United States v. Davey, Cr. 153-201.

• Decision Date: 05 August 1957
• Docket Number: Cr. 153-201.
• Citation: 155 F. Supp. 175
• Parties: UNITED STATES of America v. Rafael Alexander DAVEY, Defendant.
• Court: U.S. District Court — Southern District of New York

155 F. Supp. 175

UNITED STATES of America v. Rafael Alexander DAVEY, Defendant.

Cr. 153-201.

United States District Court S. D. New York.

August 5, 1957.

Paul W. Williams, U. S. Atty. for Southern Dist. of N. Y., New York City, for the United States. John T. Moran, Asst. U. S. Atty. for Southern Dist. of N. Y., New York City, of counsel.

Haskell R. Barst, New York City, for defendant.

BOOTLE, District Judge (sitting by designation).

After proper waiver of jury trial the defendant was tried by this Court without a jury on a two count indictment, the first of which charges him with failing and neglecting to register as required by Section 3 of Universal Military Training and Service Act, Title 50 U.S.C.A.Appendix, § 453, and the second of which charges a violation of Title 18 U.S.C.A. § 1001, in that

"the defendant, in a matter within the jurisdiction of a department and agency of the United States, to wit, the Department of Justice, Federal Bureau of Investigation, unlawfully, wilfully and knowingly did make and cause to be made, false, fictitious and fraudulent statements and respresentations, to wit, (a) that Enos Jennings Bromwell was unknown to him; and (b) that he had never used the name Enos Jennings Bromwell; whereas, in truth and in fact as the defendant then and there well knew, Enos Jennings Bromwell was a person known to him and that he had used the name Enos Jennings Bromwell on or about the 19th day of April, 1951, when he registered with Local Board No. 12, Selective Service System, New York City."

At the conclusion of the evidence counsel for the defendant moved for dismissal of the indictment as to both counts. Briefs were invited and submitted and decision reserved until this date.

Meanwhile, the Government has joined in the motion to dismiss Count 1 because of the following concatenation of statutes and proclamations. Presidential Proclamation No. 2799, issued July 20th, 1948, 50 U.S.C.A.Appendix, § 453 note, imposed a duty upon aliens born in 1922, after August 30th, 1922, to register on August 30th, 1948. The defendant came within that age group, having been born December 12, 1922. But the statute in force at the issuance of said Proclamation required registration of those persons "residing" in the United States. Act of June 24th, 1948, Title 1, Section 3, 62 Stat. 605. Under the holding of McGrath v. Kristensen, 1950, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173, the defendant probably cannot be said to have been residing in the United States. Accordingly, he was under no duty to register under Proclamation No. 2799.

On June 19th, 1951, the statute was amended to its present form imposing a duty to register upon "every other male person now or hereafter in the United States." (65 Stat. 75, Title 50 U.S.C.A.Appendix, § 453). Thereafter, the President issued Proclamation No. 2942 on August 30th, 1951, 50 U.S. C.A.Appendix, § 453 note. This Proclamation imposed the duty of registration upon those aliens who were born on or after September 15, 1925. Since the defendant was born on December 12, 1922, he was under no duty to register under the latter Proclamation, and the duty to register under the original Proclamation would appear to be doubtful in view of the statutory language and the lack of a precise definition of the term "residing" in the administrative regulations.

The motion of the Government to dismiss the indictment as to Count 1 is granted.

The defendant's motion to dismiss Count 2 is upon the ground that Title 18 U.S.C.A. § 1001 is not applicable, that the alleged false statements do not constitute a crime thereunder and that said Section applies only to those cases where false statements are made to branches of the Government which have the power to decide and act upon a particular subject matter.

This identical question has been decided adversely to the Government in two carefully considered cases which are, on their facts, indistinguishable from this case. In United States v. Levin, U.S.D.C.Colo.1953, 133 F.Supp. 88, 90, the defendant was indicted in Count 1 for a violation of the National Stolen Property Act, 18 U.S.C.A. § 2314 and in Count 2 for making a false statement to a Federal Bureau of Investigation agent who was investigating the crime charged in Count 1. The Court, holding Section 1001 inapplicable, reasoned that to hold otherwise would mean that the age-old concept of the crime of perjury would be gone; that any person failing to tell the truth to the myriad of Government investigators about any trivial matter, civil or criminal, within the jurisdiction of a department or agency of the Government would be guilty of a crime with greater severity than that of perjury (Section 1001 authorizes 5 years plus $10,000, whereas the perjury statute, 18 U.S.C.A. § 1621, authorizes 5 years plus $2,000); that Congress could not have intended this portion of this statute to have such broad application; that a literal construction of a statute should not be indulged when it would produce absurd consequences, or flagrant injustices, or results not intended by Congress, and concluded that "When the charge involves statements made when not under oath a reasonable and sensible construction of the statute would be to limit its application to persons under legal obligation to speak or to give information to representatives of an agency or department of the United States who have authority to finally dispose of the matter being investigated, and to cases where the keeping of records or the filing of documents are required or permitted by law. In other cases the perjury statutes are adequate."

United States v. Stark, U.S.D.C.Md. 1955, 131 F.Supp. 190, 199, holds that negative answers, even if given under oath, by contractors to questions asked by agents of the Federal Bureau of Investigation who were investigating reports of an alleged bribery attempt as to whether the contractors knew of money given to officials of the Federal Housing Administration were not "statements" within the statute and that the matter was not one "within the jurisdiction" of the agency. We are indebted to the Stark case for a detailed review of the statutory evolution of what is now Section 1001 from its origin "almost 100 years ago in the wake of a spate of frauds upon the Government", through the 1934 amendment, 48 Stat. 996, the last amendment, except for...