The United States of America v. Jose Diogo, Domingo Das Canas Costa and Manuel Vilanova Gonzalez

shоuld repayments the indebtedness the re- applied accrued to interest principal accordance with

mainder Salinger general Lincoln rule. 8th), (C.A. Co. Nat. Ins. Price, Lightfoot & 242; 4 Hen. A.L.R. Davis, 26 Grat. (14 Va.) Fultz v. M. Va.). report studied Master’s We have applies it the dis- find that

with care and fairly pains- formula court’s trict takingly. approve in all de- its

tails.

Affirmed. America,

The UNITED STATES of Appellee, DIOGO, Domingo Das Canas ‍‌​​‌‌‌‌‌‌​‌‌‌‌‌​​‌‌‌‌​‌​‌‌​‌​​‌​‌​‌‌​‌‌​​​​​​​​​‍Costa Gonzalez, Manuel Vilanova Defendants-Appellants.

No. Docket 27853. Appeals

United States Court of

Second Circuit.

Argued March

Decided June

WATERMAN, Judge. Circuit Appellants Diogo, Manuel Gon- Domingo Costa, alleged zalez and have entered into sham American citizens in order to non- obtain quota immigrant under 8 status U.S.C. § 1101(a) (27) (A). After a trial a twelve count the district below, court each of aliens was con- (1) falsely representing victed of Immigration authorities, violation 18 U.S.C. 1001 and that he was §§ actually entering married, and a conspiracy alleged instigator with the scheme, Gonzalez,1 others, Adria to commit the substantive offenses charged. 18 U.S.C. 371. Appellants attack the on convictions alia, grounds, the failed, inter that the evidence prove as a matter of charged, judge offenses and that the trial jury. erred in his instructions to the hold be that the convictions must revers- ed and the indictment dismissed as to appellant.' each Considering only the evidence most fa- contentions, vorable to the Government’s jury might following have found the Diogo, Portuguese facts: In citizen, the United as a entered per- temporary business visitor under mit. was March he introduced Gonzalez, Adria an American of descent, Heredia, Puerto Rican to Clara an also American citizen. At time Diogo, had inasmuch as he exceeded the stay country, in this time allotted for his deported. be Adria about to asked Morgenthau, Atty., M. Robert U. S. willing would Clara Heredia if be she (John New Dist. of Southern York W. marry Diogo he so that could remain in McEvoy,Jr., Mills, Andrew T. Asst. U. S. agreed, upon Clara the United States. counsel), appellee. Attys., for she would the assurance that receive a Gerber, City D. New York Bertrand money that no sexual sum rela- Gordon, City, (Murray New A. York would involved. tions Diogo counsel), for and Costa. Diogo understanding, Pursuant to this Wallach, City Harry (Lee New York Newark, "married” at and Clara were Pa., Harrisburg, Swartz, counsel), C. Jersey, April Shortly appellant Gonzalez. for Diogo gave ceremony Adria after CLARK, which she shared Clara. WATERMAN аnd $500 Before Judges. Thereafter, FRIENDLY, did not live with Clara Circuit conspiracy. on four She tried below counts 1. Adria convicted Gonzalez appealed conviction. her

90]; Adria and riage. did not consummate Gonzalez contacted Emma Mercado, representa- citizen, and, ac- On the basis of his American cording change regarding Emma, marital I tions “asked me if would proceedings trip (where) status, deportation Europe like to take I against Diogo reopened young will meet some man and that we get nonquota ultimately qualify married found and that the will future rosy me, citi- spouse American more I status as the that wouldn’t have January 4, to work obtained zen. Clara more.” It is conceded On Diogo. subsequently a Mexican divorce from Government thаt Emma agreed good marry in all faith to Costa. Gonzalez, February 9,1960, Manuel On money paid No in was mentioned or con- citizen, Spanish United entered the marriage sideration for the and there temporary permit. Short- States under suggestion any never was that the mar- (who ly thereafter, Adria Gonzalez riage would not be consummated or that arranged again Manuel) not related to contemplation it would be entered into in “marriage” permit alien for a of a part divorce. the latter of 1957 Yvette remain in United States. Lisbon, Portugal, Emma went to where Heredia, Garces, daughter Clara she met Costa and where she remained agreed marry purpose, for this Manuel for some two months while her visa and that she would passport being procеss- documents were cooperation she paid and that for her couple ed. The were married in Lisbon together as and Manuel would not live January 21, 1958, marriage on and the marriage ceremony man and wife. Their was consummated sexual intercourse. York, Queens, place on Feb- took Shortly thereafter Emma returned to the Thereafter, ruary 24, re- 1960. Yvette States; Costa, having United received a Manuel, couple from ceived but $500 immigrant non-quota visa as Emma’s together nor neither lived consummated spouse, country August entered this marriage. 28, 1960, April On Gon- May 10, 1960, 1958. On Costa was permanent applied resi- to become zalez granted a divorce from Emma in the New virtue of his dent York courts. application was and his American citizen Upоn these .facts we have doubt no granted. Alabama obtained an Yvette appellants may deportable from the August of 1961. divorce 1251(a) United under States 8 U.S.C. §§ Domingo Appellant is a Portu- Costa (1) 1251(c).2 This, however, or was a guese brother and the citizen prosecution, deportation criminal not a Diogo. Costa was On November proceeding. deported States hav- from the United ing overstayed permit turn, therefore, ques a limited to enter country purportedly in tion whether failed, while he was Government has prove In the summer of as a matter of to Venezuela. transit violations of 1251(c) Attorney an alien is de § 8 U.S.C. tion Under General that he or portable if she failed or refused to fulfill his or agreement opin- her marital which in the any “(1) he or she оbtains hereafter Attorney ion of the General was here- entry im- United States with an into the purpose procuring after made for the pro- migrant or other documentation visa entry immigrant.” her his or as an entered basis of a on the cured years prior 1251(a) provides to such 8 two U.S.O. § less than into which, deportable entry within two alien and alien is subsequent entry “(1) entry years to an of the alien the time of was within judicially shall be States one or more of the the United classes of aliens ex- terminated, existing such unless alien cludable or law annulled the time entry;” satisfaction of such establish shall Attorney 1182(a) (21), that such 8 § General Under U.S.O. each appellant of evad- contracted excludable from the United any provisions entry ing at the time of States if he was nоt, fact, spouse appears laws; to the satisfac- “the or a citizen of 902 tions, ap- or uses false makes provisions or the criminal writing knowing document

pellants U.S.C. or § 18 convicted: stand any false, generally), U. same fictitious to contain (false statements entry, applica- or fraudulent statement or (false statement S.C. $10,000 etc.), visa, shall be fined not more than and U.S.C. § tion for imprisoned to de- or years, not more than five (conspiracy offense to commit statutory States). or both.” The fraud United pattern to con- sufficient that acts reveals It is well established that this section the relevant clause stitute violation of encompasses proscription within its ‍‌​​‌‌‌‌‌‌​‌‌‌‌‌​​‌‌‌‌​‌​‌‌​‌​​‌​‌​‌‌​‌‌​​​​​​​​​‍also constitute 1546 will U.S.C. § offenses, distinct concealment a mate Moreover, violation of 18 U.S.C. § representations. rial fact and Unit suggestion no there is Uram, (2 ed States 148 F.2d alleged conspiracies failed Kenny, Cir.1945); United objective, supposed com- achieve their Cir.1956), denied, F.2d 128 cert. charg- offenses mission of the substantive U.S. 1 L.Ed.2d 77 S.Ct. therefore, clear, counts ed. It is Lange, F.Supp. United States v. charging in the indictment violations (S.D.N.Y.1955). objective of both constitute the corner- 18 U.S.C. same, offenses the to create or If, appel- prosecutions. stone of these as part foster on the of a Government contend, failed has the Government lants agency misapprehension of the true provision, prove their to violations of state of affairs. Cf. Lutwak v. United counts indict- on all convictions States, 604, 611-612, 344 U.S. 73 S.Ct. 481, (1953). must fall. ment What must L.Ed. proved offensе, be ever, establish each to how U.S.C., 1001of Title Section significantly. rep differs False provides: resentations, perjury, like common law require proof falsity; entries 1001. Statements or of actual conceal “§ generally requires proof ment of wilful nondis by “trick, closure means of a scheme or any “Whoever, in within matter device.” any department jurisdiction of ' agency by of the United or States It is conceded the Government that willfully falsifies, knowingly and the basic with substantive offense trick, up any present charges or covers conceals indictment each of fact, scheme, appellants making a material or device is that of false any false, respect or fictitious or makes to mari- with his representa- or statements tal was sо fraudulent status.4 The instructed respect proper falsity States,” within the ment’s evidence with to the the United phrase interpretation under of that of residence is at equivocal. 9, note infra. law. See best is established that Dio- apartment go spent some time Clara’s knowingly kept makes oath 3. under his clothes there. “Whoever that he Clara respect any spent with to a ma- false statement denied lie had ever trial that affidavit, any application, night apartment, although or fact in her terial required by immigra- prior testimony document sworn before the Immi- other prescribed regulations gration there- or she had stated Dio- tion laws Service that any ap- knowingly presents go under, such or in her house for “had resided one or affidavit, marriagе. plication, or . other document two weeks” after charges containing false statement' —(cid:127) such Count 4 of the indictment Dio- * * * imprisoned falsely go representing or be fined with “Shall he had years, years” prior or five both.” known “for about more than Clara marrying Again, her. evidence is Moreover, 2, conflicting. sug- 4 of there is 3 and no Counts Diogo’s gestion period Diogo charge false with statements prior concerning acquaintance Here- Clara’s to their mar- his residence Clara riage ceremony dia, material false concern- could be as statements as well immigrant ing his to her. issue his status The Govern- understanding put thus, brought, will end We are below. purpose it as soon itas has served its question the Government whether deceive,” they each nevеr married at were the statements established that appellant all. Lutwak regarding status v. United U.S. his marital 610-611, 485-486; 73 S.Ct. at United false, these statements were Rubenstein, at 918- v. were known made. at the time Appellants that neither maintain Even the strict standards of Costa, lim nor secret reservations validity which the Government would and Gon ited adopt have us as determinative of this respective spouses, zalez married their prosecution, criminal renders invalid Domingo Costa and Emma Mercado was York the domestic law of New relations represented valid at the time Costa jurisdictions. American of most other immigration authorities that he was the Law, Relations §§ See N.Y. Domestic spouse anof American citizen. Far from Barker, Barker Misc. having entered into the “with Gregg (Suр.Ct.1914); N.Y.S. 811 put will Gregg, 133 Misc. N.Y.S. pur end to soon as it has served its Delfino, (Sup.Ct.1928); 35 N. Delfino pose deceive,” Emma married Costa (Sup.Ct.1942); Y.S.2d 693 Erickson v. good knowledge all faith and with no Erickson, (Sup.Ct. 48 N.Y.S.2d 588 Therefore, his ulterior motives. there 1944); Schibi, 136 Schibi v. Conn. having representation, been no false (1949); 69 A.2d 14 A.L.R.2d 620 Costa's conviction must be reversed and Hanson, N. Hanson v. 287 Mass. the indictment dismissed as to him. 673, (1934); Campbell E. 701 A.L.R. By applying the same strict standards 497, Moore, v. 189 S.C. S.E.2d 784 marriage validity, of the Government al- Ill.App. (1939); DeVries, 195 v. DeVries so contends that the convictions of (1915); 20 U. 14 A.L.R.2d Note and Gonzalezmust be affirmed. Whether (1953). Chi.L.Rev. 710 dispositive Rubenstein and Lutwak are deny the The Government does not presented of by appeals, the issues validity appellants’ mar “formal” of however, questions raises difficult of in- riages. Relying upon Lutwak United v. terpretation. 604, 481, L. U.S. 73 S.Ct. Rubenstein, In (1953) supra, United States Ru Ed. 593 and United benstein, appellant, Cir.1945), attorney, F.2d cert. New York al- denied, leged 90 L. arranged marriage U.S. S.Ct. a sham however, Ed. the con Government between an alien and an American citizen marriages validity evading immigration tends that the of purposes the for of the is state law immaterial to these upon laws. The indictment he was argues prosecutions. closely The paralleled Government convicted that in the that, purposes pros bar, a criminal of case at save that there concealment one, persons, fact, ecution such as this if two of a material as well as affirmative part representations, charged as effort to im an circumvent the false agree migration marriage laws, objective conspira- to a an been “only representing appeal for the sake it as torial scheme. On Rubenstein allegedly to the outside world and the with the such claimed that sham themselves, representations were, offered

marital the the evidence Government’s clearly establishes that true. own witness both up charges indictment Dom- Emma took residence in Count 6 of the Costa and falsely shortly ingo representing Adria Costa with home of Gonzalez after country. “place in arrival this to which was destined Costa’s Whether quarters couple shared the United States” Emma the same Mercado’s dispute. City, home remains in home New York as well as that the Gonzalez weight he was married to Emma. The “We do not believe that thе valid- law under state was valid ity marriages respect it were is No material. being prosecuted one affirmance is for an of- This court rested true. against fense the marital relation. conviction Rubenstein’s grounds: (1) consider the cere- charge only part conspir- monies acy was immaterial facts, but to defraud of material the United States and concealment nullity fact, against marriage was, to commit Unit- that the offenses requirements mutual ed In the under traditional States. circumstances case, in the of contract.5 the ceremonies were consent law step in the fraudulent scheme Lutwak, United States parties actions taken problem was (7 Cir.1952) same 748 presented. conspiracy. ‍‌​​‌‌‌‌‌‌​‌‌‌‌‌​​‌‌‌‌​‌​‌‌​‌​​‌​‌​‌‌​‌‌​​​​​​​​​‍By directing in the War charg- again The spousеs’ Brides Act that ‘alien affirmative ed both a concealment citizen war ad- veterans should be alleged- concerning Congress country, mitted into this again marriages. ly Defendants sham possible intended to for make it vet- pur- argued appeal limited that their erans who had married aliens to have Affirming marriages pose valid. join them in this coun- families did conviction, Circuit the Seventh try long delay without the involved materiality deny of defendants’ not claims, qualifying proper under the im- authority of held, on the but migration Congress quota. not did marriages Rubenstein, were void that the easy provide intend to aliens with 753-754, on purposes. all 195 F.2d circumventing quota means of rehearing petition 761-762. system by fake in which Supreme ground upon parties neither of the ever intended judgment of thе Sev- affirmed the Court to enter the marital relation- Circuit, 73 S.Ct. ; U.S. ship petitioners enth believed entirely A clear. concealing 97 L.Ed. evidenced their care in opinion, reading Minton’s fair however, Justice from the authorities reveals, believe, de- that the we the ostensible husbands agree- their of separate immediately concealment fendants’ wives were to ground relied separate the entry country ments upon after their into this of the belief Court was together that the and and were never to live as mar- the immaterial whether it was that riages husband and wife. The common un- derstanding marriage, were valid. of a which Congress must have had in mind trial] contended [at “Petitioners provision it when made for ‘alien regardless that, intentions of the spouses’ Aсt, in the War Brides cere- parties time the at the the monies, parties the under- ceremonies that the the fact together to establish a taken life performed sufficient were assume certain validity duties and ob- of the establish ligations. riages, until the Government was not the at least Such case invalidity might under French proved here, or so the reason- law. ably Thus, found. when one

[******] the aliens stated that he was in between cases not the distinction en contract addition to jest, relationship, volving into in and “sham” or court tered “lim marital purposes” marriages, Terry, McClurg and for 21 N.J. ited a sum relied mary differing Eq. treatment it was held that where each, generally, annulling Note, granted see mar courts U. would decree (1953); jest ceremony riage as a Chic.L.Rev. A.L.R.2d entered into joy during ride, of a dare result parties For never cohabited. where element, ertheless, long explain falsity married, omitted to rep- prosecution of a for false relation- criminal true his marital nature of ship, did, respect marital in- resentations with status, to one’s statement to, carry implications tended we hold pros- not in aof state of which were will be material to such a facts 610-612, return, thus, question fact ecution. true.” U.S. at sup- (Emphasis whether S.Ct. at 485-486. the Diogo plied.) made and Gonzalezwere literal- ly by appellants false and were known pas quoted We do not read the be false at the time made to were sage suggest prosecution for immigration authorities. grounded up can be undeniable, believe, It is nei- explаnation, we on the omission of an “implica questions may ther of omission carries with it be answered tions a state of facts which were meaning until the of the statements * * * To so hold would distort true.” issue has been When ascertained. language assimi the statute and “spouse claimed to be the of” or to separate late the offense of concealment citizen, “married to” an American each represen into the different one of false purported legal appellant to state the solely similarity of tations because of a significance of a fact situation. Each prohibited objectives. representation ambiguous, was rendered however, by quite understandable the Su Nor do we understand appellants ju- specify failure of preme a federal Court to have established legal risdiction to which their conclusions marriage validity by standard of Assuming referred. York that New marriage relationships state-created domestic relations law is as to be reviewed and reassessed be, claim it to the mere addition aof Congress may federal courts. Of course parenthetical qualification —“under adopt a federal bona standard of fides clearly York law”—would have rendered denying immigra purpose of the limited appellants’ representa- blameless marital persons priorities to tion whose mar immigration By tions to the authorities. riages do not meet that standard. That token, the same the statement that standard, Congressional embodiеd customary married were “in the sense “marriage” of the terms by Congress” the term as intended would “spouse” appear as those terms in the appellants culpable, have rendered as- is, course, statutes suming apprised apply relevant standard deportation proceedings exclusion or proper interpretation Congressional brought Therefore, problem intent. the of ascer- statutory provisions appropriate the to taining the law under the which proceedings. Congress What those appellants’ marriage of is to be deter- by “marriage” the term meant is also prosecution mined in a federal for false relevant, Lutwak, as indicated in the to representations, not, is in the first in- determination, purposes аof conceal stance, an issue of either federal in- prosecution, immigrant ment whether an tramural or federal conflict of laws doc- immigration from the concealed has au question, rather, trine. proper interpretation is a a material fact about thorities his mari appellants’ state- If, Supreme as the status. Court tal has ments. Congress indicated, grant intended to im only migration priorities persons construing to In these state marriages conformed to whose the com ments it is well established that we must understanding meaning relationship, to the .mon look ap intended the pattern pellants themselves, from the “normal” deviation rather than to the relationship interpretation a material is fact statements priority. application for such a Nev- authorities did in fact meaning make, interpretation he ascribed to the words or even might reasonably phrases used. have the authorities Lattimore, 127 made. v. United States ****** per F.Supp. (D.C.D.C.1955), aff’d proper perjury “While the test court, equally 98 U. divided curiam an subjective, insofar as it is based (D.C.Cir.); App.D.C. F.2d 334 S. understanding wit- Seymour v. F.2d United regarding ness himself the words (8 Cir.1935); 582-584, 99 A.L.R. used, prosecution that he a criminal U.S.App. Lattimore, 94 States United v. objective must have certain stand- (D.C.Cir. 957-959 D.C. 215 F.2d perjury ards. Most often in cases 1954) (concurring opinion); United cf. objective not hard to standard is Slutzky, (3 Cir. F.2d 504 v. States by; come what the accused consider- 1935); Hautau, 43 F. United States v. ed his statements to not in mean is Supp. (D.C.N.J.1942); United phrases issue since the in- or words Rose, 623 Cir. v. States 1954); clear, acceрted volved one Commonwealth, Weiner v. meaning. recognized Here, (1927).6 Ky. 455, Under S.W. phrase ‘follower the Communist person not an 1001 a does peril. 18 U.S.C. § varying subject interpreta- line’ is to Thus, questions his at swer official accept- universally tions. It has no Lattimore, supra, the v. in United States ed definition. The has Government having charged per defendant jured way defined it in one and seeks congressional com himself before impute its definition to the defend- “fol that he was a mittee when he denied ant. Defendant has declined “pro line” or the Communist lower offering it, adopt his definition of Dis great interests.” moter Communist not own. It would ingenuity necessitate up missing think dif- as unconstitu definitions fering from vague those offered either tionally stated: the court By or Government defendant. jury per- “For to conclude groundless surmise could committed, fact, jury been jury determine which de- definition determine what words must F.Supp. mind.” fendant had in time to the defendant meant testimony, and them as his he offered regarding Statements marital status the defendant did conclude that then course, not, possess do ambiguity the ineluctable truth at that time believe not phrase according of such a “follower testimony of such seating perjury it as such the outside world prosecutions for false will problem and with the put inter- frequent- ambiguous it as soon as it has served an end to preting statements deceive.” if its Even rea. ly merged mens issue of “marriage” applicable Slutzky, supra; were definition States See United Hautau, supra; contexts —and we do not believe all United States United follow, supra. does not as the Rose, that may it is —it If a defendant has ap- assume, statement, intended, by been led to assert “marriages” pellants knew proposition which the Government repre- “only false, for the sake of proved entered lie then cannot to be has world, senting course, such to the outside ordinarily, them as be said have of they etc.,” knew false- also that it was a “knowingly” a false statement. uttered represent distinguish problem themselves to the hood fail But ambiguous The conclusion re- world. latter interpreting outside statement of premise appel- quires required ascertaining additional that of from Department type rea, may what the U. S. knew lants mens contribute marriage jury to be a considered in- Justice find which we сonfusion representations they charged made their when The below. structions required say persons This were married. two that premise is false to it ignored totally agreed court married if jury. repre- “only in its instructions below for sake of

9Q7 Nevertheless, 1101(a) (27) enactment of 8 U.S.C. line.” § of the Communist (A) significant rela- in mind. variations it is true that are found marital status tive to one’s Under the law of New York several relations laws the domestic marriage may a defective be either void occasionally, nations, as states marriages or voidable. Voidable are- here, ‍‌​​‌‌‌‌‌‌​‌‌‌‌‌​​‌‌‌‌​‌​‌‌​‌​​‌​‌​‌‌​‌‌​​​​​​​​​‍impossible to determine purposes valid for all until annulled a. represen- falsity a marital the truth or competent jurisdiction. court of N. Y. juris- specification tation absent Law, 7; Domestic Relations Houle v. § representa- diction under whose laws Houle, 100 Misc. 166 N.Y.S. tion is to made. (Sup.Ct.1917); Estate, In re Martinez’s (Sup.Ct.1920); 181 N.Y.S. 907 Mat suggest do not Matturro, turro v. 111 N.Y.S.2d accept the mean court must as conclusive (Sup.Ct.1952). absolutely Parties to an ing defendant, prosecution which a in a marriage may procure judicial void this, such ascribes to the words he as nullity, declaration of N.Y.Civil Prac applied, If rule to be used. every person this were the Act, 1132, “marriage” tice but as their § perjury accused of or false contemplation never existed in representations could assert his under change such a declaration no effects standing way such a of the words used in the unmarried persons. status the two preclude possibility of convic as to Houle, supra. Houlе v. Lattimore, tion. United States v. 127 F. prosecution Supp. In a for n. 21. only provisions of the New York perjury representation, or false absent absolutely statutes marriage- void a ambiguity of kind fundamental found are those contained in Sections 6 and Lattimore, question of what a de 11 of the Domestic Relations Law. Mat- rep meant when he made his fendant Matturro, supra. turro v. Sections and! normally jury. resentation will be for the 6 concern bigamous incestuous Seymour 577, 99 v. United riages. provides Section 11 for the in- Cir.1935). Where, here, A.L.R. 880 as aof not solemnized as however, presented no evidence is on the required. therein It is uncertain wheth- question, upon it is incumbent the Gov provisions encompass er grounds all negative any ernment reasonable in voidity (either as a matter of sub- terpretation that would make the defend stantive law or conferring factually statement ant’s correct. jurisdiction upon the state). courts See, g., appellant e. N.Y. asserts that Domestic Here their mari- Law, Relations 10; Ream, were tal true under the Davidson v. 89,161 97 Misc. 73, 86-90 (Sup.Ct.1916), law of York. The N.Y.S. New aff’d, 178 initially App.Div. 362, both Gonzalez were Gregg N.Y.S. Gregg, arranged in New York. Gonzalez’smar- Misc. N.Y.S. riage jurisdiction. (Sup.Ct.1928). was celebrated in that No case has been dis- covered, however, Both were domiciliaries which the New York York at the time the courts have issued a declaration of nul- distinguished lity, grant made to the were author- from the annulment, suppose, as reasonable to ities. therefore, because of the absence of apрellants’ contractual statements intent or par- because both purposes negating made with the New ties York law in with limited mind as that were made acts entered with the into a formal re- Congressional lationship.7 prompted Indeed, intent that the New York (Sup.Ct.1952). reveals but research N.Y.S.2d Our instances each, operation in which the New York courts of the doctrine of “re- granted back,” an annulment facts similar lation the decree of annulment was bar, Dorgeloh Murtha, marriage to those at v. 92 held to render . void ab (Sup.Ct.1915) support 156 N.Y.S. 181 Misc. initio. These cases do not the- Amsden, appellants’’ Amsden v. 202 Misc. and Government’s contention that 908 allegedly marriage repeatedly living. held mer

courts The ‘mar- is riage’ purpose” “sham” “limited referred to in the defеnse is voidable, by judicial to be nor thus valid until neither void annulled de- only by 223-224). of di- to be dissolvable a decree cree.” N.Y.S. at ding ceremony with the "that fendant ‘“farce and tiff’s leged vorce.8 voidity to cohabit by way ing N.Y.S. 221 spouse agreements private reservations effect. through a do Relations made in taches riages, obligations riages son whose * ^[******] “ * * * “The “In “Sections maintain a contractual most Gregg support, sufficiently that obligations counterclaim, of defense and would resulted are void this state an action for include would parties give with other women. ***** regard (Sup.Ct.1928), averments of mockery” may marriage ceremony. Law, husband those contracted under the between not contribute and that he would an annulment parties’ 5 and 6 of the Gregg, the defendant relationship by private agreed even not establish ‍‌​​‌‌‌‌‌‌​‌‌‌‌‌​​‌‌‌‌​‌​‌‌​‌​​‌​‌​‌‌​‌‌​​​​​​​​​‍here only that would intention, defining to their cohabit, vary jf the court or wife 133 Misc. concededly incestuous themselves. marriage. separation they may have counterclaim, the marital status parties go the law the defense the absence or diminish the defendant jjg assumed French and of void action. respective through that Domestic by a for- stated: Dismiss- right be free went the de- to a mar- set Any He per- plain- at- wed- no 231 up, al- marriage ymous, 49 N.Y.S.2d 314 legitimizing Denying and that the And died at birth. home, would be much better there living together consummated has 589-590. posely and them and In Erickson v. denied. curred, they the law about. those cases provides cult reluctantly does not some here sibly annulment, (Sup.Ct.1942); “In view оf the fact that the child a (Sup.Ct.1944) see wiped died; marriage solely plaintiff’s application annulments are relationship legal presented.” 48 N.Y.S.2d at statutes we the wife’s uncontested Delfino would take permit this no * * * If a fraud governing these conditions therefor, made to include the case parties a child which agree that out. where the law reach the conclusion that termination to hope intentionally are the It was understood that the the court stated: by cohabitation; public generally of this Erickson, marriage be However, could be had. Delfino, 35 Anonymous would never cohabit. and no ** creating family place only half-marriage parties unfortunate for only State parties (Sup.Ct.1944); parties * * * brought specifically granted subsеquently * was never stretching 48 N.Y.S.2d who must be divorces can N.Y.S.2d in form petition entered diffi- pur- ever pos- Anon- oc- it it Y. however, under N. Domestic Re absolutely void, voidable to be marriages were 7(4) Law, the instance of suggestion lations no contain See, g., party. e. Pastore v. innocent the Pastore, parties rela- defective N.Y.S.2d Misc. disregarded might tionships Ernst, (Sup.Ct.1950); Ernst v. 32 N.Y.S. relationships an- decree of absent (Sup.Ct.1941); Miodownik v. Mio competent 2d downik, a court issued nulment App.Div. 851, N.Y.S.2d jurisdiction. ; Lederkremer v. Lederkrem (Sup. er, N.Y.S.2d Misc. purpose” exists the “limited Where Ct.1940). parties one of the mind of the marriage ordinarily held Y.S. neither lity rule, riages tus were made.9 Barker pellants’ trial pleading false sufficient to burden spouses the assuming the Government’s even riages Government appellants’ concealment, majority’s position jury at the trial on the authorities judge representations, were void at the there of there could secure declarations appellants nor their The Government on this (Sup.Ct.1914). interests, respect the New Barker, convictions hold, failed proof has been a concerning are not called theory the variance between proving failed, as we now to their contention below, did not is the short entirely York courts. Misc. we should in Lutwak. cited of the case.10 on a time failure to stated to sustain that the prejudice alleged argues that marital do, above, is that appellants’ answer to theory matter respective that the upon to instruct basis of nul 151 N. affirm prove Even It is mar mar sta ap its mount to motives in New York justify, victions for concealment of material trial concealment of these material fact. “trick, scheme or device” to achieve such Much less would it establish the use of a Findings not? Were abling marriages, riages ?’ case.” try, then, find and believe from the evidence before selves the marriages duty objective. ^[******] “So that judge, however, If solely an alien to you marital say such those proof law, proof themselves, appellants’ con- fraudulent not that is the whole case course, question, * * marriages by your of willful and genuine, relied get would not be tanta- *. suggested by would of their ulterior genuine into this coun- would If verdict or ‘Were were sham but entered you clearly the truth should knowing of en- in the these your facts. not jury repeatedly instructed as The judgment The court district is follows: reversed and the cause is remanded with instructions “So, indictment, said, that the indictment be dis- Ias is appellants. missed as to all you and the sole and before gather question, Ias from this in- Judge CLARK, (dissenting). Circuit dictment, testimony from all the go you you perceive why case for when this your I am unable to case you juryroom, your- governed by will ask precisely Lutwak v. Jersey Although lidity applied New authorities to be are different. In a York, prosecution representation numerous as those of New not as false validity applied be de conclusion would no different standard to be to a representation is, if we were to con manded as to marital in the first in- Jersey controlling stance, proper law to sider determined inter- g., pretation Cf. e. Woodward v. Heichel his case. of the statement itself. N.J.Eq. 253, beck, applied 128 A. Lind standard of to be in an Lindquist, N.J.Eq. quist deportation proceeding, by exclusion (1941). contrast, proper A.2d 325 is determined holding not, course, estop interpretation would Our federal deportation in collateral the Government proceedings laws. On latter issue United States claiming appel- Lutwak, supra, controlling. from proof were invalid. The lants’ required suggest, to establish that the aliens are 10. It would be anomalous country illegally course, in this is different from that defense counsel should have required objected to convict defendants in a to the failure of the trial court making repre- case criminal to instruct on the elements of an requires only charged sentations substantial offense which was neither in the support finding deporta- by government evidence indictment nor mentioned bility. Moreover, during the standards of va- counsel the trial. may appellants 604, 481, as to that had United 73 S.Ct. 344 U.S. enough 593, de knew about the law by own earlier federal our L.Ed. Rubenstein, deportation quite 2 of to make an invest- cision of States v. United in an Cir., 915, U.S. ment denied 326 endeavor to it. 151 F.2d cert. evade 462, cited with 90 L.Ed. S.Ct. excepted appellant I Costa from the approval fact the more In Lutwak. above statement because case is some- my protest there some brothers what different from others. In his cases, (unclear) distinction between case the tends evidence to show that the the tity. iden more disclose the essential procured woman he went mar- into the Lutwak; dissented, justices three good riage knowledge faith, without my making essentially point same intent, of his and that the was namely, proof stress, was brothers consummated. How far reserva- inner lacking marriages were invalid only party tions toas intent of one to a made. or at where least voidable marriage may be to show false used a majority expressly But held the six-man immigration advantages claim to secure that the problem. greatly is a I would not be things Among immaterial. other Justice accept troubled to riage view mar- that a said, pages Minton at U.S. partially thus at least valid should “Thus, page at 486: S.Ct. inquired not be into further as a matter when one that he was of the aliens stated public policy. examining But the ra- married, explain the true omitted to tionale of the Lutwak and Rubenstein relationship, his nature of his marital cases, deportee’s I find stress carry did, to, statement intended and was intent; although hence the ease seems implications with it of facts state doubt, not free from I am constrained to myWhy which were not in fact true.” Costa, too, properly conclude that quote apparent ap brothers this with convicted the evidence. directly proval clear, is not since it is so majority opinion question raises applicable present to our case. charge adequacy as to the IWhile cannot discover what distinc- quoting couple passages of brief out my advancing, are-actually tion brothers context. dispose It is not fair thus to gather attempting I fragmentize are very long charge coming at the end look for the facts as to days’ several trial where the issue toas small differences pretended defendants’ intent ap- made these defendants from those riages precise. had been made clear and They pearing in the cases. earlier Against background charge this successful; differences as immaterial error, prejudicial seems to me without trifling, best are as well any juror least so far as concerns with a on the evidence. Here intelligence. modicum of and Gonzalezhired defendant Adria Gon- procure zalez to for them women Gonzalez, who is to noted that Adria through weddings procuress hire went sham pivot of the women and the were never consummated and appellants conspiracy revolved, about whom the immigration au- fooled the years’ convicted and to seven sentenced imprisonment thorities as to their marital status a.nd appealed. and has not So deportation off until facts my staved the true she must do time for a crime which brought investigation. out on What hold brothers does not exist. But at precise testimony obviously more knowingly making validated; rate her business has been against may expected others, too, claim and it imagined! government up occupation, And could be take now that a attempt gap on this basis the laborious real laws has York determine law been found at hand for convenient ex- point; ploitation. whatever is without ideas

Case Details

Case Name: The United States of America v. Jose Diogo, Domingo Das Canas Costa and Manuel Vilanova Gonzalez

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 28, 1963

Citation: 320 F.2d 898

Docket Number: 27853_1

Court Abbreviation: 2d Cir.