United States v. Laub

• Decision Date: 10 January 1967
• Docket Number: No. 176,176
• Citation: 385 U.S. 475,87 S.Ct. 574,17 L.Ed.2d 526
• Parties: UNITED STATES, Appellant, v. Lee Levi LAUB et al
• Court: U.S. Supreme Court

385 U.S. 475

87 S.Ct. 574

17 L.Ed.2d 526

UNITED STATES, Appellant,

v Lee Levi LAUB et al.

No. 176.

Argued Nov. 16, 1966.

Decided Jan. 10, 1967.

Nathan Lewin, Washington, D.C., for appellant.

Leonard B. Boudin, Washington, D.C., for appellees.

Mr. Justice FORTAS delivered the opinion of the Court.

Appellees were indicted under 18 U.S.C. § 371 for conspiring to violate § 215(b) of the Immigration and Nationality Act of 1952, 66 Stat. 190, 8 U.S.C. s 1185(b). The alleged conspiracy consisted of recruiting and arranging the travel to Cuba of 58 American citizens whose passports, although otherwise valid, were not specifically validated for travel to that country.¹

The District Court granted appellees' motion to dismiss the indictment. Chief Judge Zavatt filed an exhaustive opinion (253 F.Supp. 433 (D.C.E.D.N.Y.)). Notice of direct appeal to this Court was filed and we noted probable jurisdiction under 18 U.S.C. § 3731 because the dismissal was 'based upon the * * * construction of the statute upon which the indictment * * * is founded.' We affirm. Our decision rests entirely upon our construction of the relevant statutes and regulations.

Two statutes are relevant to this case. The first is the Passport Act of 1926, 44 Stat. 887, 22 U.S.C. § 211a. This is the general statute authorizing the Secretary of State to 'grant and issue passports.' It is not a criminal statute. The second statute is § 215(b) of the Immigration and Nationality Act of 1952, supra, under which the present indictments were brought. Section 215(b) was enacted on June 27, 1952. It is a re-enactment of the Act of May 22, 1918 (40 Stat. 559), and the Act of June 21, 1941 (55 Stat. 252). It provides that:

'When the United States is at war or during the existence of any national emergency proclaimed by the President * * * and (when) the President shall find that the interests of the United States require that restrictions and prohibitions * * * (b) * * * be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall * * * be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid passport.' (Italics added.)

Wilful violation is subjected to a fine of not more than $5,000 or imprisonment for five years, or both.

On January 17, 1953, President Truman made the finding and proclamation required by § 215(b).² As a consequence, a valid passport has been required for departure and entry of United States nationals from and into the United States and its territories, except as to areas specifically exempted by regulations. The proclamation adopted the regulations which the Secretary of State had promulgated under the predecessors of § 215(b) exempting from the passport requirement departure to or entry from 'any country or territory in North, Central, or South America (including Cuba).' 22 CFR § 53.3(b) (1958 rev.). On January 3, 1961, the United States broke diplomatic relations with Cuba. On January 16, 1961, the Deputy Under Secretary of State for Administration issued the 'Excluding Cuba' amendment (22 CFR § 53.3 (1965 rev.), 26 Fed.Reg. 482). That amendment added the two words 'excluding Cuba' to the phrase quoted above. Cuba was thereby included in the general requirement of a passport for departure from and entry into the United States.

On the same day, the Department of State also issued Public Notice 179, which stated that 'Hereafter United States passports shall not be valid for travel to or in Cuba unless specifically endorsed for such travel under the authority of the Secretary of State. * * *' 26 Fed.Reg 492. It simultaneously issued a press release announcing that:

'* * * in view of the U.S. Government's inability, following the break in diplomatic relations between the United States and Cuba, to extend normal protective services to Americans visiting Cuba, U.S. citizens desiring to go to Cuba must until further notice obtain passports specifically endorsed by the Department of State for such travel. All outstanding passports * * * are being declared invalid for travel to Cuba unless specifically endorsed for such travel. * * * These actions have been taken in conformity with the Department's normal practice of limiting travel to those countries with which the United States does not maintain diplomatic relations.'³ (Italics added.)

In Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), the petitioner sought a declaratory judgment that the Secretary of State does not have statutory authorization to impose area restrictions on travel; that if the statute were construed to authorize the Secretary to do so, it would be an impermissible delegation of power; and that, in any event, the exercise of the power to restrict travel denied to petitioner his rights under the First and Fifth Amendments. This Court rejected petitioner's claims and sustained the Secretary's statutory power to refuse to validate passports for travel to Cuba. It found authority for area restrictions in the general passport authority vested in the Secretary of State by the 1926 Act, relying upon the successive 'imposition of area restrictions during both times of war and periods of peace' before and after the enactment of the Act of 1926. 381 U.S., at 8—9, 85 S.Ct., at 1276—1277. The Court specifically declined the Solicitor General's invitation to rule also that 'travel in violation of an area restriction imposed on an otherwise valid passport is unlawful under the 1952 Act.' Id., at 12, 85 S.Ct. at 1278.⁴

We now confront that question. Section 215(b) is a criminal statute. It must therefore be narrowly construed. United States v. Wiltberger, 5 Wheat. 76, 95—96, 105, 5 L.Ed. 37 (1820) (Marshall, C.J.). Appellees urge that § 215(b) must be read as a 'border control' statute, requiring only that a citizen may not 'depart from or enter' the United States without 'a valid passport.' On this basis, they argue, appellees did not conspire to violate the statute since all of those who went to Cuba departed and re-entered the United States bearing valid passports. Only if, as the Government urges, § 215(b) can be given a broader meaning so as to encompass specific destination control—only if it is read as requiring the traveler to bear 'a passport endorsed as valid for travel to the country for which he departs or from which he returns'—would appellees be guilty of any violation.

We begin with the fact, conceded by the Government, that 'Section 215(b) does not, in so many words, prohibit violations of area restrictions; it speaks, as the district court noted in the Laub case * * * in the language of 'border control statutes regulating departure from and entry into the United States." Brief for the United States, p. 11. Nevertheless, the Government requests us to sustain this criminal prosecution and reverse the District Court on the ground that somehow, 'the text is broad enough to encompass departures for geographically restricted areas * * *.' Ibid. We conclude, however, that in this criminal proceeding the statute cannot be applied in this fashion. Even if ingenuity were able to find concealed in the text a basis for this cirminal prosecution, factors which we must take into account, drawn from the history of the statute, would preclude such a reading.

Preliminarily, it is essential to recall the nature and function of the passport. A passport is a document identifying a citizen, in effect requesting foreign powers to allow the bearer to enter and to pass freely and safely, recognizing the right of the bearer to the protection and good offices of American diplomatic and consular officers. See Urtetiqui v. D'Arcy, 9 Pet. 692, 699, 9 L.Ed. 276 (1835); Kent v. Dulles, 357 U.S. 116, 120 121, 78 S.Ct. 1113, 1115—1116, 2 L.Ed.2d 1204 (1958); 3 Hackworth, Digest of International Law 435 (1942). 8 U.S.C. § 1101(a)(30).

As this Court has observed, 'The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law * * *.' Kent v. Dulles, supra, 357 U.S., at 125, 78 S.Ct., at 1118. See Aptheker v. Secretary of State, 378 U.S. 500, 517, 84 S.Ct. 1659, 1669, 12 L.Ed.2d 992 (1964); Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965).

Under § 215(b) and its predecessor statutes, Congress authorized the requirement that a citizen possess a passport for departure from and entry into the United States,⁵ and there is no doubt that with the adoption and promulgation of the 'Excluding Cuba' regulation, a passport was required for departure from this country for Cuba and for entry into this country from Cuba. Departure for Cuba or entry from Cuba without a passport would be a violation of § 215(b), exposing the traveler to the criminal penalties provided in that section. But it does not follow that travel to Cuba with a passport which is not specifically validated for that country is a criminal offense. Violation of the 'area restriction'—'invalidating' passports for travel in or to Cuba and requiring specific validation of passports if they are to be valid for travel to or in Cuba—is quite a different matter from violation of the requirement of § 215(b) and the regulations thereunder that a citizen bear a 'valid passport' for departure from or entry into the United States.

The area restriction applicable to Cuba was promulgated by a 'Public Notice' and a press release, supra, pp. 478—479, neither of which referred to § 215(b) or to criminal sanctions. On the contrary, the only reference to the statutory base of the announcement appears in the 'Public Notice,' and this is a reference to the nonpenal 1926 Act and the Executive Order adopted thereunder in 1938.⁶ These merely authorize the Secretary of State to impose area restrictions incidental to his general powers with respect to passports. Zemel v. Rusk, supra. They do not purport to make...