United States v. Flores-Rodriguez, 395

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation237 F.2d 405
Docket NumberNo. 395,Docket 24097.,395
PartiesUNITED STATES of America, Appellee, v. Roberto FLORES-RODRIGUEZ, Defendant-Appellant.
Decision Date01 October 1956


Paul W. Williams, U. S. Atty., for the Southern Dist. of New York, New York City (Jerome J. Londin, Asst. U. S. Atty., New York City, of counsel), for appellee.

Marchetti & Ehrlich, New York City (Joseph A. Marchetti, New York City, of counsel), for defendant-appellant.

Before FRANK, HINCKS and WATERMAN, Circuit Judges.

WATERMAN, Circuit Judge.

A one count indictment charged that, in violation of 22 U.S.C.A. § 1203 and 18 U.S.C. § 1621, defendant committed perjury by falsely stating in a signed and sworn Application for Immigration Visa and Alien Registration in Havana, Cuba that he had not been arrested or indicted for or convicted of any offense.

The defendant waived trial by jury and was tried before Judge Cashin. After trial, defendant moved for a judgment of acquittal. The judge denied the motion, found defendant guilty, and entered a judgment of conviction, sentencing defendant to a term of six months' imprisonment. Defendant appeals.

There was evidence at the trial of the following facts: On June 29, 1949, defendant, a citizen of Cuba, was admitted to the United States as a 29-day visitor. He returned to Cuba on July 27, 1949. Defendant next entered the United States on July 28, 1950, again as a 29-day visitor. Fifty-one days later, on September 17, 1950, or 22 days after he was supposed to have left the United States, defendant was arrested by an officer of the New York City Police Department for a violation of Section 722 (8), New York Penal Law, McK.Consol. Laws, c. 40, which provides:

"§ 722. Disorderly conduct: "Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct * * *
"8. Frequents or loiters about any public place soliciting men for the purpose of committing a crime against nature or other lewdness".

The arresting officer's sworn complaint stated in part:

"* * * On September 17, 1950 at men\'s toilet at Duffy Square, 47th Street and 7th Avenue, and vicinity (about 5:30 P.M.) * * * the Defendant did loiter for the purpose of inducing others to commit lewd and indecent acts, from about 5 to 5:30 o\'clock P.M. did move from one urinal to several others, did manipulate the exposed and naked parts of his person, to wit, his penis, to the view of others, and did motion with his head in the direction of deponent and several others in said toilet."

Defendant was tried in the City Magistrate's Court of New York City on September 18, 1950 and found guilty. On September 25, 1950 he was sentenced to 30 days. The execution of the sentence was suspended and defendant was permitted to return to Cuba. On November 7, 1952, defendant presented himself at the American Consulate in Havana, Cuba, and there executed an Application for Immigration Visa and Alien Registration in order to obtain permanent admission to the United States. In this application defendant stated "* * * I have not been arrested or indicted for, or convicted of, any offense * * *" The application was subscribed and sworn to before a Vice-Consul of the United States of America, in Cuba, on November 7, 1952. It was then visaed by the Vice-Consul and became an immigration visa. Defendant, using this visa, entered the United States on November 19, 1952, as one properly qualified to remain here as a permanent resident of this country.

Subsequent to his admission as a permanent resident, defendant was again charged with violating Section 722, subdivision 8, New York State Penal Law, was arrested, and following a plea of guilty on July 21, 1954, was sentenced to another 30 days.

Defendant contends that the United States failed to present sufficient evidence to prove him guilty of the crime of perjury. He contends that the following elements of the crime were not established: the authority of the Vice-Consul to administer the oath, the identity of Defendant as the person making the sworn statement, the falsity of the statement, knowledge of defendant that the statement was false, and the materiality of the statement to the issue of defendant's admissibility into the United States. We do not agree with defendant's contentions.

The competence of the Vice-Consul to administer the oath and the authorization for the oath are established as a matter of law by 22 U.S.C.A. § 1203 and former 8 U.S.C. § 207(f) (1946 Ed.) (now 8 U.S.C.A. § 1202(e).

Defendant's identity as the person who took the oath and executed the sworn statement was satisfactorily established by documentary evidence and oral testimony.

Defendant invoked the well-known rule that the falsity of a statement charged to be perjurious must be established by two witnesses, or by one witness supported by independent evidence. Hammer v. United States, 1926, 271 U.S. 620, 46 S.Ct. 603, 70 L.Ed. 1118. This rule, it must be remembered, deals with the falsity of the oath and not with its making. United States v. Nessanbaum, 3 Cir., 1953, 205 F.2d 93; United States v. Hall, D.C.Ga.1890, 44 F. 864, 10 L.R.A. 324.

It does not apply where the falsity of the oath is established by documentary evidence or written testimony springing from the Defendant or by a public record known to the Defendant when he took the oath. United States v. Wood, 1840, 14 Pet. 430, 39 U.S. 430, 10 L.Ed. 527. See generally, Arena v. United States, 9 Cir., 1955, 226 F.2d 227, certiorari denied, 1956, 350 U.S. 954, 76 S.Ct. 342.

The case at bar is clearly within the foregoing exceptions. Not only was the falsity of the oath established by the certified copy of the records of defendant's first arrest, trial and conviction in New York, but also by defendant's own signed and sworn statement to Immigration officials on the occasion of his leaving the country in 1950. It has been held that a conviction of perjury for denying previous crimes can be sustained on the production of the record of a prior conviction without more. Holy v. United States, 7 Cir., 1921, 278 F. 521. So too can the falsity of the oath be established by an extra-judicial admission made prior to the making of the false statement. United States v. Buckner, 2 Cir., 1941, 118 F.2d 468; See Warszower v. United States, 1941, 312 U.S. 342, 61 S.Ct. 603, 85 L.Ed. 876.

Defendant argues that he could not cope with the English language, and that the United States failed to prove that he knew the statement was false. We are satisfied with the sufficiency of the evidence to support the trial court's finding to the contrary.

Defendant's final contention is that his false statement was not material, because even if he had told the truth, the vice-consul would have been obliged to issue the visa under the existing Immigration law. We are unwilling to believe the vice-consul is so helpless, and we think that defendant's false statement was material if a truthful answer might have induced the vice-consul to institute an investigation which might have resulted in a proper refusal of the visa. United States ex rel. Jankowski v. Shaughnessy, 2 Cir., 1951, 186 F.2d 580; United States ex rel. Fink v. Reimer, 2 Cir., 1938, 96 F.2d 217.

The vice-consul should not have issued an immigration visa to the defendant if the defendant was within an excluded class of aliens under the statute then in force, 8 U.S.C.A. § 136 (1946 Ed.),* the pertinent parts of which read as follows:

"The following classes of aliens shall be excluded from admission into the United States:
"(a) All idiots, imbeciles, feebleminded persons, epileptics, insane persons; persons who have had one or more attacks of insanity at any time previously; persons of constitutional psychopathic inferiority; persons with chronic alcoholism —
* * * * *
"(d) Persons not comprehended within any of the classes enumerated in paragraphs a, b, or c, who are found to be and are certified by the examining surgeon as being mentally or physically defective, such physical defect being of a nature which may affect the ability of such alien to earn a living —
* * * * *
"(e) Persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude: Provided, That nothing in sections 136 or 137 of this title shall exclude, if otherwise admissible, persons convicted, or who admit the commission, or who teach or advocate the commission of an offense purely political —"

We hold that by the defendant's untrue answer to the question relating to any previous conviction the vice-consul was not put on notice to investigate, and we think an investigation could have proved that the immigrant was within one of the excluded classes above set forth.

Under subsection (e) defendant was excludable if he had been convicted of a "crime or misdemeanor" "involving moral turpitude". Under the New York law the disorderly conduct for which defendant was convicted is denominated an "offense" and is called neither a "crime" nor a "misdemeanor." The New York Courts have adjudicated upon this difference in nomenclature and have held that this "offense" of disorderly conduct is indeed neither a "crime" nor a "misdemeanor." People v. Gilbert, Sp.Sess. 1939, 12 N.Y.S.2d 632; People v. Montgomery, Co.Ct.1940, 17 N.Y.S.2d 71; but cf. People v. French, 1886, 102 N.Y. 583, 7 N.E. 913. It would appear that these decisions were prompted in order to define the jurisdiction of the inferior magistrates' courts as opposed to other courts dealing with criminal conduct. Defendant therefore claims subsection (e) not applicable, and the government on appeal before us appeared to concur that this conviction for this "offense" though involving "moral turpitude" was not a "crime * * * involving moral turpitude".


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