United States v. Birch

• Decision Date: 12 December 1972
• Docket Number: No. 72-1376,72-1377.,72-1376
• Parties: UNITED STATES of America, Appellee, v. Raymond BIRCH, Appellant. UNITED STATES of America, Appellee, v. Birsen N. BIRCH, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

470 F.2d 808 (1972)

UNITED STATES of America, Appellee, v. Raymond BIRCH, Appellant.

UNITED STATES of America, Appellee, v. Birsen N. BIRCH, Appellant.

Nos. 72-1376, 72-1377.

United States Court of Appeals, Fourth Circuit.

Argued October 2, 1972.

Decided December 12, 1972.

Thomas C. Green, Washington, D. C. (Ginsburg, Feldman & Bress, and David G. Bress, Washington, D. C., on brief), for appellants.

George Beall, U. S. Atty., D. Md. (Paul R. Kramer, Deputy U. S. Atty., and Herbert Better, Asst. U. S. Atty., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and CRAVEN and BUTZNER, Circuit Judges.

BUTZNER, Circuit Judge:

Raymond R. Birch and his wife, Birsen N. Birch, were convicted of violating 18 U.S.C. § 499 (1970).¹ On this appeal they contend that the district court lacked jurisdiction to try them, that the court should have granted their motions for judgments of acquittal, and that the court should have allowed them to introduce evidence in support of the defenses of justification and duress. Finding no cause for reversal in these assignments of error, we affirm.

Mr. Birch, a civilian employee of the United States Department of Defense, lived with his wife in the Federal Republic of Germany. In October 1970 a German court convicted both of them of mistreating a young servant and sentenced them to jail. The court released them from custody pending appeal upon the condition, among others, that they surrender their identity documents and passports. Embittered by their trial and apprehensive of the future, they decided to flee from Germany to the United States. They sought help from a United States army sergeant, who provided them with false applications for identity cards, immunization records, and leave orders in the fictitious names of Sergeant 1st class Jack L. Finn and Sergeant 1st class Vivian L. Finn. Using these aliases, Mr. and Mrs. Birch escaped from Germany on commercial airline flights to the United States.

The indictment charged the Birches violated § 499 in Germany. The defendants do not challenge Congress's constitutional power to punish the extraterritorial forgery or false use of government documents. Instead, they contend (a) that in enacting § 499 Congress did not invoke extraterritorial jurisdiction, or (b) that even if it did, the indictment did not charge intent to defraud the United States government, an essential predicate for extraterritorial jurisdiction.

A federal statute is not necessarily limited to crimes committed within the territorial jurisdiction of the United States because it lacks an express provision that it should be applied extraterritorially. United States v. Bowman, 260 U.S. 94, 97, 43 S.Ct. 39, 67 L.Ed. 149 (1922), which sanctioned a prosecution for defrauding a government corporation by acts committed on the high seas and in a foreign country, states the rule for determining whether a criminal law should be given extraterritorial effect. There the Court distinguished two classes of penal legislation: statutes punishing crimes against the peace and good order of the community apply only to acts committed within the territorial jurisdiction of the United States unless Congress directs otherwise; in contrast, laws punishing fraud against the government include by implication acts committed in foreign countries.² Extraterritoriality for § 499 should be inferred, therefore, because it is concerned with the counterfeiting and misuse of military passes, a species of fraud against the government. Moreover, the origin of § 499 supports this inference. The statute was originally enacted in 1917 when the United States was preparing to send a large expeditionary force to Europe.³ It is reasonable to assume that Congress was aware that the integrity of military passes would be threatened abroad as well as at home, and it is proper to infer that Congress intended to protect the government against forgery of these papers wherever the armed forces of the United States were stationed.

The basis found in international law for extraterritorial application of § 499 is the principle of protective jurisdiction. The protective principle determines jurisdiction "by reference to the national interest injured by the offense."⁴ It provides an appropriate jurisdictional base for prosecuting a person who, acting beyond the territorial boundaries of the United States, falsifies its official documents.⁵ Because the national interest is injured by the falsification of official documents no matter where the counterfeit is prepared, we conclude that Congress intended § 499 to apply to persons who commit its proscribed acts abroad.

We also conclude that the indictment charged offenses against the United States. Each count is framed in the language of the statute and adequately alleges a violation of its provisions. This is ordinarily sufficient unless the statute omits an element of the offense or includes it by implication. United States v. Weems, 398 F.2d 274, 275 (4th Cir. 1968), cert. denied, 393 U. S. 1099, 89 S.Ct. 894, 21 L.Ed.2d 790 (1969). Here the statute is complete. The gravamen of the offenses is the assault on the integrity of the United States and its official documents. The United States has a legitimate interest in assuring foreign governments that its military passes are valid and that counterfeits of its official documents cannot be used with impunity to deceive the citizens and officials of foreign countries. Therefore, the district court correctly held that the indictment sufficiently charged a crime against the United States, although it specified that the Birches intended to use the forgeries to deceive foreign officials and airline employees.

The principal defect in the government's proof, Mr. and Mrs. Birch complain, is the absence of testimony from any eyewitness that they actually exhibited the forged leave orders to German custom officials and airline employees when they boarded the aircraft for travel to the United States. However, display of the forgeries is not an element of the crimes defined by the statute. The offenses charged in Counts Three and Four (use and possession with intent to defraud) were completed when the Birches having accepted possession of the forged papers from the army sergeant, boarded the aircraft intending to use the counterfeits to facilitate their departure. The offenses charged in Counts Five and Six (impersonation with intent to defraud) were completed when the Birches, armed with the forgeries, boarded the aircraft falsely posing as military personnel named Finn. We need not recite the evidence in detail. Viewing the proof presented by the government in its most favorable light, it tended to prove these charges beyond a reasonable doubt. Bell v. United States, 185 F.2d 302, 310 (4th Cir. 1950), cert. denied, 340 U.S. 930, 71 S. Ct. 492, 95 L.Ed. 671 (1951). Similarly, the evidence was sufficient to show that Mrs. Birch participated in the illegal activities charged in Counts One and Two.

Although the district judge allowed the defendants to present evidence of their concern over their plight to negate the intent to defraud required by § 499, he excluded evidence in support of the defenses of justification and duress. In this we find no error. To maintain the defense of duress or coercion the federal rule requires apprehension of impending death or serious bodily harm. D'Aquino v. United States, 192 F.2d 338, 357-358 (9th Cir. 195...