United States v. Lutwak

• Citation: 195 F.2d 748
• Decision Date: 16 April 1952
• Docket Number: No. 10326-10328.,10326-10328.
• Parties: UNITED STATES v. LUTWAK. UNITED STATES v. KNOLL. UNITED STATES v. TREITLER.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

195 F.2d 748 (1952)

UNITED STATES v. LUTWAK.

UNITED STATES v. KNOLL.

UNITED STATES v. TREITLER.

Nos. 10326-10328.

United States Court of Appeals Seventh Circuit.

January 3, 1952.

Rehearing Denied April 16, 1952.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Richard F. Watt, A. Bradley Eben and Bernard Weissbourd, all of Chicago, Ill., for appellant.

Otto Kerner, Jr., U. S. Atty., James B. Parsons, Asst. U. S. Atty., Chicago, Ill., Robert J. Downing, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before MAJOR, Chief Judge, DUFFY and LINDLEY, Circuit Judges.

LINDLEY, Circuit Judge.

Marcel Max Lutwak, Munio Knoll, alias Zygmunt Romankiewicz, and Regina Treitler were indicted jointly with Leopold Knoll, who was found not guilty, and Grace Klemtner, dismissed by the court, upon a count charging conspiracy to commit offenses against the United States, that is, to violate Sections 180a and 220(c),¹ Title 8 U.S.C.A., each of which forbid obtaining entry into the United States by a willfully false or misleading representation, statement or document required by the immigration laws; and to defraud the United States of its governmental functions and its right to administer its immigration laws, by effectuating the illegal entry of three aliens into the United States as spouses of United States citizens having honorable discharges from service in the Armed Forces of the United States during the Second World War, as provided by Section 232, Title 8 U.S.C.A. commonly known as the War Bride Act. Counts charging substantive offenses and aiding and abetting were dismissed for lack of proof of proper venue. Lutwak, Knoll and Treitler were found guilty and sentenced by the court and have perfected this appeal. We are concerned only with the charge of conspiracy and the proceedings thereunder.

In substance the conspiracy count charged that the parties conspired to have Marcel Lutwak, Bessie Osborne and Grace Klemtner, each of whom was an honorably discharged veteran of the Second World War, proceed to Paris, France, and there falsely pretend to marry respectively Maria Knoll, Munio Knoll and Leopold Knoll, all three of whom were of foreign nationality, and to bring them into this country as spouses of the veterans and thus to violate the immigration quota laws. It is readily apparent that an essential element of the crime charged lay in the averment that the three Parisian ceremonies were in fact not true marriages but spurious in character, for, if valid marriages came into being, the fact that the motives back of them were entries into this country would be wholly immaterial. Consequently, the contest in the trial court centered largely about these two factual questions, viz., did defendants conspire and, if so, did the government prove by competent evidence that the marriages were in fact invalid.

In so far as the issue of common purpose and design is concerned, we think it clear that the court properly overruled the motion for acquittal and submitted the issue to the jury. The evidence, in its aspects most favorable to the government, warranted a jury finding that the following are the facts. Regina Treitler, a sister of Munio Knoll and Leopold Knoll and an aunt of Marcel Lutwak, in 1947 was living in Chicago; her nephew Lutwak also lived in that city. The two male Knolls, brothers of Treitler and uncles of Lutwak, were in Paris. Maria Knoll was likewise in Paris. She had been married to Munio Knoll in 1932.² Mrs. Treitler, in the summer of 1947, inquired of a friend, Anne Zapler, whether the latter knew of veteran girls who would be willing to go to Europe to marry her brothers and bring them to the United States, telling her that they had been in concentration camps and were in a sorry plight. Mrs. Treitler said that "they" wanted someone who had been in service; that she would see that the girls' ways were paid; that the marriages need not be consummated, and that divorces could be obtained after six months. Lutwak also talked to Mrs. Zapler about the suggested action. Following these conversations, in September, Mrs. Zapler introduced Bessie Osborne to Lutwak as an ex-Wave, who, later the same month, told Mrs. Zapler that Osborne had consented to go and that "they" were happy about it. During the summer, in August, Lutwak went to Paris, there married his aunt, Maria Knoll, the undivorced or divorced wife of his uncle Munio, and brought her to America as a war bride, leaving her husband or former husband, his uncle, in Paris with his brother, Leopold Knoll, who had been present at this ceremony. Shortly later Lutwak told Mrs. Zapler that Bessie Osborne had consented to go to Paris. Mrs. Treitler also talked to Grace Klemtner, telling her that she, Treitler, was going to Paris, and proposed that Grace do likewise.

Lutwak told Osborne that his family wanted to bring his Uncle Leopold to the United States; that he was in search of a woman who had been in service to marry this uncle and bring him into this country; that he would pay $1000 and that within six months she could have a divorce. Treitler told her substantially the same. Lutwak also said to her that he had another uncle in Paris, Munio Knoll, who was married and whose wife was in America and that the family wanted to effectuate a reunion between the two. We bear in mind that shortly before that time, Lutwak had gone through a marriage ceremony with Maria, his aunt, whom, he told Osborne, he desired to reunite with her husband, his Uncle Munio, by bringing the latter to America. He then asked Osborne if she would marry Munio instead of Leopold. He agreed to pay her $500, and did pay for clothes she bought for the trip. What we have recounted is not a complete narration of all the facts and circumstances of record up to November 1, 1947, but will serve as a brief resume of the salient essentials.

Following the events related, Mrs. Treitler and Bessie Osborne went, on October 25, 1947, by airplane, to Paris, where, for the first time, Osborne met Munio Knoll. On November 3, she participated in a marriage ceremony with him. The two remained in Paris, living at different places, until November 12, 1947, when, after having ostensibly complied with the requirements of the War Bride Act, they left Paris by airplane for Chicago. Before they left, Treitler promised Osborne $1000. During her stay in Paris, Osborne attended the marriage ceremony of Grace Klemtner and Leopold Knoll, the latter of whom Lutwak had first suggested she marry. Upon her return to Chicago, Lutwak, in Munio's presence, gave her a check for $1000.

On November 1, 1947, one week after Treitler and Osborne left this country, Grace Klemtner followed them by air. She took with her her discharge from the army. There on November 2 or 3, she met, for the first time, Leopold Knoll. On November 6, she married him. While in Paris, she and Leopold lived at different hotels; and, very shortly, she proceeded, unaccompanied, to England for a short visit. She returned to New York in December, 1947. Leopold entered New York under the provisions of the War Bride Act, in early December 1947. The two did not live together. She proceeded immediately to California where she remained until she appeared before the grand jury in Chicago, about April 1, 1950. After that time, she testified, she lived with him.

From this evidence the jury was fully justified in finding that a concerted scheme was hatched in the summer of 1947 by the prime movers, Lutwak and Treitler, whereby they would obtain, by means of marriages with the three veterans, entry of their three relatives into this country; that this plan sprang from the brains of the two and was communicated to and joined by the girls and the aliens; that it culminated in the entries claimed to be illegal. Here was evidence of a common design, carried into execution by the interrelated, coordinated conduct of the several parties, who progressively pursued the one object. In the face of this evidence, we can not say, as a matter of law, that there was more than one scheme, for it was sufficient to justify the jury in finding that there was one over-all common design and purpose. Thus, in Braverman v. United States, 317 U.S. 49, at page 54, 63 S.Ct. 99, at page 102, 87 L.Ed. 23, the court said: "The allegation in a single count of a conspiracy to commit several crimes is not duplicitous, for `The conspiracy is the crime, and that is one, however diverse its objects'. Frohwerk v. United States, 249 U.S. 204, 210, 39 S.Ct. 249, 252, 63 L.Ed. 561; Ford v. United States, 273 U.S. 593, 602, 47 S.Ct. 531, 534, 71 L.Ed. 793; United States v. Manton, 2 Cir., 107 F.2d 834, 838. A conspiracy is not the commission of the crime which it contemplates, and neither violates nor `arises under' the statute whose violation is its object. United States v. Rabinowich, supra, 238 U.S. 78, 87-89, 35 S.Ct. 682, 684, 685, 59 L.Ed. 1211; United States v. McElvain, 272 U.S. 633, 638, 47 S.Ct. 219, 220, 71 L.Ed. 451; see United States v. Hirsch, 100 U.S. 33, 34, 35, 25 L.Ed. 539. Since the single continuing agreement, which is the conspiracy here, thus embraces its criminal objects, it differs from successive acts which violate a single penal statute and from a single act which violates two statutes. See Blockburger v. United States, 284 U.S. 299, 301-304, 52 S. Ct. 180, 181, 182, 76 L.Ed. 306; Albrecht v. United States, 273 U.S. 1, 11, 12, 47 S. Ct. 250, 253, 254, 71 L.Ed. 505." See also Blumenthal v. United States, 332 U.S. 539, 558, 68 S.Ct. 248, 92 L.Ed. 154; Ford v. United States, 273 U.S. 593, 602, 47 S.Ct. 531, 71 L.Ed. 793; United States v. Rabinowich, 238 U.S. 78, 87-89, 35 S.Ct. 682, 59 L.Ed. 1211; United States v. Coplon, D.C.N.Y., 88 F.Supp. 912. The evidence relied upon by the government reflected substantial basis for the finding of the jury, which necessarily determined by its verdict that the defendants understood and knowingly participated in a coordinated...