United States v. Sing Kee

• Decision Date: 06 December 1957
• Docket Number: No. 90,Docket 24624.,90
• Citation: 250 F.2d 236
• Parties: UNITED STATES of America, Appellee, v. SING KEE, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

250 F.2d 236 (1957)

UNITED STATES of America, Appellee, v. SING KEE, Appellant.

No. 90, Docket 24624.

United States Court of Appeals Second Circuit.

Argued October 10, 1957.

Decided December 6, 1957.

Writ of Certiorari Denied March 3, 1958.

Menahem Stim, New York City (Allen S. Stim, Norman L. Kee and Curran, Mahoney, Cohn & Stim, New York City, on the brief), for appellant.

Gerard L. Goettel and Arthur B. Kramer, Asst. U. S. Attys., Southern District of New York, New York City (Paul W. Williams, U. S. Atty., Southern District of New York, New York City, on the brief), for appellee.

Before CLARK, Chief Judge, and LUMBARD and MOORE, Circuit Judges.

Writ of Certiorari Denied March 3, 1958. See 78 S.Ct. 538.

LUMBARD, Circuit Judge.

This appeal turns on whether it was error for the government to cross-examine defendant's witness Samuel Waterman to disclose that he had asserted the shield of the Fifth Amendment to avoid answering certain questions put to him before the grand jury. We hold that in the setting of this case the cross-examination was proper and accordingly we affirm the conviction.

Sing Kee appeals from a judgment of conviction and sentence entered on March 5, 1957, after a jury, presided over by Judge Richard H. Levet in the Southern District of New York during a ten day trial, found him guilty on four counts. Count 1 charged that the defendant, from 1949 until indictment in May 1956, conspired with certain named and unnamed persons to violate the Immigration Laws of the United States, 18 U.S.C.A. §§ 371, 1425 and 1542, and 8 U.S.C.A. § 1324. The other three counts charged that Sing Kee on three separate occasions, in 1951 and 1952, wilfully and knowingly made false statements in applications for passports with intent to induce and secure the issuance of passports for the use of others by stating, when he knew it to be untrue, that the applicants were the sons of named persons, 18 U.S.C.A. §§ 2, 1542 and 3238. A fifth count, which also charged a false statement in a passport application, was dismissed at the close of the government's case. The defendant was sentenced to 2½ years and fined $1,500 on each count, the prison sentences to run concurrently.

The government's proof to sustain the conviction was abundant and convincing. In summary, the evidence disclosed that Sing Kee, while operating the China Overseas Travel Service at 11 Mott Street in New York's Chinatown, was also engaged in preparing and processing passport applications for Chinese attempting to gain entry into this country by posing as sons of Chinese-American citizens. The Chinese immigration quota of 100 each year, 8 U.S.C.A. § 1151, virtually limited immigration from China to those who were derivative citizens by virtue of the American citizenship of one of their parents.

The scheme was, in general, as follows: Chinese-American citizens or alleged citizens, married in China while on visits to that country or before original entry into the United States, would make fictitious reports to the immigration authorities of sons born to them in China or would fail to report the deaths of sons who had resided in China. Immigration records would accordingly list a citizen son not actually in existence. The "slot" thus created would be sold by the "parent" for prices usually ranging from $1,000 to $1,800 to a Chinese in the United States who desired to bring over a youth comparable in age to the fictitious son. Sing Kee would prepare or would have prepared the necessary passport applications and supporting affidavits and would produce coaching books called "halgoons," from which the applicant, in Hong Kong, could obtain the necessary basic facts concerning the family of which he claimed to be a son. This information was necessary to substantiate the claim of derivative citizenship and thus enable the applicant to come to the United States as a citizen. Sing Kee usually received for his services from $400 to $600, part of which he paid to attorneys and others. In six separate cases there was evidence that Sing Kee was well aware that the "sons" were not sons. In one case it was testified that Sing Kee himself arranged to buy a slot from a father.

Several persons were involved, wittingly or unwittingly, in the transactions giving rise to the prosecution. A physician and a serologist, Doctors Liu and Sussman, determined the compatability of the blood of the alleged sons with that of their supposed parents so as to weed out the incompatibles. A brother of the defendant, Albert Kee, a friend, Wilbur Chung, and a notary public, Louis Treglia, all performed services incidental to the conspiracy. In addition, one attorney prepared affidavits, usually for $25, and another followed the course of these matters through the State Department for fees of from $25 to $75, and both attorneys transmitted the affidavits and passport applications to the appropriate authorities.

In those cases where the State Department refused to issue passports to the spurious sons, Sing Kee referred the "parents" to Samuel Waterman, an attorney who had offices at 111 Broadway in lower Manhattan. Waterman filed suits in the federal courts under § 503, Nationality Act of 1940, 54 Stat. 1171, on behalf of the "parents" for declaratory judgments that their "sons" were citizens. Between mid-1951 and December 24, 1952, the date after which such suits could no longer be brought by reason of the provisions of the Immigration and Nationality Act of 1952, § 407, 66 Stat. 281, 8 U.S.C.A. § 1101 note and 8 U.S.C.A. § 1503, 66 Stat. 273, Waterman filed between 50 and 75 such cases referred to him by Sing Kee. Among these were suits in which Hom Wing Gim, Moy Mun Sing and Chin Kung Chee were plaintiffs. Hom Wing Gim and Moy Mun Sing testified that they had sold "slots" and thereafter had made arrangements with Sing Kee in such wise that the jury could well conclude that Sing Kee knew that the passport applications which he caused to be filed in Hong Kong and the civil complaints were fraudulent and false. In the case of Chin Kung Chee the jury could well conclude that Sing Kee knew the complaint to be spurious. On cross-examination all three "fathers" were asked whether they had met and talked with their attorney Waterman. Each of them testified that they had not talked with Waterman but that they had gone to his office, had signed papers, and had dealt with persons other than Waterman.

The Defense

Sing Kee testified on his own behalf and conceded that he had assisted in bringing in many sons and attempted to bring in others. He denied knowledge of the fraudulent nature of any of the claims and that he had prepared any halgoons. He claimed that he had received only small sums for expenses, although he admitted that he had netted $23,000 in 1951 and 1952 after expenses.

Apart from character witnesses, Waterman was the only other defense witness. He testified that the information upon which he had brought the suits involving derivative citizenship claims of Chinese was given him by the fathers, that he had no knowledge of any fraudulent claim and that he had no reason to believe that Sing Kee had any such knowledge.

Waterman swore that he had met and talked with Hom Wing Gim, Moy Mun Sing and Chin Kung Chee prior to filing complaints on their behalf.¹ In this respect his testimony conflicted with theirs as they had denied meeting him.

Waterman testified on cross-examination that the fees he received through Sing Kee were deposited in his checking account in the Trust Company of North America at 115 Broadway and that he kept records of these fees on his check stubs and in the individual case files. The government was then permitted to bring out, over defense objection, that in his testimony before the grand jury Waterman had claimed his Fifth Amendment privilege not to answer questions regarding his fees and records on the ground that the answers might tend to incriminate him.²

We hold that in the setting of this case, and considering especially the entire examination of Waterman and the weight and significance of his testimony, the relevance of Waterman's grand jury claim of privilege outweighed the danger that the jury would draw from it any impressible inference regarding Sing Kee's guilt of the charges for which he was on trial.

Waterman testified to a relatively minor facet of the case, namely, whether he had or had not talked with the "fathers" before filing suit for them. If on this point the jury disbelieved the three "fathers" that, of course, would cast suspicion on their credibility as to the more important testimony concerning Sing Kee's guilty knowledge that the "sons" were spurious. Waterman's testimony did not go to the heart of the case; it merely contradicted three witnesses on a minor matter which at best could only raise a question as to their credibility.

Defendant asks us to reverse the convictions on the authority of Grunewald v. United States, 1957, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931. We do not agree that Grunewald requires reversal under the circumstances of this case. Grunewald requires an ad hoc determination by the trial judge, wherein he must balance two competing considerations in the light of all the circumstances of the case — the extent to which the prior claim of privilege affects the credibility of the witness and the possible impermissible impact on the jury occasioned by a showing of the prior plea. The trial judge did not abuse his discretion by permitting the cross-examination of Waterman.

As in Grunewald, the answers given by Waterman on cross-examination at trial were not necessarily inconsistent with the claim of the privilege before the grand jury. Although by themselves his answers to the specific questions did not tend to connect him with Sing Kee, neither were they exculpatory. Indeed, exculpatory testimony is not necessarily inconsistent with a prior plea of the Fifth Amendment. See United States v. Tomaiolo, 2 Cir....