United States v. Diogo

• Decision Date: 28 June 1963
• Docket Number: Docket 27853.,No. 282,282
• Citation: 320 F.2d 898
• Parties: The UNITED STATES of America, Appellee, v. Jose DIOGO, Domingo Das Canas Costa and Manuel Vilanova Gonzalez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

320 F.2d 898 (1963)

The UNITED STATES of America, Appellee, v. Jose DIOGO, Domingo Das Canas Costa and Manuel Vilanova Gonzalez, Defendants-Appellants.

No. 282, Docket 27853.

United States Court of Appeals Second Circuit.

Argued March 8, 1963.

Decided June 28, 1963.

COPYRIGHT MATERIAL OMITTED

Robert M. Morgenthau, U. S. Atty., Southern Dist. of New York (John W. Mills, Andrew T. McEvoy, Jr., Asst. U. S. Attys., of counsel), for appellee.

Bertrand D. Gerber, New York City (Murray A. Gordon, New York City, of counsel), for appellants Diogo and Costa.

Harry Wallach, New York City (Lee C. Swartz, Harrisburg, Pa., of counsel), for appellant Gonzalez.

Before CLARK, WATERMAN and FRIENDLY, Circuit Judges.

WATERMAN, Circuit Judge.

Appellants Jose Diogo, Manuel Gonzalez and Domingo Costa, are alleged to have entered into sham marriages with American citizens in order to obtain nonquota immigrant status under 8 U.S.C. § 1101(a) (27) (A). After a trial upon a twelve count indictment in the district court below, each of the aliens was convicted of (1) falsely representing to the Immigration authorities, in violation of 18 U.S.C. §§ 1001 and 1546, that he was actually married, and (2) entering into a conspiracy with the alleged instigator of the scheme, Adria Gonzalez,¹ and others, to commit the substantive offenses charged. 18 U.S.C. § 371.

Appellants attack the convictions on the grounds, inter alia, that the evidence failed, as a matter of law, to prove the offenses charged, and that the trial judge erred in his instructions to the jury. We hold that the convictions must be reversed and the indictment dismissed as to each appellant.

Considering only the evidence most favorable to the Government's contentions, a jury might have found the following facts: In 1951, Jose Diogo, a Portuguese citizen, entered the United States as a business visitor under a temporary permit. In March 1957, he was introduced by Adria Gonzalez, an American of Puerto Rican descent, to Clara Heredia, also an American citizen. At that time Diogo, inasmuch as he had exceeded the time allotted for his stay in this country, was about to be deported. Adria asked Clara Heredia if she would be willing to marry Diogo so that he could remain in the United States. Clara agreed, upon the assurance that she would receive a sum of money and that no sexual relations would be involved.

Pursuant to this understanding, Diogo and Clara were "married" at Newark, New Jersey, on April 6, 1957. Shortly after the ceremony Diogo gave Adria $500 which she shared with Clara. Thereafter, Diogo did not live with Clara and they did not consummate the marriage. On the basis of his representations regarding his change in marital status, the deportation proceedings against Diogo were reopened and he was ultimately found to qualify for nonquota status as the spouse of an American citizen. On January 4, 1958, Clara obtained a Mexican divorce from Diogo.

On February 9, 1960, Manuel Gonzalez, a Spanish citizen, entered the United States under a temporary permit. Shortly thereafter, Adria Gonzalez (who was not related to Manuel) again arranged for a "marriage" to permit the alien to remain in the United States. Yvette Garces, the daughter of Clara Heredia, agreed to marry Manuel for this purpose, upon the understanding that she would be paid for her cooperation and that she and Manuel would not live together as man and wife. Their marriage ceremony took place in Queens, New York, on February 24, 1960. Thereafter, Yvette received $500 from Manuel, but the couple neither lived together nor consummated their marriage. On April 28, 1960, Gonzalez applied to become a permanent resident by virtue of his marriage to an American citizen and his application was granted. Yvette obtained an Alabama divorce in August of 1961.

Appellant Domingo Costa is a Portuguese citizen and the brother of Jose Diogo. On November 9, 1956, Costa was deported from the United States for having overstayed a limited permit to enter this country while he was purportedly in transit to Venezuela. In the summer of 1957, Adria Gonzalez contacted Emma Mercado, an American citizen, and, according to Emma, "asked me if I would like to take a trip to Europe (where) I will meet some young man and that we may get married and that the future will be more rosy for me, that I wouldn't have to work any more." It is conceded by the Government that Emma subsequently agreed in all good faith to marry Costa. No money was mentioned or paid in consideration for the marriage and there never was any suggestion that the marriage would not be consummated or that it would be entered into in contemplation of a divorce. In the latter part of 1957 Emma went to Lisbon, Portugal, where she met Costa and where she remained for some two months while her visa and passport documents were being processed. The couple were married in Lisbon on January 21, 1958, and the marriage was consummated by sexual intercourse. Shortly thereafter Emma returned to the United States; Costa, having received a non-quota immigrant visa as Emma's spouse, entered this country on August 15, 1958. On May 10, 1960, Costa was granted a divorce from Emma in the New York courts.

Upon these facts we have no doubt that appellants may be deportable from the United States under 8 U.S.C. §§ 1251(a) (1) or 1251(c).² This, however, was a criminal prosecution, not a deportation proceeding.

We turn, therefore, to the question whether the Government has failed, as a matter of law, to prove violations of the criminal provisions under which appellants stand convicted: 18 U.S.C. § 1001 (false statements generally), 18 U. S.C. § 1546 (false statement in application for visa, etc.), and 18 U.S.C. § 371 (conspiracy to commit offense or to defraud United States). The statutory pattern reveals that acts sufficient to constitute violation of the relevant clause of 18 U.S.C. § 1546³ will also constitute a violation of 18 U.S.C. § 1001. Moreover, there is no suggestion in the indictment that the alleged conspiracies failed to achieve their supposed objective, the commission of the substantive offenses charged. It is clear, therefore, that the counts in the indictment charging violations of 18 U.S.C. § 1001 constitute the cornerstone of these prosecutions. If, as appellants contend, the Government has failed to prove violations of this provision, their convictions on all counts of the indictment must fall.

Section 1001 of Title 18 U.S.C., provides:

"§ 1001. Statements or entries generally

"Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both."

It is well established that this section encompasses within its proscription two distinct offenses, concealment of a material fact and false representations. United States v. Uram, 148 F.2d 187, 190 (2 Cir.1945); United States v. Kenny, 236 F.2d 128 (3 Cir.1956), cert. denied, 352 U.S. 894, 77 S.Ct. 133, 1 L.Ed.2d 87; United States v. Lange, 128 F.Supp. 797 (S.D.N.Y.1955). The objective of both offenses may be the same, to create or foster on the part of a Government agency a misapprehension of the true state of affairs. Cf. Lutwak v. United States, 344 U.S. 604, 611-612, 73 S.Ct. 481, 97 L.Ed. 593 (1953). What must be proved to establish each offense, however, differs significantly. False representations, like common law perjury, require proof of actual falsity; concealment requires proof of wilful nondisclosure by means of a "trick, scheme or device."

It is conceded by the Government that the basic substantive offense with which the present indictment charges each of the appellants is that of making false representations with respect to his marital status.⁴ The jury was so instructed below. We are brought, thus, to the question whether the Government has established that the statements of each appellant regarding his marital status were false, and that these statements were known by the appellants to be false at the time they were made.

Appellants maintain that neither the secret reservations of Costa, nor the limited purpose for which Diogo and Gonzalez married their respective spouses, renders these marriages invalid under the domestic relations law of New York or of most other American jurisdictions. See N.Y. Domestic Relations Law, §§ 6, 7; Barker v. Barker, 88 Misc. 300, 151 N.Y.S. 811 (Sup.Ct.1914); Gregg v. Gregg, 133 Misc. 109, 231 N.Y.S. 221 (Sup.Ct.1928); Delfino v. Delfino, 35 N. Y.S.2d 693 (Sup.Ct.1942); Erickson v. Erickson, 48 N.Y.S.2d 588 (Sup.Ct. 1944); Schibi v. Schibi, 136 Conn. 196, 69 A.2d 831, 14 A.L.R.2d 620 (1949); Hanson v. Hanson, 287 Mass. 154, 191 N. E. 673, 93 A.L.R. 701 (1934); Campbell v. Moore, 189 S.C. 497, 1 S.E.2d 784 (1939); DeVries v. DeVries, 195 Ill.App. 4 (1915); 14 A.L.R.2d 624; Note 20 U. Chi.L.Rev. 710 (1953).

The Government does not deny the "formal" validity of appellants' marriages. Relying upon Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L. Ed. 593 (1953) and United States v. Rubenstein, 151 F.2d 915 (2 Cir.1945), cert. denied, 326 U.S. 766, 66 S.Ct. 168, 90 L. Ed. 462, however, the Government contends that the validity of the marriages under state law is immaterial to these prosecutions. The Government argues that, for the purposes of a criminal prosecution such as this one, if two persons, as part of an effort to circumvent the immigration laws, agree to a marriage "only for the sake of representing it as such to the outside world and with the understanding that they will put an end to it as soon as it has served its purpose to deceive," th...