Petite v. United States

• Decision Date: 05 January 1959
• Docket Number: No. 7694.,7694.
• Citation: 262 F.2d 788
• Parties: George B. PETITE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

262 F.2d 788 (1959)

George B. PETITE, Appellant, v. UNITED STATES of America, Appellee.

No. 7694.

United States Court of Appeals Fourth Circuit.

Argued November 5, 1958.

Decided January 5, 1959.

Bernard J. Flynn and Louis R. Milio, Baltimore, Md. (B. Sydney Becker, Ginsberg & Ginsberg, and Hyman Ginsberg, Baltimore, Md. on the brief) for appellant.

Leon H. A. Pierson, U. S. Atty., Baltimore, Md., and Arnold M. Weiner, Asst. U. S. Atty., Baltimore, Md., for appellee.

Before SOPER and HAYNSWORTH, Circuit Judges, and BOREMAN, District Judge.

BOREMAN, District Judge.

This is an appeal by George B. Petite, a member of the Bar of Baltimore City, from a sentence of imprisonment imposed by the United States District Court for the District of Maryland, the appellant having been convicted by a jury of the crime of subornation of perjury on two separate counts of an indictment.

The first count of the indictment charged that the appellant, hereinafter referred to as the defendant, procured Georgios Modestou Kostatos to commit perjury in a hearing conducted by the Immigration and Naturalization Service on February 14, 1952. The second count charges that the defendant procured Eleftherios Sitaras, of Baltimore, Maryland, to commit perjury in a hearing conducted by the Immigration and Naturalization Service on June 16, 1952. Both hearings were in Baltimore, Maryland, and were held in connection with a deportation proceeding against Kostatos, the perjurer named in the first count.

On October 12, 1951, Georgios Modestou Kostatos, a native of Greece and a Greek citizen, arrived at the Port of Baltimore as a crewman on the S. S. Santa Irene. When the ship left Baltimore the next day, Kostatos was not aboard and, ten days later, on October 23, 1951, he was arrested on a warrant charging that "at the time of entry, he was an immigrant not in possession of a valid immigration visa". Kostatos appeared at a deportation hearing on February 14, 1952, to show cause why he should not be deported. The defendant entered a formal appearance in the case as counsel for Kostatos, and the defense against deportation was that Kostatos was an American citizen and not an immigrant. John V. Carney, a Deportation Examiner, was the presiding officer and administered the oath to the witness Kostatos.

When questioned by the defendant, as his counsel, Kostatos claimed that his real name was John George Sitaras and that he was the son of Georgios and Maria Spanos Sitaras; that he was born in Chester, Pennsylvania, in 1919; that he was baptized in Philadelphia in 1920; that when he was four or five years old, his parents sent him to Greece because he was sick, and that he grew up in Greece, reared by his grandfather there. In explaining his reason for using the name "Kostatos" as a crewman, he stated that he had to show a military discharge to get employment on the ship. He asserted that he had had no military service and that he used the papers of a friend named Kostatos. Following his testimony, the hearing was adjourned.

The hearings were resumed in Philadelphia on April 24, 1952, before a different Deportation Examiner, the purpose of that hearing being the taking of depositions of certain people who resided in Pennsylvania and who appeared in Philadelphia as witnesses for Kostatos.

On June 16, 1952, a third hearing was held in Baltimore, at which the same John V. Carney presided and administered the oaths, his formal title this time being that of "Hearing Officer". The defendant called as a witness Eleftherios Sitaras, also known as Louis Sitaras.¹ This witness testified that he was an American citizen but that he was born in Greece, where he lived until he was eleven years old. He said that, while in Greece, he attended school with Kostatos and he gave testimony to bolster his identification of Kostatos as John Sitaras.

The indictment here was returned on August 21, 1956. Previously, the defendant and five others, including Kostatos and Sitaras (of Pennslyvania), were indicted in the Eastern District of Pennsylvania and charged in two counts with conspiring to make false, fictitious and fraudulent statements to officers of the INS, and with conspiring to defraud the United States and the INS for the purpose of preventing the deportation of Georgios Kostatos.

Another indictment against the defendant in the Eastern District of Pennsylvania, charged him with subornation of perjury in connection with testimony of witnesses, including Louis Sitaras (of Pennsylvania), at the Philadelphia hearing. The defendant, after the trial in the United States District Court for the Eastern District of Pennsylvania, was convicted upon his plea of nolo contendere on the first count of the conspiracy indictment, sentenced to pay a fine and to imprisonment for two months. On motion of the United States Attorney, the second count of the conspiracy indictment and the indictment charging subornation of perjury were dismissed.

At the trial of the defendant in the Maryland District Court, Kostatos repudiated his former statements and admitted his identity, testifying that he was born in Greece and that the defendant had told him to claim to be John George Sitaras. The evidence disclosed that John George Sitaras, an American citizen, had been dead for several years, a fact known to the defendant.

One of the questions for determination here arises because of the lower court's refusal to dismiss the Maryland indictment, the defendant urging that a trial on the Maryland indictment would place defendant Petite in double jeopardy because of the prior proceedings in the Eastern District of Pennsylvania in violation of the Fifth Amendment to the Constitution of the United States. Chief Judge Thomsen, of the District Court of Maryland, rendered his well-considered and able decision, United States v. Petite, 147 F.Supp. 791, 794, holding that "No double jeopardy has been shown". We approve the decision as reported.

In asserting that the District Court erred in denying the claim of double jeopardy, counsel for the defendant point to several decisions of the Supreme Court of the United States involving double jeopardy, including Pereira v. United States, 1954, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435; United States v. Bayer, 1947, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654; Gore v. United States, 1958, 357 U.S. 386, 78 S. Ct. 1280, 2 L.Ed.2d 1405; Hoag v. State of New Jersey, 1958, 356 U.S. 464, 78 S. Ct. 829, 2 L.Ed.2d 913; and Ciucci v. State of Illinois, 1958, 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed.2d 983. These cited decisions were by a divided court, and counsel for the defendant persistently urged this court to disregard the majority opinions in these cases and to follow the dissenters. This court is bound by the decisions of the Supreme Court whether rendered by the full court or a divided court.

The defendant next points to the statutes defining perjury and subornation of perjury.² He contends that the Immigration Act of 1917, Sec. 16, 39 Stat. 874, 885, 8 U.S.C. Sec. 152^*, provided for physical and mental examination of aliens coming into the United States, and although Immigrant Inspectors were authorized to make the examination and to administer an oath in so doing, that section was limited in its effect to persons just entering the country. He argues: That Section 17 of the same Act, 39 Stat. 874, 887, 8 U.S.C. § 153,^** provided for boards of special inquiry as to immigrants who had just come into the country and were detained at the port, such boards "appointed by the commissioner of immigration or inspector in charge at the various ports of arrival as may be necessary for the prompt determination of all cases of immigrants detained at such ports under the provisions of the law"; that Section 17 has no application here where the immigrant Kostatos had already entered the country, was employed herein and was claiming a right to remain here as a citizen by birth; that nowhere in that section was there a provision for the administration of an oath; that this is not a case "in which a law of the United States authorizes an oath to be administered" as contemplated by the perjury statute; that, consequently, neither Kostatos nor Eleftherios Sitaras committed the crime of perjury and, absent perjury, the conviction of the offense of subornation of perjury can not be sustained.

Since a decision on this question would be of no small import, it is deemed necessary to set forth the pertinent legislative history of the immigration laws at some length. The Immigration Act of 1917 was a comprehensive statute which revised and codified all previous laws respecting the immigration, exclusion and deportation of aliens. The Secretary of Labor, aided by the Commissioner General of Immigration,³ administered the Act, and the latter, under the direction of the former, was vested with broad powers in the formulation of rules and regulations. Section 23^† declared "That the Commissioner General of Immigration shall perform all his duties under the direction of the Secretary of Labor. Under such direction he shall have charge of the administration of all laws relating to the immigration of aliens into the United States, and shall have the control, direction, and supervision of all officers, clerks, and employees appointed thereunder; he shall establish such rules and regulations, prescribe such forms of bonds, reports, entries, and other papers, and shall issue from time to time such instructions not inconsistent with law, as he shall deem best calculated for carrying out the provisions of this Act * *". 39 Stat. 874, 892.

Pursuant to the rule-making authority granted by Section 23 of the 1917 Act, a system of regulations for the conduct of deportation hearings was promulgated. A brief summary of these regulations and the practice followed under them may be found in the opinion of the Court in Wong Yang Sung v. McGrath, 1950, 339 U.S. 33, 45, 70 S.Ct. 445, 94 L.Ed. 616.

In an...