Smiley v. United States

• Decision Date: 11 May 1950
• Docket Number: No. 12375.,12375.
• Citation: 181 F.2d 505
• Parties: SMILEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

181 F.2d 505 (1950)

SMILEY v. UNITED STATES.

No. 12375.

United States Court of Appeals Ninth Circuit.

April 13, 1950.

Rehearings Denied May 11, 1950, and May 22, 1950.

Otto Christensen and Robert Neeb, Jr., Los Angeles, Cal., for appellant.

Ernest A. Tolin, U.S. Attorney, Los Angeles, Cal., for appellee.

Before DENMAN, Chief Judge, and STEPHENS and ORR, Circuit Judges.

ORR, Circuit Judge.

Appellant was convicted on Counts One and Three of an indictment numbered 20,069, and on Count One of an indictment numbered 20,604, charging him with knowingly, wilfully and fraudulently representing to persons having good reason to inquire into the nationality status of appellant, that he, appellant, was a citizen of the United States, whereas in truth and in fact appellant well knew that he was not. 8 U.S.C.A. § 746 (a) (18).¹

Under the first count of indictment 20,069 the misrepresentation was alleged to have been made to one Thomas A. Cox, an employee of the Police Department of the City of Beverly Hills, California.

Under Count Three of indictment No. 20,069 the misrepresentation was alleged to have been made to one J. E. Siu, a Deputy Sheriff of the County of Los Angeles.

Indictment No. 20,604 charged the misrepresentation to have been made to Deputy Sheriff J. E. Siu on a different date than that charged in Count Three of No. 20,069.

As to Count One of indictment No. 20,069 the evidence discloses that appellant was held as a material witness for interrogation by the Beverly Hills Police Department. At the time of detention a Police Officer made out a booking slip recording the answers made by appellant to questions asked by a Police Officer.

The recorded answers included appellant's address, phone number, color of hair and eyes, height, weight, age, complexion, build, descent, nationality, that he was born in New York and that he had lived in the United States for life. The above is the substance of all the evidence which is relied on to support Count One. We think it fails to measure up to the requirements necessary to sustain the conviction for the criminal offense charged. The evidence fails to establish beyond a reasonable doubt that appellant falsely represented himself to be a citizen of the United States. A person may be born in the United States and remain therein for life and yet not be a citizen and while it may be that an officer, upon being informed by one whom he has under arrest that he, the party in custody, was born in the United States and had lived therein all his life, would conclude that the person whom he was interrogating was a citizen of the United States, it would be no more than a conclusion reached without the necessary supporting facts.

As to the charge contained in indictment No. 20,604, the evidence establishes that appellant was booked at the Lincoln Heights jail in Los Angeles; that pursuant to custom certain information was obtained from appellant; that answers to questions asked appellant were recorded and that he answered "yes" to the word "citizen", as it appears on the identification report. Again, we think the evidence insufficient to sustain a conviction under this indictment. His answer that he was a "citizen" does not establish that he falsely represented himself to be a citizen of the United States.

The Government argues that appellant's answer that he was a citizen taken together with a further answer to the word "nativity" appearing on the registration cards as "N.Y." is sufficient. We do not agree. This last above mentioned statement does not sufficiently supply the requirement that in order to sustain the conviction appellant must have falsely represented himself to be a citizen of the United States.

As to Count Three contained in indictment No. 20,069 the evidence is substantially to the effect that appellant was arrested by a deputy sheriff at Los Angeles and booked during the process of which certain information was elicited from him. To one of the questions, "United States Citizen," appellant answered "Yes". This answer is conceded to be false. The problem thus posed is: Does this answer constitute a representation falsely and fraudulently made to a person having good reason to inquire into the nationality status of appellant? The allegations of the indictment and the provisions of sub. par. (18) of § 746 (a) require such a degree of proof to sustain the conviction.

The answer was made to a deputy sheriff acting in his official capacity. The information was sought from appellant under a system and custom in force in the sheriff's office of Los Angeles County which applied to all persons arrested and booked by the sheriff's office. This system was obviously installed under the belief that it would aid in the administration of justice and in obtaining a knowledge of the background of law violators. When the deputy sheriff asked the question he was no "prying busybody" but an official seriously performing a duty imposed upon him by the custom and practice of the sheriff's office. It was in furtherance of his official authority as a deputy sheriff and a duty imposed upon him by his superior. Appellant argues that his citizenship status was immaterial to the gambling charges upon which he was being held as a material witness. Be that as it may, the questions asked, including citizenship status, were material in an overall system for the proper functioning of such an important office as that of sheriff of Los Angeles County and it seems that said office deems it necessary in the administration of their official duties to get the history of...