Yenkichi Ito v. United States, 7000.

• Decision Date: 27 March 1933
• Docket Number: No. 7000.,7000.
• Citation: 64 F.2d 73
• Parties: YENKICHI ITO v. UNITED STATES. SAME v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Ninth Circuit

64 F.2d 73 (1933)

YENKICHI ITO v. UNITED STATES.

SAME v. UNITED STATES et al.

No. 7000.

Circuit Court of Appeals, Ninth Circuit.

March 27, 1933.

William H. Wylie and H. P. L. Beck, both of San Diego, Cal., for appellant.

Samuel W. McNabb, U. S. Atty., and Harry Graham Balter, Asst. U. S. Atty., both of Los Angeles, Cal., for the United States.

Before WILBUR, SAWTELLE, and MACK, Circuit Judges.

WILBUR, Circuit Judge.

Two indictments were returned against appellant. The indictment in case No. 2054-H charged appellant with the substantive offense of bringing into and attempting to bring into the United States and aiding, assisting, and abetting in bringing and attempting to bring into the United States six certain Japanese persons, naming them, which said Japanese persons were aliens not duly admitted to the United States by an Immigration Inspector and not lawfully entitled to enter and reside within the United States in violation of section 8 of the Immigration Act of 1917 (8 USCA § 144). The indictment in case No. 2061-C charged appellant and others in the first count thereof with conspiracy to unlawfully bring into or attempt to bring into the United States the same six Japanese aliens mentioned in the indictment in case No. 2054-H, and many other Japanese aliens whose names were unknown to the grand jury; and in the second count with conspiracy to unlawfully conceal and harbor these same six Japanese aliens, and many other Japanese aliens whose names were unknown to the grand jury.

Appellant plead "not guilty" to both indictments and the two were consolidated in the court below for trial pursuant to stipulation of counsel. The jury returned a verdict of guilty against appellant on both indictments and in case No. 2054-H, appellant was sentenced to imprisonment for six years and on each count in the conspiracy indictment in case No. 2061-C appellant was sentenced to imprisonment for two years, these two sentences to run concurrently with each other and with the one imposed in case No. 2054-H, and to pay a fine of $250. From these convictions and sentences, appellant brings this appeal.

At the time the vessel Angelus was seized with the six Japanese aliens named in the indictments on board, it was on the high seas some forty miles off the coast of Southern California. Nohr and Humphrey, who were indicted along with appellant in the conspiracy indictment, were in charge of the Angelus at the time of the seizure and they, together with all other persons on board, were arrested and brought into San Diego. Appellant was not on board the Angelus and took no active part in the actual transportation of the said Japanese aliens. The theory on which he is charged in the indictment in case No. 2054-H is that he attempted, not by himself but through another, to bring these aliens, or that he aided, assisted, and abetted another in attempting to bring them in.

Appellant contends that transporting aliens on the high seas is not a crime against the United States and that Nohr and Humphrey, being some forty miles from the mainland at the time they were arrested and the vessel seized, committed no crime within the territorial limits of the United States so as to give its courts jurisdiction and, therefore, appellant cannot be convicted of an attempt, within the jurisdiction of the court, on the basis of their acts.

Section 8 of the Immigration Act of 1917 (8 USCA § 144) makes it a crime to attempt to bring into the United States aliens who are not lawfully entitled to enter. One question for determination in this connection is whether the attempt must be made within the territorial limits of the United States or whether section 8 is effective beyond those territorial limits. It is a general rule of criminal law that the crime must be committed within the territorial jurisdiction of the sovereignty seeking to try the offense in order to give that sovereign jurisdiction. For this purpose the territorial domain of the United States extends into the ocean a marine league, or three geographic miles, from its shores. Cunard S. S. Co. v. Mellon, 262 U. S. 100, 122, 43 S. Ct. 504, 67 L. Ed. 894, 27 A. L. R. 1306; Ford v. United States, 273 U. S. 593, 618, 47 S. Ct. 531, 71 L. Ed. 793. In United States v. Smiley et al., 27 Fed. Cas. page 1132, No. 16,317, Justice Field stated the rule as follows: "The criminal jurisdiction of the government of the United States — that is, its jurisdiction to try parties for offenses committed against its laws — may in some instances extend to its citizens everywhere. Thus, it may punish for violation of treaty stipulations by its citizens abroad, for offenses committed in foreign countries where, by treaty, jurisdiction is conceded for that purpose, as in some cases in China and in the Barbary States; it may provide for offences committed on deserted islands, and on an uninhabited coast, by the officers and seamen of vessels sailing under its flag. It may also punish derelictions of duty by its ministers or consuls, and other representatives abroad. But in all such cases it will be found that the law of congress indicates clearly the extraterritorial character of the act at which punishment is aimed. Except in cases like these, the criminal jurisdiction of the United States is necessarily limited to their own territory, actual or constructive. Their actual territory is co-extensive with their possessions, including a marine league from their shores into the sea."

There is no question but that Congress may, if it wishes, extend the federal criminal jurisdiction to offenses committed on the high seas, and it has done so in a number of instances. Chapters 11 and 12 of the United States Criminal Code, section 272 et seq. (18 USCA § 451 et seq.). However, as stated by Justice Field in U. S. v. Smiley, supra, the intent of Congress to extend the federal criminal jurisdiction to offenses committed on the high seas must clearly appear from the language of the statute. There is nothing in section 8 of the Immigration Act of 1917, supra, to indicate that Congress intended it to be effective outside of the recognized territorial limits of the United States. Therefore, section 8 must be construed to have no effect on the high seas outside the three-mile limit.

As the acts of Nohr and Humphrey, which constituted the basis for the substantive charge against the appellant in case No. 2054-H were committed in transporting the aliens from Punta Banda, Mexico, to a point some forty miles off the mainland, where they were intercepted by the United States Coast Guard, they did not make an attempt to bring in or land aliens not lawfully entitled to enter the United States within the jurisdiction of the United States or of the District Court thereof for the Southern District of California. The question is whether the appellant may nevertheless be guilty of an attempt through them, or as an abettor in the attempt and, if not, whether appellant committed any act within the jurisdiction of the United States sufficient to constitute an attempt within that jurisdiction. In order for one person to be held criminally responsible as an aider and abettor in the commission of an act by another, as is sought to be done here, the act committed by this other person must constitute a crime against the Government which prosecutes the charge. Manning v. Biddle (C. C. A. 8) 14 F.(2d) 518. Here no illegal act was committed by Nohr and Humphrey within the jurisdiction of the United States. The act committed was legal where committed and was potentially wrong only because coupled with an intent to consummate the act of landing the aliens within the United States. Hence, no substantive offense was committed by Nohr and Humphrey and app...