Fotie v. United States

• Decision Date: 23 August 1943
• Docket Number: No. 12294.,12294.
• Citation: 137 F.2d 831
• Parties: FOTIE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

137 F.2d 831 (1943)

FOTIE v. UNITED STATES.

No. 12294.

Circuit Court of Appeals, Eighth Circuit.

August 23, 1943.

COPYRIGHT MATERIAL OMITTED

Forest W. Hanna and Bernard T. Hurwitz, both of Kansas City, Mo., for appellant.

Richard K. Phelps, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., on the brief), for appellee.

Before GARDNER, RIDDICK, and VAN VALKENBURGH, Circuit Judges.

RIDDICK, Circuit Judge.

On consideration of the petition for rehearing in this case, the opinion of the court filed May 1, 1943, is withdrawn for the reasons hereinafter appearing.

Two indictments were returned against the appellant in the district court, the first, No. 15,228, charging him with violation of § 79 of the Criminal Code, 18 U.S.C.A. § 141, and the second, No. 15,239, in three counts, charging him with the crime of perjury under § 125 of the Criminal Code, 18 U.S.C.A. § 231. In the first indictment, the charge was that the appellant "on or about the 8th day of November, 1938, wilfully, knowingly, unlawfully, falsely, fraudulently and feloniously did represent himself to be a citizen of the United States, for the fraudulent purpose then and there to vote in the General Election being held on said 11th day of November, 1938, for candidates for various offices, the County of Jackson, the State of Missouri, and of the United States, by stating that he was born in the state of West Virginia, in the United States of America, when he, the said Joseph A. Foti then and there well knew that he was born in Gioiosa Province of Reggio de Calabria, Italy." The second indictment charged appellant in three counts with the crime of perjury in giving certain testimony under oath at a hearing being conducted by a district director of immigration and naturalization in Kansas City.

By stipulation the cases were consolidated for trial before the court without a jury. Appellant was adjudged guilty as charged in each indictment, and his appeals from the judgments of conviction have been consolidated for hearing in this court. The result of this procedure is a record containing much evidence that pertains to both indictments and some which relates only to the first indictment and to the separate counts contained in the second indictment. The evidence pertaining to both indictments is summarized here, and that which pertains only to a particular indictment or one of its counts is stated in the separate discussions of them which follow.

At intervals over a period of approximately 25 years, beginning in 1917, the Government has prosecuted deportation proceedings against the appellant. In each proceeding appellant was sworn and subjected to a searching cross-examination concerning his origin and his life in this country and abroad. In these examinations appellant made conflicting statements concerning the time and place of his birth and as to the basis of his claim that he was a citizen of the United States. He stoutly maintained that he was a citizen of this country, but on all occasions the sum of his testimony was that he did not know where or when he was born. He based his testimony concerning the place and time of his birth upon information obtained by him from inquiries among the members of his family in Italy. If appellant's testimony is believed, he does not know where he was born nor whether he was born in January 1887 or January 1889. He explains his conflicting statements concerning the place of his birth in this country by the claim that, as he pursued his investigations in the matter during the deportation proceedings, he obtained information from time to time which caused him to change his original belief.

It is established by the evidence that appellant was in this country as early as 1900 when he was either 11 or 13 years of age. Appellant claims that following his birth in this country he was taken to Italy as an infant by his father and mother. He thinks that his birth may have been registered there under the requirements of Italian law, but he remembers that he returned to this country at an early age with an uncle. He testified that he lived for a time with his uncle in Brooklyn, and later went with him to West Virginia where he remained until he was sent to Philadelphia to school. In 1907 he went on a visit to his parents in Italy, returning to this country in December of that year, again going to West Virginia. He was then either 18 or 20 years of age. His entry into the United States on this occasion was admitted by the Government. A witness for the prosecution introduced in evidence a volume kept in the immigration office at the port of New York which contained records pertaining to immigrants and passengers entering the United States at that port. The entries were taken from the manifests of ships arriving at the port of New York, certified to the immigration office by ship officers. The record showed that appellant was among the passengers arriving at the port of New York on December 21, 1907, on the steamship Konigin Luise, that his age was 20 years, occupation workman, destination New York, place of birth, Italy, that he had been in this country from 1900 to 1907. The Government witness who introduced this record testified that the original ship's manifest was made up by some officer of the vessel from information presumably obtained from the passengers at the port of embarkation, and that the inspection made at the port of debarkation was a cursory one as the passengers passed by the immigration inspector on leaving the vessel. The witness had no personal knowledge concerning the matters shown by the record nor concerning its preparation, but based his testimony upon his understanding of the methods followed by ship officers in making up a manifest and of the manner in which the record in his possession was compiled. The Government also introduced a certified copy of the certificate of admission issued to the appellant at the time of his arrival on the steamship Konigin Luise. Its recitals likewise were taken from the manifest of that steamship. They were the same as those contained in the records of the immigration office at the port of New York.

In 1914 the appellant made a second trip to Italy, arriving there about the time the first World War began. He was threatened with induction into the Italian Army, but, through the aid of an American consul in Italy, he was able to return to this country shortly after his arrival. He testified that he went to and returned from Italy on this occasion as an American citizen. The Government offered no evidence to the contrary. In 1917, while living in St. Louis, he registered for the draft as an American citizen. In 1920 appellant made a third trip to Italy, and on this occasion he remained there about nine years, taking with him his American wife and family, but he denied any intention of remaining in Italy permanently or of abandoning his claim to American citizenship.

While appellant was abroad on the trip last mentioned, he was employed first by an Italian firm, and later by a firm in Paris, France. He returned to this country in 1929 in company with a number of employees of the Paris firm, entering the United States at Laredo, Texas, in transit to Winnipeg, Canada. Appellant testified that on the occasion of his trip to Italy in 1920 he traveled as an American citizen. On his return in 1929 his testimony was that the arrangements for his entry into this country were made by his employers, who had construction work at Winnipeg, Canada, to which point they were transporting a number of their employees. For this reason appellant says he does not know whether he entered the United States as a citizen of the United States or of some other country, but he admits that, instead of going to Winnipeg, Canada, as his employers intended, he went to Missouri where his wife and children were living, they having returned to this country at an earlier date, and moved them to Kansas City, Missouri, where he has since resided. The Government conceded that appellant did enter this country at Laredo, Texas, in 1929, but it was unable to produce any records of his entry in evidence. It was permitted to introduce over objection of the appellant a copy of the record of the entry of a person by the name of Correale, an Italian, who entered the United States at Laredo, Texas, in 1929 in transit to Winnipeg, Canada. There was no evidence to show that Correale and appellant were one and the same person.

The first of the deportation proceedings against appellant began in St. Louis in January 1917. Appellant then testified that the basis of his belief that he was a citizen of the United States was his understanding that his father and mother were residents of this country at the time of appellant's birth and that his father had been naturalized. These proceedings were terminated by the Government late in 1918 on a finding that the proof was not sufficient to sustain the charge against appellant. While they were in progress, appellant filed in the District Court at St. Louis, Missouri, his declaration of intention to become a citizen of the United States. In that declaration he swore that he was born in Italy and was a subject of the Italian king. No further steps were taken in this proceeding.

Deportation proceedings, which began against appellant in 1933, were renewed in 1936, and continued at intervals through 1939, and produced little or no new information. The efforts of the Government to obtain proof in Italy of appellant's birth there were fruitless. Appellant could produce none to establish definitely his birth in this country. Representatives of the Government in charge of the investigation of appellant reached the conclusion that the weight of the evidence pointed to his birth in Italy and to his Italian citizenship, but they also reached the conclusion that appellant had acted in good faith with the Government.

In the meantime app...