Tzantarmas v. United States, No. 22798.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: MADDEN, of the United States Court of Claims, HAMLEY and MERRILL, Circuit
• Citation: 402 F.2d 163
• Parties: Theodosios Theodores TZANTARMAS, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 22798.
• Decision Date: 17 October 1968

402 F.2d 163 (1968)

Theodosios Theodores TZANTARMAS, Appellant,
v.
UNITED STATES of America, Appellee.

No. 22798.

United States Court of Appeals Ninth Circuit.

October 17, 1968.

402 F.2d 164

James P. Leahy (argued) Astoria, Or., for appellant.

Mallory C. Walker (argued) Asst. U. S. Atty., Sidney I. Lezak, U. S. Atty., Portland, Or., for appellee.

Before MADDEN, Judge of the United States Court of Claims, HAMLEY and MERRILL, Circuit Judges.

HAMLEY, Circuit Judge:

This appeal is taken from a conviction on a charge of knowingly and wilfully making false statements and representations

402 F.2d 165

in a matter within the jurisdiction of the United States Immigration and Naturalization Service (Service), in violation of 18 U.S.C. § 1001 (1964)

Arguing for reversal, defendant contends: (1) the court failed to rule on whether, under the circumstances of this case, defendant's "exculpatory no" answer to a question asked by an officer of the Service is a "statement" within the meaning of section 1001; (2) defendant's "exculpatory no" was not a "statement" within the meaning of that section; (3) defendant's negative answer was not material; and (4) certain exhibits were improperly admitted into evidence.

Defendant, a native born citizen of Greece, was a seaman aboard a Greek vessel which docked at Philadelphia, Pennsylvania, on January 30, 1964. According to defendant's testimony, his ship left port while he was on shore seeing a doctor. Stranded in Philadelphia, defendant took the bus to Portland, Oregon where, by prearrangement, he met Alice Paulson, a girl he had become friendly with on a previous visit. Defendant and Miss Paulson were married on February 7, 1964 in Vancouver, Washington.

On February 25, 1964, defendant voluntarily, and without appointment, appeared at the Portland office of the Service to inquire how he might legalize his status in this country. During the lengthy interview that followed, an investigator for the Service asked defendant, "Have you ever been married at any time previously?" Defendant replied, under oath, "No." The Government contends that this reply is a false statement and representation of the kind proscribed by section 1001.

After the interview, the Government instituted deportation proceedings against defendant. The show cause order charged that defendant was deportable under section 241(a) (2) of the Immigration and Nationality Act (Act), 66 Stat. 204, 8 U.S.C. § 1251(a) (2) (1964), because he had remained in the United States beyond the time permitted for an alien crewman. At the deportation hearing, held on February 27 before a Special Inquiry Officer, defendant admitted that he was deportable.

The Special Inquiry Officer then advised defendant that, although he was deportable, he could apply for the privilege of voluntary departure pursuant to section 244(e) of the Act, 66 Stat. 214 (1952), 8 U.S.C. § 1254(e) (1964). The officer explained to defendant that voluntary departure is a form of relief from deportation available to persons who have been of good moral character during the past five years and who are able to depart promptly and pay their own way.¹

Defendant requested voluntary departure. In order to determine defendant's eligibility for this privilege, the officer conducted an inquiry into the relevant facts. One of the questions asked was, "Now, how many times have you been married?" Defendant answered, under oath, "Once, just now." He was then asked, "And your testimony is that you were not married in Greece?" Defendant replied, under oath, "Yes." The Government contends that the quoted answers are false statements and representations within the meaning of section 1001.

The day following the deportation hearing, defendant's wife of three weeks filed a petition in the Portland office of the Service, requesting modification of

402 F.2d 166

defendant's status so that he could receive a non-quota immigrant's visa. This petition was approved on April 13, 1964. In the meantime, defendant, having been granted the privilege of voluntary departure, had returned to Greece

On June 8, 1964, defendant filed an application with the American Embassy in Athens, Greece, for an immigrant visa and alien registration. Solely because of his claimed marriage to Alice Paulson on February 7, 1964, defendant was granted a visa to return to the United States permanently as a non-quota alien. He was admitted in New York on June 22, 1964 and up to the time of the trial herein lived in Portland, Oregon.

It later came to the attention of the Service that at Thessalonika, Greece, on July 10, 1955, when defendant was nineteen years old, a marriage ceremony was performed between him and Theodora Mytelenois. Greek religious custom requires that a marriage between Greek citizens, in order to be valid in the eyes of the church and of the parties, be certified by the "Metropolitan" (bishop). This was not done with respect to defendant's 1955 marriage.

A daughter was born of this marriage in 1956, but in June, 1960, Theodora took the child and left defendant permanently. When the daughter entered school in Greece in 1962, the existence of the marriage was apparently questioned. For the sole purpose of permitting the daughter's enrollment, Theodora had the marriage "determined" (recognized).

Defendant initiated divorce proceedings against Theodora on September 24, 1962. The decree of divorce, however, was not entered at Thessalonika until June 1, 1964, which was nearly four months...