100 F. Supp. 987 | W.D. Pa. | 1951
In this case the indictment charges that on or about November 2, 1948, the defendant, Domenick Anzalone, falsely and willfully represented himself to be a citizen of the United States; Section 911, Title 18 U.S.C.
Upon motion of the defendant the case was transferred from Pittsburgh to Erie for trial on March 27, 1951. At the trial it was earnestly contended by the defendant that the court should have directed a verdict of not guilty. This the court refused to do and the jury found the defendant guilty. He then presented (1) a motion for judgment of acquittal after verdict; (2) a motion in arrest of judgment; and (3) a motion for a new trial. These motions were duly, argued and both sides filed briefs in September. We have painstakingly analyzed the masterful and voluminous brief filed by counsel for defendant; each of the interesting questions presented has been given attention. Despite counsel’s persuasiveness and his thorough documentation of authorities, it is-the judgment of the court that the decision to submit the case to the jury was right, and that the evidence was sufficient to justify the verdict. Consequently, the motions will be denied.
The defendant has based his motions substantially on the following:
1. That the statute under which defendant was convicted is repugnant to the First, Fifth, Sixth and Tenth Amendments to the Constitution of the United States and, therefore, is unconstitutional.
3. That the evidence is insufficient to prove the corpus delicti and sustain the conviction.
Constitutionality
Defendant attacks the constitutionality of the statute as violative of the Tenth Amendment in that it is not “necessary and proper” to the carrying out of the regulation of naturalization delegated to Congress under Article 1, Section 8, clause 4 of the Constitution. He concludes, therefore, that it is solely a police power regulation reserved to the states by the Tenth Amendment. There is abundant authority sustaining the constitutionality of the statute
The contention that the statute violates the First, Fifth and Sixth Amendments is likewise without merit. Numerous courts have sustained the validity of the statute as not violative of these Amendments
The Criminal Act
The Government proved that in the General Election held November 2, 1948, in the Borough of North Belle Vernon, Westmoreland .County, the defendant signed a voter’s certificate, prescribed by Pennsylvania law.
The Government contends that this act on the part of the defendant was willful and constitutes a representation of United States citizenship, which representation is false because, as it also asserts, Anzalone is a citizen of Italy.
Obviously, the voter’s certificate does not state in so many words that a signer is a citizen of the United States. Is, then, a crime committed by an alien who willfully executes such a certificate, or does the statute require the accused to make a statement using the words' “I am a citizen of the United States” or reply affirmatively to an interrogation using those words?
It is the opinion of the court that the statement on the voter’s certificate primarily means that the declarant is a citizen of the United States, and since it does not admit of any other interpretation as to citizenship, it is within the purview of the statute. Any normal adult who makes such a representation to an election board on election day knows, or will -be held to know, the full import of that statement. We are supported in this view by the recent case of United States v. Franklin, supra, 7 Cir., 1951, 188 F.2d 182, 187, where it appears that the provisions of the Illinois election laws are similar to those of Pennsylvania. The first qualification required by the Conjtitution of Pennsylvania
The Franklin and Martinez cases are authority for the proposition that by virtue of the Constitution, election laws, and the registration affidavit, ample notice is given to an alien that United States citizenship is a primary and essential qualification of a voter and when he executes the voter’s certificate he knowingly and deliberately falsifies that fact. It is the specific provisions of the election laws in requiring the execution of a voter’s certificate which distinguishes the instant case from Fotie v. United States, 8 Cir., 1943, 137 F.2d 831 and brings it within the rule laid down in United States v. Franklin and United States v. Martinez, supra.
The cases cited by the defendant preclude conviction where an accused states he was born in “Chicago, Illinois,” United States v. Weber, 7 Cir., 1950, 185 F.2d 479; or where an alien states that “he was born in New York and that he had lived in the United States for life,” Smiley v. United States, 9 Cir., 1950, 181 F.2d 505, 506; or where the same defendant answered affirmatively the question “Are you a citizen?”; and the reasons advanced in these decisions are that such representations do not necessarily mean that the declarant represents that he is a citizen of the United States. With these cases we fully agree but do not believe they are controlling in this case where the representation of American citizenship is inherent in the act of executing a voter’s certificate.
Sufficiency of the Evidence
The contention of the defendant in this regard is that the Government
As proof of the first element, Samuel H. Mitchell testified he met the defendant in May, 1934, at Uniontown, and asked him where he was born. Defendant replied that he was born in Palermo, Italy. At the time, Mr. Mitchell was serving as assistant chief county detective of Fayette County. William J. Myers, corroborated by John C. Beck, both agents for the Federal Bureau of Investigation, stated that in August, 1949, defendant admitted to them that he had told people in 1928, in 1931, and in 1934 that he had been born in Italy. Defendant admitted on the witness stand that he had made these admissions.
Cases are cited which hold that in a criminal action the Government cannot establish the foreign birth of an accused person by his admissions alone. These cases state that foreign birth is an element of the corpus delicti and, therefore, independent proof is required. Gulotta v. United States, 8 Cir., 1940, 113 F.2d 683; Duncan v. United States, 9 Cir., 1933, 68 F.2d 136; Fotie v. United States, 8 Cir., 1943, 137 F.2d 831.
However, those cases do not rule this case. In Warszower v. United States, 1941, 312 U.S. 342, 61 S.Ct. 603, 606, 85 L.Ed. 876, it was held that “The rule requiring corroboration of confessions protects the administration of the criminal law against errors in convictions based upon untrue confessions alone. Where the inconsistent statement was made prior to the crime this danger does not exist. Therefore, we are of the view that such admissions do not need to be corroborated. They contain none of the inherent weaknesses of confessions or admissions after the fact.” (Emphasis added). The Court then distinguished the Gulotta and Duncan cases on the basis that they did not consider this difference.
But notwithstanding, the Government did introduce evidence tending to corroborate defendant’s admissions. His sister testified that she was born in Palermo, Italy; that defendant was three years younger than she; that they were young together in Italy,
Moreover, we think the jury had sufficient evidence to find that this element of the corpus delicti was proved beyond a reasonable doubt. Defendant testified that his other sister, Maria, is about three years younger than he and that she, too, was born in Italy.
In addition, the Federal Bureau of Investigation agent testified that in a 1949
To support the contention that the evidence was insufficient to prove the second element of'the corpus delicti, viz., that he was not naturalized, defendant cites Colt v. United States, 5 Cir., 1946, 158 F.2d 641.
In the instant case the Government proved that there was no record of defendant’s naturalization in the Immigration and Naturalization Office in Pittsburgh.
An order will be entered in conformity with this- opinion, refusing defendant’s motions.
. United States v. Franklin, 7 Cir., 1951, 188 F.2d 182; United States v. Tandaric, 7 Cir., 1945, 152 F.2d 3; United Slates v. Achtner, 2 Cir., 1944, 144 F.2d 49. 52; United States v. Martinez, D.C.M.D.Pa. 1947, 73 F.Supp. 403, 407; United States v. Frederick, D.C.S.D.Tex.1943, 50 F.Supp. 769, 772.
. See Hines v. Davidowitz, 1941, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581, in which the Supreme Court held that the Pennsylvania Alien Registration Act, 35 P.S. § 1801 et seq., encroached upon legislative powers constitutionally vested in the federal government.
. See Hines v. Davidowitz, supra, 812 U.S. at page 66, 61 S.Ct. at page 403, where the Supreme Court held: “And specialized regulation of the conduct of an alien before naturalization is a matter which Congress must consider in discharging' its constitutional duty ‘To establish an uniform Rule of Naturalization.’ ”
. See cases cited at footnote 1, supra.
. Act 1937, June 3, P.E.1333, art. XII, § 1203, 25 P.S. § 3043. See also The Permanent Registration Act for Boroughs, Towns and Townships, 1937, April 29, P.E. 487, § 86(f), 25 P.S. § 951-36 (f).
. Defendant urges that the false representation of citizenship, if any, was made in 1940 when he registered to vote, stated that he was born in Hammonlton, Louisiana, and took an oath that he was a citizen of the United States. Of course, tile Statute of Limitations is a bar to the prosecution for the 1940 offense. But the registration card was introduced by the Government as evidence that the defendant knew he was required to be a citizen of the United States in order to vote. It is also evidence that the representation in 1948 was intentional and not accidental. Evidence of a prior offense, though bar
. Article VIII, Section 1.
. Title 25 P.S. §§ 951-17, 18, 19, 2(k).
. The Election Code, Title 25 P.S. § 3050 (a). See also 25 P.S. § 951-36(a) et seq.
. The Election Code, Title 25 P.S. § 3043. See also 25 P.S. § 951-36 (f).
. A copy of defendant’s Italian birth certificate would have been the best evidence to prove the first point. An alleged copy of an Italian birth certificate offered by the prosecution was rejected because it clearly was not a copy of a birth certificate at all. At best it was an attempt to introduce hearsay evidence. Title 28 U. S.C. § 1741.
. In Fotie v. United States, supra, 137 F.2d at page 838, the Court held that the Warszower case was not controlling because Fotie’s admissions also contained explanations and qualifications which accompanied, the admissions when they were made. That is not true of the admissions in the instant case. ■
. See 31 C.J.S., Evidence, § 170.
. In Daeche v. United States, 2 Cir., 1918, 250 F. 566, 571, Judge Learned Hand said: “ * * * any corroborating circumstances will servo which in the judge’s opinion go to fortify the truth of the confession. Independently they need not establish the truth of the corpus delicti at all, neither beyond a reasonable doubt nor by a preponderance of proof.”
. See footnote 19, infra.
. Hammoneton was recorded on the registration . card and Hannington was admittedly stated when defendant ■ registered in 1940 for the draft.
. But see Campa v. United States, 5 Cir. 1946, 158 F.2d 643.
. A certificate of the Custodian of Records of the Central Office of Immigration and Naturalization Service which covers the entire country would have been more conclusive.
. In determining whether the evidence was sufficient to prove the corpus delicti beyond a reasonable doubt, including the 'elements that accused was born' in Italy and that he was not naturalized, it is permissible for the court to consider all of the evidence including that produced by the accused. Proof of the corpus delicti “may be supplied by accused, testifying in his own behalf”; 23 O.J.S., Criminal Law, § 916(b), page 185; § 918, page 187.