United States v. Bithoney
| Decision Date | 08 January 1973 |
| Docket Number | No. 264,72-1464.,265,Dockets 72-1463,264 |
| Citation | 472 F.2d 16 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Samuel A. BITHONEY et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
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John P. White, Jr. and Monroe L. Inker, Boston, Mass. (Crane, Inker & Orteri, Boston, Mass., on the brief), for defendants-appellants.
John T. Sullivan, Jr., Asst. U. S. Atty., W. D. N. Y., Rochester, N. Y., for plaintiff-appellee.
Before FRIENDLY, Chief Judge, and MEDINA and ANDERSON, Circuit Judges.
Samuel A. Bithoney and Albert S. Bithoney appeal from judgments of conviction, entered upon the verdict of a jury, after a trial before Judge Burke in the District Court for the Western District of New York, for violation of 18 U.S.C., Sections 1015 and 2. The charge is that Albert made a false acknowledgment that (Count I) Barbara Encao Irenze appeared before him and took an oath with respect to information contained in a "Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa," that he signed the name of Samuel, his father, to this acknowledgment knowing that Barbara Encao Irenze did not appear before him and make such acknowledgment either on the date specified, August 4, 1970 or at any other time; and that Samuel aided and abetted (Count II) the making of this false acknowledgment. The physical fact of signing the acknowledgment is alleged to have taken place in Boston, Massachusetts, and the petition including the false acknowledgment is alleged to have been submitted to the Immigration and Naturalization Service in Buffalo, N. Y., in the Western District of New York. Similar allegations are made against appellants in Counts III and IV with reference to the taking of another false acknowledgment that Susan Osborne Irenze appeared and took an oath with respect to a similar petition, knowing that Susan Osborne Irenze did not appear and make such acknowledgment on the same date or at any other time. Samuel was given concurrent suspended sentences, on each Count, of imprisonment for 1 year, probation for 1 year and a fine of $500. Albert was given similar concurrent suspended sentences for 1 year, probation for 1 year and no fine. There is a stay pending the disposition of this appeal.
On June 5, 1970 orders to show cause were issued in deportation proceedings against two brothers, Aurelio and Giuseppe Irenze, who were born in Italy and who had overstayed their leave without permission of the Service. The younger brother Giuseppe had entered the United States at Miami, Florida, as a crewman on a vessel and was required to leave on or before January 23, 1970. Aurelio was admitted also at Miami as a nonimmigrant visitor for pleasure and was required to leave on or before March 30, 1970. They both lived in Rochester, N. Y.
Doubtless anticipating deportation proceedings, the two brothers, on the recommendation of a friend, Anthony Maddalena, went up to Boston to consult Samuel A. Bithoney, a lawyer, who was supposed to be an expert in immigration matters. There on December 3, 1969 Samuel signed a receipt that is in evidence reading "Received of Aurelio Irenze $2000 as part payment on immigration matter." The mother of the two boys, Assunta Irenze, was in a plight similar to that of her sons, and Samuel represented her too.
The hearing on the two orders to show cause took place before Special Inquiry Officer William B. Taffett in Buffalo on July 6, 1970. These orders to show cause had originally been returnable on June 22, 1970, but Samuel had obtained an adjournment. Samuel was present. It was developed that there was no defense to the deportation proceedings. The regular quota for Italian citizens was several years behind and neither of the boys had any skills to qualify for a Skilled Workers Preference. Samuel admitted that they were both deportable. But he casually remarked that the two boys had married American citizens and that Assunta, whose husband had not been heard of for 20 years, had also married an American citizen. Samuel said "I didn't know this until today." When asked if he had any application to make, Samuel requested 90 days for voluntary departure. The upshot was that he was given 60 days, but on July 14, 1970 he filed an appeal giving as reasons:
Aurelio was married to Barbara Encao on June 23, 1970 and Giuseppe was married to Susan E. Osborne on July 2, 1970, both at Rochester.
The testimony of what occurred before the petitions of the wives were filed with the Service in Buffalo on August 19, 1970 covers a wide field and, if believed by the jury, would have indicated that Samuel suggested the fake marriages, that he formulated the false answers that were to be given by the girls and their husbands at the investigation that was sure to and did follow the disclosure of the marriages, and that the whole scheme was devised and supervised by Samuel from his Boston office. But the jury disagreed on the conspiracy count of the indictment (Count VII) and also on Count VI in which Samuel was charged with aiding and abetting Aurelio in making false statements in his interview with an immigration investigator on October 13, 1970 at Buffalo. Samuel was acquitted on Count V which charged him with presenting Barbara's petition to the Immigration and Naturalization Service at Buffalo on August 19, 1970 knowing it contained false statements. In any event, we are only concerned here with the allegedly false acknowledgments charged in Counts I, II, III and IV.
As to these acknowledgments, there was a clear conflict in the testimony adduced by the government, on the one hand, and the denials and explanations of the Bithoneys, on the other. The two brothers, and the two girls and others, testified that the two petitions were blank when the girls signed them in Rochester, that no member of the Irenze family group was in the Bithoney law office in Boston in August, 1970, that neither of the girls was ever in Boston in their lives and never swore to anything before either of the Bithoneys or anyone else. The brother-in-law Anthony Liccione testified:
The background to the signing of the petitions in blank by the two girls was furnished by the testimony of Aurelio backed up by exhibits. After the deportation hearing in Buffalo on July 6, 1970, Samuel and the Irenzes went to a conference room in the Courthouse. Samuel procured a number of blank I-130 forms of "Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa." They all sat down at a table and Samuel explained how these forms were to be filled out, making notes on a copy that has since been lost. He gave Aurelio this form and also four more which were entirely blank. The instructions were that Aurelio was to fill out two of these as well as he could from the sheet that has been lost, have the two girls sign two others completely blank, except for the two signatures, and then send them all to the Bithoney office in Boston. There they would be filled in by typewriter from the two containing data to be written in by Aurelio according to directions, with such additions and corrections as might be necessary.
We may assume that the jurors credited this testimony and concluded that the envelope that arrived by mail in the Bithoney law office in the early part of August, 1970 contained the two forms made out by Aurelio, misspelling and all (Exhibits G-21 and G-22), the two forms entirely blank except for the signatures of Barbara and Susan, and perhaps a birth certificate or two. And the jury would also have been warranted in finding, contrary to the testimony of the Bithoneys, to which we shall refer in a moment, that Samuel or Albert, or both, decided how the blanks should be filled in, including the insertion of "Halifax" and other data, caused Joseph Bithoney to fill in the blanks on his typewriter, also wrote out and signed the acknowledgments, although the girls were never in Boston and had never taken an oath or acknowledged before any Notary that they had executed the petitions; and that then the Bithoneys had caused the petitions, containing the false acknowledgments, to be filed with the Immigration Service at Buffalo on August 19, 1970.
Samuel testified in his own defense that on Saturday, August 8, 1970, Aurelio, Giuseppe, Tony Liccione (the brother-in-law) and two young ladies came to his office in Boston, and that he had previously received from Aurelio by mail on August 6, 1970 the two petitions "completely filled out" and typewritten. He could not remember whether or not the petitions had been signed by the two girls before he received them from Aurelio. He said the information in the petitions had been previously furnished by Aurelio and the typing in his office had been done by his son Joseph, who worked in the office. As to the signatures and acknowledgments:
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