double jeopardy in the constitutional sense. The doctrine of double jeopardy has no application to a defendant who was tried but once on an indictment charging criminal violations. See Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); People v. Chessman, 38 Cal.2d 166, 238 P.2d 1001 (1952).

It is manifest that the offenses in the first and third counts of the indictment are not identical. Count 1 charged the concealment of a material fact by trick, scheme and device. Count 3 simply alleged the making of a knowingly false representation. It is settled that the same act or transaction may constitute two distinct federal offenses, and, in construing the intention of the Congress, may justify findings of guilty on the two counts and resulting separate sentences, to run consecutively. Burton v. United States, 202 U.S. 344, 377, 26 S.Ct. 688, 50 L.Ed. 1057 (1906). On the other hand, where a greater offense includes a lesser, if the accused is convicted on both counts, it is clearly not the intention of Congress to permit the imposition consecutively of the maximum penalty possible upon each count. See Costner v. United States, 139 F.2d 429, 432 (C.A. 4th, 1943); Wilson v. United States, 145 F.2d 734 (C.A. 9th, 1944); Miller v. United States, 147 F.2d 372 (C.A.2d, 1945); Rutkowski v. United States, 149 F.2d 481 (C.A. 6th, 1945).

We reject therefore the res judicata or collateral estoppel argument.

Nor do we believe that we could rightly hold the indictment on count 3 to be fatally defective because it fails to...