U.S. v. Garcia-Geronimo

• Decision Date: 02 November 1981
• Docket Number: GARCIA-GERONIM,No. 81-1296,D,81-1296
• Citation: 663 F.2d 738
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Epigmenioefendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 738

663 F.2d 738

UNITED STATES of America, Plaintiff-Appellee, v. Epigmenio GARCIA-GERONIMO, Defendant-Appellant.

No. 81-1296.

United States Court of Appeals,

Seventh Circuit.

Argued Oct. 6, 1981.

Decided Nov. 2, 1981.

Patrick A. Tuite, Chicago, Ill., for defendant-appellant.

Corella E. Henrichs, U. S. Atty., Chicago, Ill., for the U. S.

Before PELL, SPRECHER and BAUER, Circuit Judges.

PER CURIAM.

Defendant was convicted in the United States District Court for the Northern District of Illinois, Eastern Division, on two counts of an indictment ¹ charging defendant with the uttering, selling and disposing of false, forged and counterfeited alien registration cards in violation of 18 U.S.C. § 1426(b), 2.

Prior to trial defendant moved for dismissal of the indictment claiming that the indictment failed to allege an essential element of 18 U.S.C. § 1426(b). Defendant's motion was denied. Defendant waived his right to a jury trial. At the close of the government's case the defendant moved for a judgment of acquittal. The defendant's motion was denied. At the close of all the evidence, the court found defendant guilty on counts one and three of the indictment. The defendant filed a motion in arrest of judgment, a motion for a new trial, and a motion for judgment of acquittal. These motions were denied. The defendant was sentenced on count one to six months work release, and on count three imposition of sentence was suspended and the defendant was placed on probation for two years. The defendant appeals his conviction alleging that the indictment is defective, as it fails to allege an essential element, and that the evidence was insufficient to support a conviction on count three.

I

Construction of 18 U.S.C. § 1426(b)

Defendant's first argument on appeal is that 18 U.S.C. § 1426(b), by its plain wording, makes unlawful "the uttering, selling or disposing of certain immigration documents, as true and genuine " (Defendant-Appellant Brief at 8) (emphasis in the original), that the true and genuine language must be read to modify each of the conjunctive acts. (Defendant-Appellant Reply Brief at 5), and that the doing of any of the acts specified in the statute is not a crime unless the acts were done as if the documents were true and genuine. "That is what the statute required. This indictment does not charge that. So this indictment does not charge a crime ... This statute is geared for people who are in the business of passing off or selling green cards as if they are real and they are true and genuine ..." ² (Record at 8).

18 U.S.C. § 1426(b) provides in toto:

"(b) whoever utters, sells, disposes of or uses as true or genuine, any false, forged, altered, antedated or counterfeited oath, notice, affidavit, certificate of arrival, declaration of intention to become a citizen, certificate or documentary evidence of naturalization or citizenship, or any order, record signature or other instrument paper or proceeding required or authorized by any law relating to naturalization or citizenship or registry of aliens, or any copy thereof, knowing the same to be false, forged, altered, antedated or counterfeited; ..."

The reading of a statute must foremost be guided by the legislative purpose in enacting the statute. As the Supreme Court has stated "(i)f an absolutely literal reading of a statutory provision is irreconcilably at war with the clear congressional purpose, a less literal construction must be considered." United States v. Campos-Serrano, 404 U.S. 293, 298, 92 S.Ct. 471, 474, 30 L.Ed.2d 457 (1971). Defendant's suggested construction of the statute does not withstand close scrutiny.

By far most transactions involving the sale of forged and counterfeited alien registration cards (including the one involved in this case) occur where the seller and buyer know the card is forged and counterfeited.

In United States v. Sandoval-Vazquez, 620 F.2d 1200 (7th Cir. 1980), we held that defendant could be convicted under 18 U.S.C. § 1426(b) for the selling of counterfeit alien registration receipt cards. If "as true or genuine" modified each of the proscribed acts as defendant suggests, then a person could only be convicted for selling forged and counterfeited alien registration cards if he asserted that they were "true or genuine" when he sold them. We cannot imagine but the most absurd of transactions where a person sells a counterfeit alien registration card "as true or genuine." It would be nonsensical to interpret the statute as to construe the intent of Congress under 18 U.S.C. § 1426(b) to be that of convicting sellers of known forged and counterfeited alien registration cards who sold the cards "as true or genuine" but not to convict persons who blatantly sold the known forged and counterfeited alien registration cards as forged and counterfeited without asserting they were true or genuine.

It is the intention of Congress under 18 U.S.C. § 1426(b) to prohibit all selling of false, forged, altered, antedated, or counterfeited alien registration cards whether sold as true or genuine or not. Our reading of 18 U.S.C. § 1426(b) that the words "as true or genuine" do not explicitly modify the acts of uttering, selling, or disposing of paper relating to citizenship or registry of aliens, finds support in the wording of 18 U.S.C. § 1546, ³ an analogous statute proscribing many of the same acts as under § 1426(b), without using the words "as true or genuine." ⁴

We construe the "as true or genuine" language in 18 U.S.C. § 1426(b) as explicitly modifying only the proscribed use and not the uttering, sale and disposition of any false, forged, altered, antedated, or counterfeited paper relating to citizenship or registry of aliens. Thus the indictment followed the language of the statute.

II Validity of the Indictment

Determining that the indictment followed the language of the statute is the beginning and not the end of our analysis since "(a)n indictment not framed to apprise the defendant 'with reasonable certainty, of the nature of the accusation against him ... is defective although it may follow the language of the statute.' United States v. Simmons, 96 U.S. 360, 362, 24 L.Ed. 819. In an indictment upon a statute, it is not sufficient to set forth the offense in the words of the statute, unless those words of themselves fully, directly and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished ... United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135." Russell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962).

Defendant argues that "this indictment, without the essential element that what the defendant did involved the uttering, selling or disposing of these documents as 'true and genuine' is legally deficient ..." Defendant reasons that "it is not a crime if you just give away or dispose of (the known false forged and counterfeited alien registration cards). It is (only) a crime if you do it as if it were true and genuine ..." Defendant does not contend that he was misled or otherwise prejudiced by the lack of allegation in the indictment that he did the proscribed acts involving the forged alien registration cards "as true or genuine." Defendant rather asserts that the indictment without the "essential element" of as true or genuine "does not charge a crime." ⁵

The Fifth Amendment's guarantee of the right to indictment by a grand jury and its bar to double jeopardy, and the Sixth Amendment's guarantee that the defendant be informed of the charge against him require that for an indictment to be valid it must contain the elements of the offense intended to be charged and it must sufficiently apprise the defendant of what he must be prepared to meet, and in case any other proceedings are taken against him for a similar offense, the record must show with accuracy to what extent he may plead a former acquittal or conviction. The indictment must also inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. Russell, 369 U.S. at 763, 764, 768, 82 S.Ct. at 1046, 1047, 1049 (1962); Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861 (1932); United States v. Dixon, 596 F.2d 178, 180 (7th Cir. 1979); United States v. Ray, 514 F.2d 418, 421-22 (7th Cir. 1975).

In determining whether an essential element of the crime has been omitted from the indictment, courts will not insist that any particular word or phrase be used. United States v. Weatherspoon, 581 F.2d 595, 600 (7th Cir. 1978).

Of course it is conceivable as defendant argues that an individual may "dispose" of a counterfeit alien registration card by turning it in to the Department of Immigration. But the defendant is mistaken in his view that the statute must be construed to contain an express allegation that it is the disposing of the card as "true or genuine" that is proscribed otherwise an individual would be held criminally liable under the statute for disposing of the card at the Department of Immigration. It is obvious that Congress did not intend to constitute such actions a felony. Dixon, 596 F.2d at 181. Defendant takes the words "dispose of" in the indictment as meaning to get rid of. However, that is but one meaning of "dispose of" and we do not believe Congress intended these words to have that meaning under 18 U.S.C. § 1426(b). We believe that Congress intended the words "dispose of" under 18 U.S.C. § 1426(b) to mean to direct or assign for an illegal use, ⁶ making criminal intent an element of the proscribed act. And thus the use of "dispose of" in the indictment served to charge the defendant by necessary implication with the essential element of a criminal intent. The criminal intent required under 18 U.S.C. § 1426(b) may be alleged "in any form" which substantially states it. Weatherspoon, 581 F.2d at 600, citing ...