United States v. Sacco

• Decision Date: 21 July 1970
• Docket Number: No. 24219.,24219.
• Citation: 428 F.2d 264
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Filippo SACCO aka John Rosselli, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

428 F.2d 264 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Filippo SACCO aka John Rosselli, Defendant-Appellant.

No. 24219.

United States Court of Appeals, Ninth Circuit.

June 17, 1970.

Rehearing Denied July 21, 1970.

Morris Lavine (argued), Los Angeles, Cal., for appellant.

David R. Nissen (argued), Chief, Special Prosecutions Division, Wm. Matthew Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellee.

Before BROWNING, DUNIWAY and HUFSTEDLER, Circuit Judges.

DUNIWAY, Circuit Judge:

A jury found the appellant guilty on all counts of a six-count indictment; he received a six-month sentence on the first count and a thirty-day sentence on each of the remaining counts, the latter to run concurrently with each other and with the first thirty days of the sentence on the first count. Count one charged failure to register as an alien in violation of 8 U.S.C. §§ 1302 and 1306(a); counts two through six charged five violations of 8 U.S.C. §§ 1305 and 1306(b), which require an alien annually to notify the Attorney General of his current address. We affirm. Viewing the evidence in the light most favorable to the government, we state the facts established at trial.

Between 1923 and 1940 the defendant, using the name John or Giovanni Rosselli, though with some variations in spelling, claimed several different dates and places of birth, all in the United States. Since 1940, the effective date of the sections of the United States Code requiring registration of aliens, the defendant has consistently claimed that he was born in Chicago on June 4, 1905. An entry in the Chicago Register of Births under the name of Giovanni Rosselli, supports his claim, but that entry was shown at trial to be a forgery. His earlier inconsistent claims were shown to be supported by similarly forged or false documents, or to be unsupported.

In fact, the defendant was born Filippo Sacco in Italy on July 4, 1905. He and his mother, Maria Sacco, entered this country as aliens in 1911 to join his father and her husband, Vincenzo Sacco, who had preceded them from Italy. The defendant attended school and lived in Boston until his arrests in 1922 and 1923 on federal narcotics and state grand larceny charges. He was never brought to trial on those charges because he jumped bail, changed his name to Rosselli, and fled to California. Both indictments were ultimately dismissed. The defendant's father, Vincenzo Sacco, remained an alien until his death in 1918; the defendant's mother registered as an alien in 1940, and filed annual alien reports until the time of trial. The defendant has never been formally naturalized, nor has he registered as an alien or filed annual alien reports for the years 1965-67.

After the trial started, and after the reception of much of the government's evidence, the defense announced its intention to rely on an entirely new source of citizenship, at least in the alternative. This was that even if the government was correct in its assertion that the defendant was Filippo Sacco (which defendant did not then but does now concede), he was still not an alien, because his mother had married a naturalized United States citizen, Liberato Cianciulli, in 1922. The defense offered to stipulate to much of Filippo Sacco's life history, as well as to the marriage of Maria Sacco and Liberato Cianciulli in 1922. The defense later introduced marriage records of the City of Boston showing that such a marriage took place on February 8, 1922. At the time of the marriage, citizenship by "derivation" was conferred on the minor children of alien women who married United States citizens by an 1855 statute, the Act of February 10, 1855, 10 Stat. 604, § 1994 Rev.Stat.U.S., repealed by Act of September 22, 1922, 42 Stat. 1022.¹ See United States v. Kellar, C.C.Ill.1882, 13 F. 82.

The government countered this new line of defense by attempting to show that the marriage of the defendant's mother had not conferred citizenship under the 1855 Act either on her, or by derivation from her, on the defendant as her minor child. Cianciulli had a wife living in Italy at the time of the marriage; they married in order to legitimate a daughter born out of wedlock in 1920 rather than with the intention of living together as man and wife; the couple, who had been living together out of wedlock, had separated well before the marriage and never lived together again. Shortly after the marriage, Cianciulli departed permanently for Italy, but Maria stayed here. Her 1940 alien registration stated that she had never had a married name other than Sacco. Thus she never claimed citizenship conferred by the marriage.

1. The effect of 8 U.S.C. § 1451(a) and (e).

The defendant's chief line of argument is that once derivative citizenship has been acquired by virtue of a presumptively valid marriage, it may be removed only as provided by Congress in 8 U.S.C. § 1451(a) and (e). He says that to remove citizenship in a criminal trial by means of a collateral attack on the validity of the marriage of his mother is a denial of due process and beyond the power of Congress.²

The flaw in this argument is that to benefit from it the defendant must first establish that he is a citizen. At trial the issue finally joined was whether the Sacco-Cianciulli marriage had succeeded in conferring citizenship on Maria Sacco, and therefore on her minor son the defendant, in the first place. Section 1451 deals with proceedings brought "for the purpose of revoking and setting aside the order admitting such person to citizenship and cancelling the certificate of naturalization * * *." Read literally, it cannot apply here. There never was an order admitting either the defendant or his mother to citizenship; no certificate of naturalization was ever issued to either of them. If the defendant's mother became a citizen, it was by virtue of the marriage alone, and it was only if she was married to a citizen that the defendant could derive citizenship from her. The government sought to show that there had been no valid marriage; if it did so, then there was no citizenship conferred on anyone, and hence no "naturalization." We find nothing in section 1451 or in the cited cases which prevents the government from attacking the validity of the marriage.

2. The validity of the "marriage" of the defendant's mother.

At trial, the government took the position that the jury had evidence before it on the basis of which it could conclude that the presumption of validity which attaches to a ceremonial marriage had been overcome on either of two theories. First, it asked the court to instruct the jury that it should conclude that the defendant was not a citizen if it found that Cianciulli had a wife living at the time of his marriage to Maria Sacco, and that it made no difference whether or not Maria Sacco was ignorant of the impediment; the marriage was "void" and not merely "voidable" in Massachusetts. Second, the government asked that the jury be instructed to conclude that the defendant was an alien if it found that Maria Sacco and Cianciulli had married solely for the collateral purpose of legitimating their daughter and with no intention of assuming the relationship of husband and wife.

The defendant's trial counsel objected to the instructions based on both theories, but the trial court gave the instruction set out in the margin.³ The jury was instructed in the alternative and may have arrived at its conclusion that the defendant was an alien by either of the two routes permitted by the instruction. There was a general verdict, so that an error in either alternative would normally require reversal. We cannot tell which ground the jury may have relied upon.

However, defendant's appellate counsel does not argue that the district court erred in allowing the jury to conclude that the defendant was an alien on the second ground. He does include in his list of issues on appeal: "Whether the court erred in instructions given and refused?" and sets out the instruction quoted above in full. But he then says:

"This was prejudicial error, since the status of the mother\'s marriage could not be attacked in attacking the defendant\'s derivative citizenship other than in the manner provided by the Immigration Code, and this was not done."

The supplementary matter filed by him after oral argument on appeal relates only to the portion of the instruction dealing with the first ground — that the marriage was bigamous.

Defendant's trial counsel did object to the instruction, originally on the ground that there was insufficient evidence before the jury on the question, and later as follows:

"there is absolutely no evidence from which this jury could find, or there is no evidence whatsoever that these people married in bad faith within the meaning of those cases cited by counsel, to wit, that they married for the purpose of avoiding the immigration and naturalization laws.

"The jury cannot speculate in the absence of evidence and the fact of the matter is they proved that Mrs. Sacco has been registered as an alien since 1940."

He also lodged an objection to the court's refusal to instruct that the purpose to legitimate an illegitimate child was a lawful and proper purpose for marriage. Because error in the instruction, as to either ground, would require reversal, we conclude that, in the interest of justice, we should consider the propriety of both of the two grounds stated in the instruction as a basis for finding that defendant is an alien.

a. Bigamous marriage.

There is evidence in the record on the basis of which the jury could have found that on the date of the marriage in question, Cianciulli had another wife living, that his marriage to her had never been dissolved by divorce or annulled, and that his wife, Liberata, lived until 1929. Moreover, there is evidence that Cianciulli married again in 1931, although the "marriage" to defendant's mother had never been dissolved.

The general rule is that...