Lazarescu v. United States, 6463.

• Decision Date: 10 November 1952
• Docket Number: No. 6463.,6463.
• Citation: 199 F.2d 898
• Parties: LAZARESCU v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

199 F.2d 898 (1952)

LAZARESCU v. UNITED STATES.

No. 6463.

United States Court of Appeals Fourth Circuit.

Argued October 7, 1952.

Decided November 10, 1952.

Jack H. Hantman, New York City, (Major & Sintich, New York City, on brief), for appellant.

Thomas G. Gray, Asst. U. S. Atty., Baltimore, Md. (Bernard J. Flynn, U. S. Atty., Baltimore, Md. and Abraham Scharf, Naturalization Examiner, U. S. Immigration and Naturalization Service, New York City, on brief), for appellee.

Before PARKER, Chief Judge, DOBIE, Circuit Judge, and WILLIAMS, District Judge.

DOBIE, Circuit Judge.

This is an appeal by Nicolai Lazarescu (defendant-appellant) from a judgment of the United States District Court for the District of Maryland, entered upon a verdict of guilty by a jury, adjudging that the appellant pay a fine of $500 with costs and be committed to the custody of the Attorney General of the United States for imprisonment in such place of confinement as he may designate for the period of one year, with further commitment in default of payment of fine.

Appellant has been charged with the violation of Section 180, subparagraph (a) of Title 8 of the United States Code Annotated, in that, having been arrested and previously deported from the United States in pursuance of law, he did on or about the 22nd day of September, 1949, feloniously enter the United States, at Baltimore, Maryland, without lawful authorization to do so.

Appellant had been deported from the United States in September, 1940. He was a member of the crew of the S. S. Atlantic Air, which, on September 22, 1949, arrived at the Port of Baltimore. This same day, he was inspected by the Immigrant Inspector at the Port of Baltimore and his admission as a bona fide seaman under Section 3, subdivision 5 of the Act of 1924, 8 U.S.C.A. § 203(5), was entered on the crew manifest. During the six days that the S. S. Atlantic Air remained in Baltimore, the defendant was not discharged and he physically did not leave the ship. He was discharged and did physically leave the ship when the S. S. Atlantic Air, some days later, reached the Port of Norfolk, Virginia.

Two questions are presented by this appeal: (1) Was the District of Maryland the proper venue? and (2) Did the action of the Immigrant Inspector at Baltimore permitting appellant to land there, despite his prior deportation, constitute a lawful entry by appellant into the United States? Both these questions were resolved against appellant in the court below. In overruling appellant's motions in arrest of judgment, for a new trial and for acquittal notwithstanding the verdict, District Judge Chesnut wrote an elaborate opinion. This opinion is reported in 104 F.Supp. 771. We think he ruled correctly on both these questions and that it is not necessary to add materially to what was said in that opinion.

Venue here is controlled by 8 U.S.C.A. § 164, which (so far as is here material) provides:

"The district courts of the United States are invested with full jurisdiction of all causes, civil and criminal, arising under any of the provisions of this chapter. It shall be the duty of the United States district attorney of the proper district to prosecute every such suit when brought by the United States under this chapter. Such prosecutions or suits may be instituted at any place in the United States at which the violation may occur or at which the person charged with such violation may be found."

Section 164 thus prescribes the venue for the prosecution of violations of Chapter 6 of Title 8, 8 U.S.C.A. § 101 et seq. The District of Maryland, then, was the proper venue, under Section 164, if, but only if, the violation occurred at Baltimore. And this depends on whether appellant, in September, 1949, made an "entry," within the meaning of the statute, at Baltimore. Specifically, the question may be thus stated: Where a seaman who had previously been deported, arrives at a port in the United States from a foreign place, and after examination by the immigration authorities, is permitted to enter the United States, but chooses to remain on board the ship and not go ashore until it reaches the next port coastwise, at which port is he deemed to have made a statutory "entry" into the United States?

No case precisely in point has been found. As the District Judge pointed out, clearly inapplicable here are the cases of Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17; Carmichael v. Delaney, 9 Cir., 170 F.2d 239; Pasquale v. Di Karnuth, 2 Cir., 158 F.2d 878. This is likewise true as to United States ex rel. Stapf v. Corsi, 287 U.S. 129, 53 S.Ct. 40, 77 L.Ed. 215; Kaplan v. Tod, 267 U.S. 228, 45 S.Ct. 257, 69 L.Ed. 585; United States ex rel. Rubio v. Jordan, 7 Cir., 190 F.2d 573.

In United States ex rel. Patton v. Tod, 2 Cir., 297 F. 385, 396, Circuit Judge Mayer, considering the date of an entry under a different phase of the immigration laws, commented:

"* * * the word `entry\' is used, manifestly to distinguish situations where entry is something different from mere physical arrival at the port.

"* * * it is plain that the Congress had in view the entry after the alien was free from restraint, so that he could physically enter the country either openly or surreptitiously."

Not without significance here is the fact that, at a hearing by the Immigration Department, appellant, in answer to a question, testified that he had last entered the United States about September 22, 1949, at Baltimore. Important, too, is the administrative custom and practice under which Baltimore is clearly regarded as the port of entry. That view also finds support in the history of the federal immigration statutes.

As was said by District Judge Chesnut in his opinion below, 104 F.Supp. at page 777:

"But when the passenger or seaman is admitted by the Inspector he is then entirely free to go on shore at his pleasure, and his admission by the Inspector constitutes an entry within the meaning of the immigration statutes. In addition, it may be said that there are reasons of practical importance for this view in the administration of the immigration laws. The official records as to passenger and crew are apparently kept at the first port of arrival where the passengers and crew are inspected. As the passenger or seaman is free to land when admitted it is naturally assumed by the Immigration Department that he has so landed and ordinarily there would be no record of the time of his actual

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