Worthy v. United States, 20062.

• Decision Date: 20 February 1964
• Docket Number: No. 20062.,20062.
• Citation: 328 F.2d 386
• Parties: William WORTHY, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

328 F.2d 386 (1964)

William WORTHY, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 20062.

United States Court of Appeals Fifth Circuit.

February 20, 1964.

COPYRIGHT MATERIAL OMITTED

William M. Kunstler, New York City, Howard W. Dixon, Miami, Fla., for appellant.

Robert L. Keuch, J. Walter Yeagley, Kevin T. Maroney, Attys., Dept. of Justice, Washington, D. C., Alfred E. Sapp, Asst. U. S. Atty., Miami, Fla., William A. Meadows, Jr., U. S. Atty. Southern District of Florida, Carol Mary Brennan, Attorney, United States Department of Justice, Washington, D. C., for appellee.

Michael B. Standard, David N. Ellenhorn and Melvin L. Wulf, New York City, Benjamin E. Smith, New Orleans, La., for American Civil Liberties Union, amicus curiae.

Before TUTTLE, Chief Judge, and JONES and BELL, Circuit Judges.

JONES, Circuit Judge.

William Worthy, Jr., the appellant, is a newspaperman and lecturer. He was issued a passport in 1955. It provided that it was not valid for travel in the countries therein designated, including Communist China and Hungary. Notwithstanding the restrictions in his passport, Worthy traveled extensively in Communist China and Hungary. In 1957 he applied for a renewal of his passport. He was asked for a commitment, which he declined to give, that he would abide the restrictions. The renewal of his passport was refused by the State Department. Its action was upheld. Worthy v. Herter, D.C.Cir.1959, 106 App.D.C. 153, 270 F.2d 905, cert. den. 361 U.S. 918, 80 S.Ct. 255, 4 L. Ed.2d 186. The decision has attracted the interest of the reviewers. See 28 Fordham L.Rev. 816; 28 Geo.Wash.L. Rev. 782; 73 Harv.L.Rev. 1610; 5 N.Y.L. Forum 402; 38 N.C.L.Rev. 260; 34 St. Johns L.Rev. 315; 62 W.Va.L.Rev. 422. In the early summer of 1961 Worthy advised his booking agent of his plan to visit Cuba, expressing the hope he could again visit China, saying he had competent legal advice and knew what he was doing, and requesting that his destination be kept confidential.

On July 24, 1961, Worthy sailed on the S. S. Guadaloupe of the Spanish Line and left the vessel at Havana, Cuba. On October 10, 1961, he arrived from Havana on a commercial air line flight at the International Airport at Miami, Florida. He was charged by indictment in the Southern District of Florida with unlawfully entering the United States without a valid passport in violation of 8 U.S.C.A. § 1185(b).¹ The statute, in so far as is here pertinent, provides as follows:

"(a) When the United States is at war or during the existence of any national emergency proclaimed by the President, or, as to aliens, whenever there exists a state of war between or among two or more states, and the President shall find that the interests of the United States require that restrictions and prohibitions in addition to those provided otherwise than by this section be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall, until otherwise ordered by the President or the Congress, be unlawful * * *

"(b) After such proclamation as is provided for in subsection (a) of this section has been made and published and while such proclamation is in force, it shall, except as otherwise provided by the President, and subject to such limitations, and exceptions as the President may authorize and prescribe, be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid passport. * * *

"(c) Any person who shall willfully violate any of the provisions of this section, or of any order or proclamation of the President promulgated, or of any permit, rule, or regulation issued thereunder, shall, upon conviction, be fined not more than $5,000, or, if a natural person, imprisoned for not more than five years, or both; and the officer, director, or agent of any corporation who knowingly participates in such violation shall be punished by like fine or imprisonment, or both; and any vehicle, vessel, or aircraft together with its appurtenances, equipment, tackle, apparel, and furniture, concerned in any such violation, shall be forfeited to the United States. * * *

"(d) The term `United States\' as used in this section includes the Canal Zone, and all territory and waters, continental or insular, subject to the jurisdiction of the United States. The term `person\' as used in this section shall be deemed to mean any individual, partnership, association, company, or other incorporated body of individuals, or corporation, or body politic." 8 U.S.C.A. § 1185.

An unrevoked Presidential Proclamation of January 17, 1953, provides in part, as follows:

"* * * I, HARRY S. TRUMAN, President of the United States of America, acting under and by virtue of the authority vested in me by section 215 of the Immigration and Nationality Act and by section 301 of title 3 of the United States Code, do hereby find and publicly proclaim that the interests of the United States require that restrictions and prohibitions, in addition to those otherwise provided by law, be imposed upon the departure of persons from, and their entry into, the United States; and I hereby prescribe and make the following rules, regulations, and orders with respect thereto:

"1. The departure and entry of citizens and nationals of the United States from and into the United States, including the Canal Zone, and all territory and waters, continental or insular, subject to the jurisdiction of the United States, shall be subject to the regulations prescribed by the Secretary of State and published as sections 53.1 to 53.9, inclusive, of title 22 of the Code of Federal Regulations. Such regulations are hereby incorporated into and made a part of this proclamation; and the Secretary of State is hereby authorized to revoke, modify, or amend such regulations as he may find the interest of the United States to require. * * *" 18 Fed.Reg. 489, 67 Stat. p. c. 32.

Worthy filed a motion for a change of venue, a motion to inspect the grand jury minutes, and a motion to dismiss the indictment. The motions were denied. Trial was had before the court without a jury and the appellant was found guilty as charged. He was sentenced to three months imprisonment and nine months probation. On this appeal from the judgment of the district court, the principal contentions of the appellant, and those which we will here notice, are that the statute, 8 U.S.C.A. § 1185(b) is too uncertain, indefinite and vague to define a criminal offense, that the Government was guilty of entrapment in permitting the appellant to enter the United States, that the indictment is defective in failing to set forth the essential facts constituting the offense charged, that the statute is not applicable to United States citizens in times of peace, and that, as applied to the appellant under the facts shown, the statute is unconstitutional. Subsequent to argument the Court has been advised that the appellant waives "all objections except constitutional ones in so far as his appeal * * * is concerned." Such waiver cannot, we think, relieve us of the duty to decide the appeal without deciding constitutional issues if it can be done. Therefore we consider the other questions.

It is urged by the appellant that there are several fatal ambiguities in the statute. The phrase, "bears a valid passport," is said to be vague and ambiguous. It is contended that the word "bear" should be given the meaning of "carry," or "have in possession." The appellant takes the position that a person of ordinary intelligence would be confused by this phrase and would be unable to ascertain whether a citizen would incur the criminal sanction upon returning to and entering the United States after an absence abroad if his passport had been lost or misplaced, or if the passport requirement as to the foreign country visited did not exist at the time of his departure but became effective before his return. The Government would have us hold that "bear," as used in the Act, has a broader meaning than that ascribed to it by the appellant. It is not necessary that we do so. It is enough to point out that the criminal provisions of the portions of the statute requiring citizens to have passports for departing from or entering the United States require that the violations be willful if criminal penalties are to be incurred. There is no ambiguity in the phrase "bears a valid passport."

The appellant puts forward the proposition that the intent and purpose of the Congress was to make criminal clandestine departures from or entries to the United States, and because there was no attempt to conceal his entry, the act did not apply to him. The statute was enacted, beyond doubt, for the purpose stated by the appellant, but it reached much further. It was the clear intent of the statute to require passports for foreign travel, with some exceptions, to permit reasonable restrictions to be placed upon foreign travel, and to impose criminal penalties for willful violations. At this point consideration is being given only to the question of ambiguity. The question of validity will be hereafter discussed.

We are reminded by the appellant that the indictment refers only to Section 1185(b), which defines the prohibited acts, and omits any reference to Section 1185(c) which prescribes the penalty for violation. If the citation of the statute is incomplete or otherwise erroneous, it will be no ground for dismissal unless the error or omission has misled the appellant to his prejudice. Rule 7, Fed.Rules Crim.Proc. 18 U.S. C.A. No prejudice is here shown.

The appellant indicates that it may not be clear whether the language, "willfully violate any of the provisions of this section," refers to entering the United States, or to entering the United States without bearing a valid passport. There is no ambiguity here. The statutory provision is that it shall be unlawful...