Robles v. United States

Decision Date26 July 1960
Docket NumberNo. 16716,16717.,16716
Citation279 F.2d 401
PartiesFrank G. ROBLES, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

COPYRIGHT MATERIAL OMITTED

Frank G. Robles, Tucson, Ariz., in pro. per.

Jack D. H. Hays, U. S. Atty., Michael A. Lacagnina, Mary Anne Reimann, Asst. U. S. Attys., Tucson, Ariz., for appellee.

Before HAMLIN, JERTBERG and KOELSCH, Circuit Judges.

KOELSCH, Circuit Judge.

Appellant was convicted on four of seven counts in an indictment charging him with knowingly and willfully falsifying certain documents within the jurisdiction of a department or agency of the United States (18 U.S.C.A. § 1001)1 and also of two criminal contempts committed in the presence of the court during the course of the trial. The appeals from both convictions are consolidated. Appellant assigns numerous errors, none of which have any merit either in fact or law, and this perhaps can be explained in part by the fact that the appellant, a layman, voluntarily acted as his own lawyer, at the trial and on these appeals.

The indictment generally charged appellant with knowingly and willfully falsifying "contracts of employment" and "affidavits of support" which were submitted to immigration officials of the State Department for the purpose of gaining permission for Mexican nationals to enter and reside in the United States. These documents were purportedly signed by citizens of the United States who certified they would provide employment or support for the aliens sufficient to prevent them from becoming public charges while in this country. Appellant's name appeared as a notary public on the documents in question; he was charged with falsifying those documents and notarizing the signatures of United States citizens appearing thereon with the knowledge that the signatures were false.

Appellant makes eleven specifications of error which for convenience will be treated under three general headings.

First. Appellant urges that it was error for the court not to read the entire indictment to the jury at the beginning of the trial, that there was a variance between the indictment and proof adduced at the trial, that there was no proof that the allegedly false documents were "material" as required by Title 18 U.S. C.A. § 1001, and that it was error to permit the government's handwriting expert to merely state his conclusions as to the genuineness of signatures appearing on the disputed documents before they were admitted in evidence.

Considering these points in the order stated, it is well settled that the jury must be fairly apprised of the nature of the charges against the defendant, but this does not necessarily require a reading of the indictment to the jury either in whole or in part. Gallot v. United States, 5 Cir., 1898, 87 F. 446; Norman v. United States, 6 Cir., 1939, 100 F.2d 905; Nick v. United States, 8 Cir. 1941, 122 F.2d 660, 138 A.L.R. 791. Here, after the jury had been impanelled and sworn, the district judge explained in detail the allegations appearing in two of the counts in the indictment and advised the jury that except for names and dates the substance of the remaining counts was identical; in addition, the parties themselves explained and commented on the allegations comprising each of the counts at length in the course of their opening statements to the jury.

The assertion that there is a variance between the indictment and the proof no doubt results from appellant's misunderstanding of the crime created by 18 U.S.C.A. § 1001 and of its essential elements. He argues that the documents in question were not proven to "meet the legal tests of contracts" and that as a result there was a "variance" between the indictment and proof. In order to constitute a commission of the crime created by the statute where it is charged that a written instrument was used, the proofs relating to the instrument need only establish beyond a reasonable doubt that the accused knowingly and willfully made or used "any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry." The fact that the indictment characterizes the writing as a "contract" or "affidavit" does not require proof that it is such. Weinstock v. United States, 1956, 97 U.S.App.D.C. 365, 231 F.2d 699; Ebeling v. United States, 8 Cir., 1957, 248 F.2d 429.

The same misconception is true of the "materiality" required, for appellant argues that the documents must be proven to have actually influenced the immigration officials in deciding whether to admit the aliens in question. Yet the test is not whether the instrument actually influenced or caused a department or agency of the United States to act, but rather "whether the false statement has a natural tendency to influence, or was capable of influencing the decision of the tribunal making the determination required to be made." Weinstock v. United States, supra, 231 F.2d at page 701. See also, United States v. Coastal Contracting & Engineering Co., D.C.Md.1959, 174 F. Supp. 474.

There was evidence which the jury must have believed that the documents described in the indictment were of the required sort. Mrs. Bullock, Vice-Consul of the State Department stationed at Nogales, Mexico, testified that before a visa permitting entry into the United States would be granted, some proof or showing was required to the effect that the applicant would not become a public charge, and as a result the Department oftentimes relied upon writings such as these in making its decision in connection with applications for visas.

Appellant similarly misunderstands the function of a handwriting expert and the purpose for which his testimony may be used. The disputed signatures here were those of appellant, appearing as a notary public on the documents, and those of the sponsors of the alien applicants. The record discloses that the witness, after his qualifications as an expert had been established to the satisfaction of the court, compared the signatures on the disputed documents with specimen signatures, previously admitted in evidence, of appellant and the purported sponsors; he was then allowed to state his opinion that the signatures of appellant on the disputed documents had been made by him and were genuine, but that the signatures of the sponsors likewise appearing on the documents were not those of the persons who had made the corresponding specimen signatures and were spurious.

It is well settled that "* * * an expert in handwriting may testify and state his opinion as to whether different documents or signatures were written by the same person or are similar or dissimilar in respect of handwriting * * * or whether a particular handwriting is genuine or disguised. * *" 23 C.J.S. Criminal Law § 863, p. 72; Neall v. United States, 9 Cir., 1902, 118 F. 699; Rinker v. United States, 8 Cir., 1907, 151 F. 775; Fuston v. United States, 9 Cir., 1927, 22 F.2d 66. The procedure followed by the court below being proper, there was no error in the admission of this evidence.

Appellant also argues that it was error for the lower court to allow any testimony in regard to the disputed documents, including that of the expert, before they were admitted in evidence. The plain answer to this is that the testimony was necessary as part of the foundation required to properly identify and finally admit the documents as the allegedly false "contracts" and "affidavits" described in the allegations of the indictment. Hartzell v. United States, 8 Cir., 1934, 72 F.2d 569; Hass v. United States, 8 Cir., 1937, 93 F.2d 427.

Second. Appellant urges that the court unduly restricted his cross-examination of the prosecution's witnesses, that it did not consider appellant's requested instructions to the jury or inform him of its own instructions in time to permit appropriate and adequate objection, and that the court committed prejudicial error by "holding defendant, acting as his own counsel, in criminal contempt * * * while in the presence of the jury * * *."

We have carefully read the record and to use the apt language of the Supreme Court in Glasser v. United States, 1941, 315 U.S. 60, 83, 62 S.Ct. 457, 470, 86 L.Ed. 680, are thoroughly convinced that:

"The alleged undue limitation of cross-examination merits scant attention. The extent of such examination rests in the sound discretion of the trial court. Alford v. United States, 282 U.S. 687 51 S.Ct. 218, 75 L.Ed. 624. We find no abuse of that discretion."

The record shows that appellant was allowed to offer his requested instructions, that the court considered them and informed appellant of the action taken on those instructions prior to his argument to the jury, and that appellant was given the opportunity to make objections before the jury retired, clearly following the procedure required by Rule 30, Federal Rules of Criminal Procedure, 18 U. S.C.A.2

The same lack of factual support is true of appellant's contention that he was prejudiced as a defendant because the court "held him in contempt" in the presence of the jury. After the incident occurred for which appellant was cited, the court simply made the following observation: "Mr. Robles, I have instructed you not to make another statement like that. I can deal with the statement you have made a little later on." The trial then continued without interruption or any particular emphasis being directed to the improper remarks of the defendant; it was not until the trial recessed for the day and the jury excused that the court informed appellant that he was found guilty of contempt, and it was not until after the trial was completed that appellant was formally adjudged in contempt. The above statment admonishing appellant...

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    ...v. Woykovsky, 297 F.2d 179, 181 (7th Cir. 1961), cert. denied, 369 U.S. 867, 82 S.Ct. 1034, 8 L.Ed.2d 86 (1962); Robles v. United States, 279 F.2d 401, 407 (9th Cir. 1960), cert. denied, 365 U.S. 836, 81 S.Ct. 750, 5 L.Ed.2d 745 (1961). In United States v. Rose, 215 F.2d 617, 630 (3d Cir. 1......
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