United States v. Birnbaum
| Decision Date | 02 February 1944 |
| Citation | 55 F. Supp. 356 |
| Parties | UNITED STATES v. BIRNBAUM. |
| Court | U.S. District Court — Southern District of New York |
James B. M. McNally and J. Gerard Cregan, both of New York City, for United States.
Sherman & Goldring, of New York City (Carl Sherman, of New York City, of counsel), for defendant.
At the close of defendant's case, six of the nine counts of the indictment were dismissed because the evidence failed to show that the crimes charged in the indictment had been committed. Counts one, six and nine remained. The first count charged the defendant with a violation of Title 8, § 220(a), U.S.C.A., in that on March 28, 1940, in the Southern District of New York, he knowingly and wilfully possessed and used an immigration visa as a Polish quota immigrant knowing the visa to have been unlawfully obtained. The illegality attributed to the obtaining of the visa was that he had bribed an employee of the American Consulate to cause a visa to be issued to him ahead of his turn on the Polish quota waiting list.
The sixth count charged the defendant with a violation of Title 8, § 220(b), U.S.C. A., in that on December 21, 1939, at Bordeaux, France, he knowingly and wilfully offered to sell and sold an immigration visa to one not then and there entitled to receive the same. The recipient's lack of authority to receive the visa was likewise grounded on his unlawful advancement on the Polish quota waiting list.
The ninth count charged the defendant with participation in a conspiracy with a consular employee at Bordeaux, to violate Title 8, § 220, U.S.C.A., by causing visas to be issued to persons advanced ahead of their turn on the Polish and Russian quota waiting lists.
After decision was reserved on defendant's motion to dismiss, the case was submitted to the jury under an instruction that it was unlawful to issue a quota visa to an immigrant ahead of his turn on the waiting list. The reservation of decision was founded on my uncertainty as to the correctness of that charge. The jury returned a verdict of guilty on each of the three counts.
The government concedes that the conviction cannot stand unless it is established that it was unlawful for an immigrant to obtain a quota visa ahead of his turn on the waiting list. The establishment of that proposition of law is crucial to each of the three counts. To establish this proposition the government relies on notes 161 and 162 issued by the Secretary of State, upon the recommendation of the Secretary of Labor, on August 26, 1935, to become effective on January 1, 1936, in accordance with § 24 of the Act of May 26, 1924, 8 U.S.C.A. § 222. These notes and note 163 read as follows:
Note 161. Nonpreference aliens. Section 6 of the act as amended provides that any portion of the quotas not required for the first- and second- preference groups shall be available for other quota immigrants.
The priority of nonpreference aliens is determined by the dates the applicants are registered at the consulate.
Note 162. Issuance of visas out of turn a violation of law. Under no circumstances is an applicant for a quota immigration visa to be issued a visa out of his proper turn with other registrants at the consulate, since the effect of such action would be to accord the applicant an illegal preference.
Note 163. Record of registration to be safeguarded. A system of registration must be followed at each office which will make it possible to check the basis and correctness of the priority status of an applicant at any time either before or after the issuance of a visa. Adequate safeguards must be provided to make it impossible for the records to be improperly altered. The actual recording of registrants and the issue of notices to appear for application and examination for visa should be closely supervised by a commissioned officer. Records should be kept in cabinets or filing cases which are locked when not in use. Principal officers should make periodic inspections of the records to insure that they are being properly kept.
The record of registrations, or waiting list, must be kept in record books under the supervision of a commissioned officer. The record book should be preferably a bound volume, but if a loose-leaf volume is used it should be of a type which can be locked. A card index should be kept in conjunction with the record of registrations.
These notes have never been filed with the Division of the Federal Register...
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