Duncan v. United States

• Decision Date: 13 December 1933
• Docket Number: No. 7162.,7162.
• Citation: 68 F.2d 136
• Parties: DUNCAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

68 F.2d 136 (1933)

DUNCAN v. UNITED STATES.^*

No. 7162.

Circuit Court of Appeals, Ninth Circuit.

December 13, 1933.

William T. Kendrick, Jr., and Russell Graham, both of Los Angeles, Cal., for appellant.

Peirson M. Hall, U. S. Atty., of Los Angeles, Cal., and Fred Horowitz, Sp. Asst. to Atty. Gen., for the United States.

Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.

WILBUR, Circuit Judge.

The appellant was convicted on each of three counts of an indictment, all based on representations by the appellant that he is a citizen of the United States, born in Camden, N. J.; whereas, it is alleged that he was born in the Kingdom of Rumania.

The first count charges that the defendant made false statements in an application for a passport, with the intent to secure the issuance of a passport for his use, contrary to the law regulating the issuance of passports (22 USCA § 220) and the regulations of the State Department in reference thereto, by falsely stating that he was a native citizen of the United States and that he was born in Camden, N. J., on April 23, 1904, when in truth and in fact he was not a citizen of the United States, but a subject of the Kingdom of Rumania, and was not born in Camden, N. J., but was born in Rumania on the 20th day of April, 1904.

The second count of the indictment charges a violation of 18 USCA § 141, in that the defendant unlawfully, willingly, and knowingly, for the fraudulent purpose of securing a passport of the United States, falsely represented himself to be a citizen of the United States without having been duly admitted to citizenship; that he represented himself to be a citizen of the United States born in Camden, N. J., when as a matter of fact he was not born in Camden, N. J., but was born in the Kingdom of Rumania and was never duly admitted to citizenship.

The third count of the indictment charges the defendant with perjury in violation of 18 USCA § 231 in connection with his application for a passport, in that he falsely swore that he was a citizen of the United States born in Camden, N. J., when as a matter of fact he was not a citizen of the United States and was not born in Camden, N. J., and was not born in the United States. In testifying before the immigration officers January 15, 1931, the appellant gave his name as Basil Duncan Couyanos Renaldo and stated he had used the names Renault Duncan, Basil Couyanos, and Duncan Renaldo (his stage name); that he was born on April 23, 1904, and would be twenty-seven years of age on April 23, 1931; that he entered the United States in September, 1921, on the ship Puget Sound; that he shipped as a seaman thereon out of Dunkerque, France, as a Greek citizen under the name of Basil D. Couyanos. He stated that he was admitted to the United States at that time as an alien seaman at Baltimore, Md.; that during the World War he had lived in Rumania, at Galatz, in the province of Covurlui; that he obtained a passport as a Rumanian citizen when he went from Rumania to France; that he was living in Rumania with some people by the name of Couyanos. He also testified before the Bureau of Investigation of the Department of Labor, as follows:

"Q. These people whom you say you were living with in Rumania, you say they were your father and mother? A. Yes.

"Q. What were their names? A. Father, Demetri Couyanos, and mother Tedora Couyanos, but sometimes instead of calling them mother and father I would call them by name. I have lived with them as far as I can recollect.

"Q. Do you recollect living with any others? A. I have a tremendous amount of relatives there but I have always lived with my father and mother in one place.

"Q. Who are your relatives there? A. I have no direct relatives there.

"Q. Do you have any brothers or sisters? A. No, I haven't any direct brothers or sisters. There were four or five in the Couyanos family and I used to call them brothers and sisters although I am not related to them. * * *

"Q. What are the names of some of the children of this Couyanos family in Rumania? A. One is Aggripina, another is Ionel and another is Efeochia; that is all. They have another girl named Sofia.

"Q. What is your mother's maiden name in Rumania? A. His wife is Teodora Couyanos. I do not know her maiden name. That is all I know.

"Q. * * * Have you ever lived in Camden, New Jersey? A. No, I have not."

It appears that as long as appellant remembered he had lived in Rumania in the home of Demetri and Teodora Couyanos, whom he had called father and mother. He had no recollection of any other father and mother, but states that his earliest recollection was crossing a large body of water and that the people he called father and mother with whom he lived had told him he was born in Camden, N. J.; that they stated to him the name of his parents but that he had never seen either of them. Appellant took the witness stand in his own behalf and repeated most of the statements he had made before the immigration authorities above stated.

The records of the ship Puget Sound on which he shipped as a coal passer in 1917 were introduced in evidence and showed that Basil Couyanos was a member of the crew and his signature to the records was introduced in evidence. When the Puget Sound arrived at Baltimore, Md., appellant first entered this country. He applied for admission to the United States as a citizen but withdrew his application and entered as an alien. He was allowed to enter to reship foreign, but he did not reship. He went to New York and remained there. On October 17, 1924, he applied for a marriage license, giving the name Renault Demetri Duncan; place of birth, Rumania; place of father's birth, Rumania; place of mother's birth, Rumania; father's name, Demetri J.; mother's name, Theodore Marienne. On March 29, 1926, he applied for life insurance giving his name as Renault Duncan Couyanos; date of birth, April 23, 1904; and place of birth, Rumania. On December 14, 1927, he wrote a letter to the Commissioner of Immigration stating that he desired to become naturalized and giving the name of Basil D. Couyanos. On January 14, 1929, just three months before he made his application for passport as an American citizen, he made a written application for life insurance giving his birth place as Rumania and the date of birth April 23, 1904. On December 18, 1930, appellant procured a false affidavit to be made for the purpose of effecting an entry in the record of vital statistics at Camden, N. J., purporting to show that he was born there on April 23, 1904. In that record thus obtained the father's place of birth was given as United States, the mother's as Rumania, name of father, Francis B. Duncan, and name of mother, Marie Mariensco. The witness who made the affidavit on which the registration of birth was entered in the records of Camden, N. J., as of April 23, 1904, testified that the affidavit was made by him without knowledge of the facts at the request of the appellant, who knew the statements in the affidavit as to affiant's acquaintance with appellant, and of affiant's knowledge of the facts sworn to, were untrue. In the register of births in the city of Camden, N. J., the entries were arranged alphabetically and not chronologically. Under the heading "DU" was the entry "Renault Duncan, April 23, 1904," giving place of birth as 217 Federal street, and showing entry by affidavit 12/18/30. There is no other record of birth of Renault Duncan. There was no entry of birth under the name of Couyanos in the Camden, N. J., records that could apply to the appellant.

The most serious question presented by the record is the question of the admissibility of a photographic copy of the records of births for the year 1904 in the custody of the mayor of Oancea, district of Covurlui, Kingdom of Rumania, purporting to show that appellant was born there April 20, 1904. This certificate is as follows:

"Mayor Com. Oancea District of Covurlui. Rumania.

"Extract from the register of Vital Statistics for births in the year 1904.

"No. 32 Vasile Dumitru V. Cugheanos.

"In the year one thousand nine hundred and four, month of April, the twentieth day at five o'clock in the afternoon. Certificate of birth of the child Vasile, male sex, of orthodox religion born today at about one o'clock in the afternoon, in the house of his parents of the Commune of Oancea, legitimate son of Mr. Dumitru V. Cugheanos twenty eight years of age, by profession proprietor of a steam mill and of Mrs. Teodora D. V. Cugheanos twenty years of age by profession housewife, both of orthodox religion and domiciled in the Commune of Oancea. In accordance with the declaration of the father who presented the child to me; the witnesses were; Mr. George Dimitriu thirty seven years of age and Constantin Dulgherescu thirty six years of age both of orthodox religion, clerks by profession domiciled in the Commune of Oancea, who have signed this document together with the declarant and with their own signatures after I have first read it to them. Verified according to law by us Iordache T. Onu Mayor of the Commune of Oancea and officer of vital statistics. —

"Declarant (ss) D. Cugheanos | (ss) Gh. Dimitriu "Witnesses (ss) C. Dulgherescu "Mayor (ss) I. T. Onu "Notary (ss) P. I. Tepelus."

Attached to this birth certificate is a certificate of the mayor of Oancea attested by his official seal and by the signature and seal of a notary. This certificate reads as follows:

"Rumania. Townhall of the Commune of Oancea, District of Covurlui. The present photograph is taken from the records of vital statistics for births in the year 1904 under Number 32, and is certified by us.

"Mayor: (ss) T. Ganea "(Seal) Notary: (ss) I. Vlase "No. 1463 "November 19, 1932."

The signatures of the mayor and notary are in turn authenticated by the certificate of the prefecture of the district of Covurlui, whose signature, seal, and official position, in turn, were attested by the signature and seal...