Kaphan v. United States

• Decision Date: 05 April 1920
• Docket Number: 3418.
• Citation: 264 F. 323
• Parties: KAPHAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

264 F. 323

KAPHAN v. UNITED STATES.

No. 3418.

United States Court of Appeals, Ninth Circuit.

April 5, 1920

Henry M. Owens and Harry K. Wolff, both of San Francisco, Cal., for plaintiff in error.

Annette Abbott Adams, U.S. Atty., of San Francisco, Cal.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

HUNT Circuit Judge.

Kaphan was convicted under two indictments. In one (6272) it was charged that Kaphan and others conspired to bring into the United States, and to cause to be brought into and to aid and abet the bringing into and landing in the United States through the port of San Francisco, Chinese persons who were not lawfully entitled to enter or remain in the United States; in the other (6273) he, with others, was charged with having conspired to willfully and unlawfully conceal, remove mutilate, obliterate, and destroy records, papers, and other documents filed and deposited in a public office, to wit, the immigration office at Angel Island, Cal. The cases were consolidated for trial. Certain of the defendants changed their pleas of not guilty, but Kaphan was tried and found guilty. Motion in arrest of judgment was overruled, and Kaphan was sentenced to imprisonment.

Reversal is urged upon the following grounds: That the court erred in overruling the demurrer, in denying motion for a new trial and in overruling motion in arrest of judgment.

It is said that the indictment (6272) is defective, in that there is no allegation as to what Kaphan did with the records which he would use in bringing and causing to be brought into the United States Chinese persons not entitled to enter or remain in the United States. The point is not well taken. The indictment, after alleging that Kaphan with others conspired to do the things charged as heretofore stated, averred that in furtherance of the conspiracy and to effect the object thereof one of the defendants, Yow, delivered to another defendant, Akers, certain letters addressed to Chinese applicants for admission to the United States awaiting examination to enter the United States at the immigration station at Angel Island, Cal., and that the letters contained questions and answers to be used by the applicants as a means of gaining admission to the United States. The indictment was drawn under section 37 of the Penal Code (Comp. St. Sec 10201), and section 11 of the Chinese Immigration Act (section 11, Act May 6, 1882, as amended by Act July 5, 1884 (Comp. St. Sec. 4298)). Section 11 provides that any person who shall knowingly bring into or cause to be brought into the United States, or aid or abet the landing in the United States, from any vessel, of any Chinese person not lawfully entitled to enter the United States, shall be deemed guilty of a misdemeanor. Inasmuch as the charge was for conspiring to...