United States v. Roberto Flores-Rodriguez

by proffered by values for consideration have been received the Government’s only assessing compensation, witnesses, jury just bases, on the two differed the $750, parcels to consti- the small the two amount from found $450 integrated or one farm unit such estimates of as- tute an “involve the use sumptions, unlikely that tract. make it appraisal the will value true [s] reflect dealing point, the Su like guess nicety”, are, best, “at States, Court, preme Sharpe v. United by persons” (pages informed 374 and 114, 117, 341, 354, 24 said: 191 U.S. S.Ct. U.S., page S.Ct., 375 of 317 of 63 the leave as to “If the evidence were jury and, moreover, case), Miller the the of some doubt whether it a matter upon inspected physically went the plaintiff in error were land owned the premises and saw themselves what separate separated tract or into three one the situation was. tracts, proper it would be distinct Though jury question the was correct to leave that the Government ” legal position took, has which it it prejudice, shown no in the circumstances here, we be Upon evidence the case, by of this the District Court’s ac- differ could minds reasonable lieve that tion, judgment appealed parcels constituted these to whether be, hereby, must and is affirmed. tracts, the and that two tract one Affirmed, say, mat properly aas not could Court sep law, Tract A—100E that ter the tract, have received should arate sub and should have proffered evidence jury, that the the issue the mitted error, as contended do so was

failure to

by the Government. do believe either not

But we question was fair precise here raised the presented ly properly the District America, UNITED STATES of Court, has the Government Appellee, prejudiced it. shown that the error noted counsel for to be FLORES-RODRIGUEZ, Roberto Government, when Court asked Defendant-Appellant. proof, purpose “state of the offer” of No. Docket 24097. “give replied purpose was to Appeals States Court of opinion market this witness’ of the fair Second Circuit. A-100E) (tract 49.2 value acres Argued June imposition after before and Decided Oct. Thus, easement.” did Government purpose it not offer the evidence for the now contends should have re- been ceived, and trial court admitted all bearing upon evidence offered the stated showing

purpose of “the fair market (tract A-100E)

value of 49.2 acres imposition

before after the

easement.” do not believe that the Gov rejection

ernment has shown that the proffered prejudiced evidence it— certainly way— substantial the estimates of

because before and after

partment for a violation of Section (8), Law, New York Penal McK.Consol. Laws, provides: c. Disorderly conduct: “§ “Any pro- with intent to peace, or voke a breach of the where- by peace a breach be oc- any casioned, commits of follow- ing have acts deemed to shall be disorderly committed the offense of conduct Frequents “8. or loiters about Atty., Williams, Paul W. U. S. any soliciting public place men for York, Southern York of New New Dist. committing purpose of a crime City (Jerome Londin, S. J. Asst. U. against nature or other lewdness”. Atty., counsel), City, for New York arresting complaint The officer’ssworn appellee. part: stated City Ehrlich, York New Marchetti & “ * * * 17, September On City, Marchetti, (Joseph New York A. Duffy Square. 1950 at men’s toilet at counsel), defendant-appellant. for Avenue, 47th Street and 7th FRANK, * HINCKS * * Before vicinity (about P.M.) 5:30 Judges. WATERMAN, Circuit pur- the Defendant did loiter for the inducing pose of others to commit Judge. WATERMAN, Circuit acts, lewd and indecent from about charged that, count indictment A one did 5 to 5:30 o’clockP.M. move from 1203 and U.S.C.A. § in violation others, several did one urinal 1621, defendant committed exposed 18 U.S.C. § manipulate and naked stating signed by falsely in a perjury wit, person, penis, parts his his Immigration Application for and sworn others, and motion to the view of did Havana, Registration in and Alien Visa of de- with his head direction not been arrested he had Cuba ponent and several others in said any of- for or convicted indicted toilet.” fense. Mag City was tried in the Defendant by jury trial defendant waived The City New York on istrate’s Court of Judge Aft- Cashin. tried was before 18, guilty. September 1950 and found judgment trial, moved for a defendant er September 25, 1950 he was sen On judge mo- acquittal. denied the of tion, days. The execution of the tenced to guilty, and entered defendant found suspended and was defendant sentence sentencing conviction, de- judgment of a permitted return to Cuba. On was impris- a of six months’ to term fendant 7, 1952, presented defendant November appeals. Defendant onment. the American Consulate in himself at Cuba, Havana, there executed an the trial of was evidence at There Immigration 1949, following 29, Application de- On June Visa facts: Registration Cuba, in order fendant, was admit- to obtain a citizen Alien 29-day permanent admission to as a the United United States ted July application on this defendant He Cuba States. returned visitor. “ ** * I next ar Defendant entered the stated not been 27, 1949. again for, July 28, 1950, of, or indicted rested convicted States on United * * *” later, Fifty-one days applica 29-day offense visitor. 1950, days 17, subscribed and September or 22 after tion was sworn to before on supposed to have left the United Vice-Consul States he by America, Cuba, 7, States, was arrested an of- November defendant by City then visaed York Police De- It was of the New Vice-Consul ficer immigration apply became De- falsity visa. It does not where the fendant, using visa, documentary this- entered the oath established 19, 1952, as testimony springing

United. on November evidence or States written properly qualified one here as to remain public the Defendant or rec- permanent country.' ord resident of this known to the Defendant when he took Wood, the oath. United States Subsequent per- to his admission as Pet. 39 U.S. 10 L.Ed. again resident, manent defendant was generally, 527. See charged Arena v. United violating sub- Section States, Cir., 1955, 226 F.2d Law, cer- division York Penal New State denied, 1956, 954, tiorari 350 U.S. 76 following arrested, plea of S.Ct. 342. guilty July 21, 1954, was sentenced days. 30 another clearly The case at bar with foregoing the exceptions. only Defendant the United Not contends that present falsity was the States of sufficient evi- the oath failed established by prove him-guilty copy the crime dence to certified records of the arrest, perjury. defendant’s fol- He contends that the first trial and con lowing York, by viction were not New elements of the crime also de signed authority fendant’s own established: of the Vice- and sworn the state Immigration oath, ment to iden- Consul to administer the the officials on the oc leaving tity making country casion of his the in 1950. Defendant the falsity statement, . per has been held that the sworn the the conviction of jury statement, knowledge denying previous for defendant that crimes can be production false, mate- sustained on the-statement was the of the record prior riality Holy of a to the issue of of .the statement conviction without more. admissibility States, Cir., 1921, v. defendant’s into the Unit- United 7 278 F. agree falsity ed do defend- too States. We not with So can the of the oath be by extra-judicial ant’s -contentions. established an admis prior making sion made to the competence Vice- the false statement. United States v. Buck Consul to administer the oath and the ner, Cir., 1941, 468; 2 118 F.2d See authorization the oath are established for States, 1941, Warszower v. United 312 by 22 a matter of law U.S.C.A. § 342, 603, U.S. 61 S.Ct. 85 L.Ed. 876. (1946 207(f) 8 1203 and former § U.S.C. argues U;S.C.A. Defendant he that could Ed.) (now 1202(e). 8 § English cope language, not with the identity per Defendant’s the prove that the United States failed to son who took oath and the executed the knew he the statement was false. satisfactorily sworn statement was es sufficiency We are satisfied the by documentary tablished evidence and support the the trial evidence court's testimony. oral finding contrary. to the Defendant invoked the well- Defendant’s final contention i.s falsity known rule that of a state material, that his false statement was not charged perjurious truth, ment to be must be because even if he told the had by witnesses, by two obliged established one the vice-consul have been supported independent existing evi witness to issue the visa under the Im States, migration unwilling Hammer v. dence. United law. We are 46 S.Ct. 70 helpless, 271 U.S. L.Ed. 1118. believe vice-consul sois rule, remembered, it must be deals This think defendant’s false statement falsity of might the oath and not with was material if a truthful answer making. United States v. Nessan induced its the vice-consul to institute Cir., 1953, 93; investigation baum, 205 F.2d 3 an which have re Hall, D.C.Ga.1890, proper 44 v. F. 10 in a States sulted refusal of the visa. L.R.A. 324. United States ex rel. Jankowski 580; Cir., Shaughnessy, hold 186 F.2d defendant’s untrue Reimer, relating question answer to ex Fink v. United States rel. Cir., previous F.2d conviction the vice-consul was put investigate, on notice to and we is not have The vice-consul should investigation an proved think could have immigration defend visa to sued immigrant was within one ex within an ant defendant was the excluded classes set above forth. statute under cluded class aliens (1946 force, then Ed.),* U.S.C.A. (e) Under subsection defendant was parts read pertinent of which excludable if he had been convicted of as follows: “involving a “crime or misdemeanor” following turpitude”. of aliens classes moral “The Under the New York disorderly from admission law the shall be excluded de- conduct States: fendant was to the United convicted is denominated an “offense” and is called neither a “crime” imbeciles, idiots, “(a) feeble- All nor a York “misdemeanor.” The New epileptics, persons, insane minded upon adjudicated this differ- Courts have persons; persons one had any insanity and have held nomenclature attacks of at ence or more disorderly previously; persons conduct of consti- this “offense” time inferiority; psychopathic “misde- tutional nor a indeed a “crime” neither persons Gilbert, Sp.Sess. People with chronic alcoholism— v. meanor.” ***** 632; People v. Mont- 12 N.Y.S.2d meanor Provided, victed, mission of an offense or who teach cal—” victed of ly may found examining if otherwise cal defect within 136 or “(e) “(d) felony or earn paragraphs ^[*****] physically defective, affect the to be or who admit the 137 of any Persons who have Persons not a involving or or That living— being of surgeon admit and are certified admissible, persons other this or ability a, nothing classes enumerated advocate the com- title shall having b, or who are moral crime as a comprehended being nature which purely politi- of such alien commission, c, in sections turpitude: committed or been con- exclude, mental- misde- by the physi- con- New risdictional this conviction an all-inclusive tude”. involving the gress magistrates’ “crime scribed appeal Defendant courts these to define gomery, but 583, (e) cf. word “crime”1 7 N.E. 913. York decisions were should before us applicable, People dealing with by * * Co.Ct.1940, “moral State therefore limits of New restrictive courts jurisdiction so not be * commonly readily concur, appeared Courts French, 1886, turpitude” involving It this “offense” in an necessarily prompted in order claims criminal 17 N.Y.S.2d opposed holdings defining of the government to concur that York inferior used word Act of Con- moral appear was not a subsection 102 N.Y. for such to other conduct. inferior circum- though of the turpi- 71; ju- on * imprisonment; death; (2) by (1) Now 8 § U.S.C.A. or tion office; fine; (4) or (3) removal from or or New Dic See Webster’s International enjoy any disqualification to hold tionary Ed.) (1927 Page 522 which profit trust, under honor office statute; defines the word “crime” as follows: discipline.’ penal (6) other commanded, duty “1. omission of An public right violation of crime is a A by forbidden, or the commission an act involve a violation of also public hardly law. term crime is rights Crime includes of an individual. law, a technical term at the common offenses, grades public which at the all essentially many penal defined in of the often classified as trea- common law States, codes in the as in the New United ” ** * felony, son, misdemeanor. code, York ‘an act or forbid omission punishable Court’s.) upon (Italics den law and convie- jurisdiction. possible

courts of criminal Jer applicability Cf. to him of States, 1943, (a) ome v. United (d). U.S. subsections reversing, S.Ct. 87 L.Ed. government contended that de Cir., 130 F.2d 514. fendant was excludable under subsection (a) as a psycho “of constitutional Congress expressed disapproval has its pathic inferiority”. no evi offered type de of behavior for which whatever, dence nor data to inform fendant was For convicted in New York. judicial our notice, to the an effect that example, under the of Columbia District homosexual who solicits unnatural acts Code, 22-2701, misconduct defendant’s public place in a comes within that cate punishable would have been as a misde gory. However, put the defendant before Kelly States, 1952, meanor. v. United given by us answers him under oath U.S.App.D.C. 125, 150; Bicks F.2d through Spanish interpreter to a U. S. States, D.C.Mun.App.1952, ler v. United Immigration Inspector January peculiar 90 A.2d 233. To hold that 1955. These statements later con were York New definition of the word him, “crime” tradicted oath, also under but on interpretation January controls Im 1955 defendant stated that migration Act would an anoma he lead homosexual, indeed an that he had lous result: practicing alien convicted for the been homosexuality his all life, same engaged misconduct- as defendant and had in such acts in the many or in true, of Columbia District States. If these facts 2 under sub would be excludable states well been discovered a medical (e); miscon because this section of our Health when officer Public Service as an “offense” and sought duct is characterized defendant admission into the in New York defendant “crime” together not a And, in 1952.3 United States do not be so excludable. We w'ould not with the fact of defendant’s conviction Congress intended such a result. believe which in itself was of homosex evidence However, to resolve this do not need we extremely ual tendencies of an offensive ground solely for we believe on this case nature,4 exhibitionistic these facts clearly ma lie also the defendant's was have led defendant's certification as a investigation 5 prevented terial physchopathic “constitutional inferior.” Conn.Gen.Stat., Rev., e.g., §§ 2. See 1949 immigration laws. The court is informed 1954, 8873, 8877, 8569, 8548; Iowa Code assigned the medical officers have been 272, 16; 725.1, I.C.A.; § Mass.G.L. c. § pursuant provision. Havana to this 2, 140-1, N.J.1937, Title c. Rev.Stat. of 4. Exhibitionism is defined in Dorland’s :115-1; Penn- 2A Purdon’s now N.J.S.A. sylvania Dictionary, American Illustrated Medical Annotated, 18, § Title Statutes ed., page 22nd 533 as follows: “the dis- Statutes, 4502; Rev.1947, §§ Vermont play body parts (even of one’s or 8480, 8611, 8615. See also State v. Wi- genitals), purpose, conscious or 752; mer, 1918, Del. A. State 30 103 unconscious, attracting a sexual inter- Bauguess, 1898, Iowa N.W. v. 508; 76 106 est.” Hamilton, 1931, Commonwealth 342; Ky. 682, 36 S.W.2d Common- 237 Myerson Psychology in The Mental Cummings, wealth v. 273 Mass. Page Disorders 102 describes (cid:127) particular 506. The kind of N.E. development phraseology of this as fol- variously conduct involved here is defined English term, lows : “The invented the lewdness, criminal statutes as inde- explain ‘moral imbecile’ to those indi- obscenity, disorderly exposure, cent duct, con- go through viduals who life uninfluenced sodomy, variously punishable by punishment disapproval, or social “felony” as a “crime” or “misde- not, therefore, do who subordinate their an “offense.” meanor” or egoism society. to the laws of Often (1946 mentally par, they ed.) § 3. Former U.S.C. now below are not feeble- provides minded, average, for as- U.S.C.A. and indeed be of signment superior intelligence. of medical officers of the United or even The Ger- per- changed ‘psychopathic States Public Health Service for the mans the word to foreign personality,’ Americans, formance of duties in countries to show psychiatric insight in connection with the enforcement of the their added a milestone suffering abnormality from this little-understood We understand mental phrase presumably rarely interpreted degree, a serious i. e. aliens — defective,” psychology charac out of the books —to classified life-long idiocy, epi- imbecility, feeble-mindedness, terize individuals who show tendency lepsy, con insanity, psycho- and constitutional constitutional pathic group customs, inferiority, habitual and who form to alcoholism. chronic flagrantly ly misbehave so “mentally defective,” term used continually authorities. in trouble with embracing statute, concept is a Probate ex rel. Pearson v. State See capacity more than or the intellectual Court, 300.6 205 Minn. 287 N.W. lack thereof.7 The statute in subsection judgment on Jan the defendant our (a) specifically provides exclu- uary 14,1955 himself. so characterized lacking sion of ca- those intellectual therefore, it was We think pacity. (d) must have been Subsection untruth not to disclose a material designed group of to exclude a different further that would have led to conviction immigrants. think this would-be possible respecting inquiry defendant’s language designed homo- to exclude particular excluda within this inclusion tendencies sexuals exhibitionistic class of aliens. ble groups proclivities other with lewd (d), similarly repugnant alien Under subsection our to the mores of is society. excludable admission is progress coining group. label ‘constitu- conform to the customs of the They habitually They here inferior.’ The fact is that tional misbehave. have no dangerous path, responsibility for it difficult tread sense of fellow-men to their separate society constitutional out what or to as a whole. Due to their inability from in this condition defect disease herent to one occu- follow conveniently perhaps they readily temp- ac- pation, called is what succumb to the quired money through crim- getting easy viciousness. The habitual tation of a inferior, may history usually a constitutional be inal life of crime. There is a merely get delinquency early if we substitute we nowhere in indi- life. These They by experience. one term for another. If a fail to learn viduals days continually inadequate, incompatible, and often earliest lies his ineffi- are and deliberately fantastically, designated if he chooses is cient. This class sometimes despite train- a normal environment and Psychopathic Inferior- as ‘Constitutional steady ing, and shun work of kind to every making ity.’ diagnosis, Before this crime, if becomes instead lie chooses diagnostic possibility must be con- other habitud, subject tempera- drug and is to group and excluded. we In this sidered kind, mental manifestations of a bizarre pathological lying, prostitution, va- see punishment not absolve him from need we drug illegitimacy, grancy, alcoholism and psychi- irresponsible, not, for we are as as atrists, deficiency’ The term ‘moral is addiction. knowledge place at the where our group. used characterize sometimes to this concerning may sim- is definite him. We may psychotic epi- patients have These instinct, ply lie state that lacks the social superimposed just upon the trends sodes comparatively, his- after liis at least and Many of individuals mentioned. these repeated tory has become of a definite in contact with the courts on ac- come urge society offender, need threats, quarrels assaults, count segregation.” My- permanent Abraham of erson, vagrancy.” M.D., Company The Macmillan (1928). regards profession the medical That homosexuality Supreme as mental con- disorder Minnesota Court was struing “psychopathic person- indicated is the American Med- the term defect appears ality” Association’s Standard Nomencla- ical it in Minn.Laws as Operations, provides Diseases where which for the care ture C. “Psycho- dangerous sexually page under the irre- division at genic commitment personality quotes (which persons. sponsible Disorders” are The Court originating mind), Abnormality Draper, Relation is a “Mental disorders Am.Jour.Med.Jur., “Soeiopathic Crime,” entitled Person- No. subdivision to “Psychopathic per- ality Pago Disturbance” under which are classi- follows: having persons disorder of sexual individuals show a life- fied sonalities long tendency to and constitutional not deviation. having FRANK, Judge was convicted of so- (concurring). Defendant Circuit place public to licited men in a commit agree given I1. with the first reason with him an homosexual act. Such be- by my colleagues, e., i. that this defend- socially emphatically is havior most guilty knowingly ant was because he approved in these United behavior States. deliberately failed to that he had state falsely in If defendant not sworn had offense, been convicted since that obtain, application his he to the visa offense constituted a “crime or misde- permanent resi- needed to make him a involving meanor turpitude”. moral here, vice-consul would have dent 2. As that reason alone to dis- suffices been warned of exhibition- defendant’s pose appeal, ought of this I think we warned, proclivities. istic anti-social So stop my there. I think it a mistake for undoubtedly

the vice-consul colleagues needlessly to embark —with- required of de- a medical examination pilot, rudder, out a compass or radar— fendant U. Health Serv- S. Public voyage fog-en- on an amateur’s on the Cuba, physician physician ice psychiatry. shrouded sea of The unnec- very upon such an examination essary voyage ends, I it think mentally well have certified defendant as to, My bound in a dubious conclusion: colleagues meaning (sans legislative history within of subsec- defective extensive (d). psychiatric research tion into writ- ings) solemnly Congress declare what in- Finally, a sex deviate so afflicted when, tended statute, in the 1917 mentality publicly defect of adapted psychiatric terminology in the likely very an unnatural act solicit phrases psychopathic “constitutional brought repeated into conflict with be feriority” defective.” It customs, authority, our social constituted phrases which, apply those environment. will find it social He all, applied here, must be and not extremely adapt himself, and psychiatric difficult Act, terms found the 1952 a useful of the Amer- which become member was not effect when defendant gave his answers. community. ican Act for the first time used the Congress supposed “psychopathic personality” term did not intend include such undesira phrase it substituted for the “constitu of im within the excluded classes bles psychopathic inferiority” tional in the migrants (d) (a), in listed subsections legislative earlier statute.1 We have the (e) Section 156 of Title 8 of of U.S. history of the 1952 Act which makes it Ed.) (1946 ;† and it was the C.A. that plain that, legislation, Congress in that Congressional intent should deliberately adopted definitions, con freely be here. admissible report in a tained of the Public We therefore hold the defendant’s Service, Health of the terms of the 1952 false oath was material because it choked According Act. to those Public Health investigation off of a line which well (which many psychia Service definitions in have resulted his valid exclu- accept), trists “psychopathic would not States; sion from all personality” and “mental defect” seem to required prove the elements the crime homosexuality include perver or sexual perjury proved. of him were regardless sion, of procliv whether such judgment ities are “constitutional” The 2—a word affirmed.. “(4) psychopathic Aliens afflicted with Now † §§ 8 U.S.C.A. 1251-1253. personality, epilepsy, or a mental defect”. Act, 1182, pro 1. The 1952 U.S.C.A. Report 2. The Senate Cong., No. 82d exclusion, alia, for the inter vides of “Existing 2d Session stated: law following classes of aliens: specifically provide does not ex- “(1) feeble-minded; Aliens who are perverts. of clusion homosexuals and sex “ (2) insane; Aliens who are provisions specifically of S. 716 which “(3) Aliens who have had one or more perverts excluded homosexuals and sex insanity; attacks of This, course, with.3 which means what one is born do. Conse- we quently, terms— construe the 1917 legislative history no We have inferiority” psychopathic “constitutional per- help interpret its us 1917 statute include defective” —to fact, language. Recognizing that tinent homosexuality like, government or the asks us to in its brief convincing need most and reliable data definitions— read into the Act the Congress (to years judicial notice) adopted inform which later— our as of language legislation. date of of the new Act. have none.4 ap- separate easily Ordinarily, a pear does not be more excludable class substantiated. history homosexuality The Public instant bill. be ob- must provi- may individual, Health Service has advised that tained from the which he successfully up. psychological sion for the exclusion of aliens afflicted cover Some may psychopathic personality helpful uncovering with or mental tests sexuality be homo- in appears himself, individual, defect in instant bill is which which the sufficiently may provide present broad to exclu- be At time unaware. perverts. laboratory sion of there homosexuals and sex are no tests reliable change making diag- helpful This of nomenclature not to be would be any way modifying persons construed in the in- nosis. The detection perversions tent to sexual exclude all aliens are more obvious sexual is rela- tively simple. deviates.” Considerable more difficul- ty may uncovering be encountered The advice of Health Service the Public person. persons Ordinarily, homosexual Report mentioned in this to a “Re- refers sexuality suffering from disturbances port of the Public Health Service included within the classification Aspect Medical 2379.” re- H.R. This ‘psychopathic personality pathologic port of the Public Health Service is set sexuality.’ speci- This classification will Representatives Report out in House of fy types pathologic behavior Congress, No. 82nd 2nd Session homosexuality perversion or sexual Congres- (1952), page 47; see U.S.Code fetishism, sadism, which includes sexual News, 82nd sional and Administrative transvestism, pedophilia, In those etc. Congress, (1952), 2nd Session volume instances where the disturbance in sex- pages seq. pages seq. 1653 et On 1699 et uality may uncover, more be difficult to appears Report. the Public Health Service personality “ obvious disturbance in states: conditions would warrant encountered which a clas- psychopathic group classified within the psychopathic personality sification of personalities effect, are, disorders of mental defect.” personality. They the by developmental are characterized See, e.g., White, pathological The Abnormal Person- defects or ality (2d says 1956) personality ed. 394. He that the trends in the mani- structure concept psychopathic personality “orig- by lifelong patterns fest of action or be- English psychiatrist, havior, inated with an rather than of mental or emotion- Prichard, symptoms. who in 1835 a ‘form al described Individuals with such a derangement’ may of mental in disorder which intellect manifest a disturbance of unimpaired ‘pow- personality patterns, exaggerated seemed but in which the intrinsic self-government’ personality trends, persons er of ing, pri- was lost or lack- or are ill marily incapable society pre- so that the individual was in terms of and the ‘conducting decency vailing soeiopathic of propriety himself with culture. The latter or frequently symptomatic in the business of life.’ Prich- reactions are of a patients ‘morally underlying ard psychosis called such insane’ severe neurosis or ‘morally imbecile,’ frequently or groups terms which still include those of in- persist psychiatry. suffering in British dividuals Toward the from addiction or sex- * * * century hypothesis end of the the was ad- ual deviation. people vanced that who answered the de- perverts. language “Sexual of the scription given by probably Prichard suf- perverts bill persons lists sexual or homosexual hereditary fered from some tceakness of among as those aliens to be ex- system; the nervous hence the term con- cluded from admission to the psychopathic inferiority.” stitutional States. some instances considerable And see the Public Health Service Cir- difficulty may be encountered in substan- infra, quoted cular, explicitly which states tiating diagnosis homosexuality a or “present that “constitutional” means perversion. sexual In other instances birth.” per- where the action behavior of the obvious, that, attempted son is more I be noted think before we to (so-called terpret words, manner in the of dress trans- those we should at least fetishism), government vestism the condition have asked the to assist us 414 To text) obtain such too data would be none writings psychia- the of two easy. reading trists, published But from little what years, respec- psychiatric writings done, tively, I I know have after the enactment the just enough psychiatry (When know about to say statute.8 regard I “without (a) unanimity, now, pre- this: following: No even context” I have in mind the among concerning Psychiatrists psychiatrists the vails differing perspectives interpretation in words (a) classifying

correct when patients, are conflicting interpreta- question, (b) diagnosing patients with reference Congress possible “cure,” (c) discussing tions were in flux when much up legal “responsibility” enacted old statute in 1917 and of the those ac- (b) new.5 cused of psychiatrist when it enacted the crime. A with one Certainly (and perspective may psychiatric there was not in 1917 a use term general agreement now) any in there is psy- manner different from another among homosexuality psychiatrists perspec- chiatrist with another different tive.) perversion supplies sup- and sexual characteristics slimsy Such material port person holding with which (1) is born.6 for a decision homosexuality considered interpreting unwise, I think it component “psycho- “constitutional” colleagues Act, my rely for on a pathic inferiority,” (2) that, when construing 1939,7 Minnesota decision in 1952, Congress dropped “constitutional statute, a 1939 c. Minnesota Laws psychopathic inferiority” and substituted 369, 1, 526.09, provided M.S.A. § “psychopathic personality,” intended it having application “psy- to one change, no so that former means chopathic personality” of that state’s latter, (3) same relating only persons. laws to insane Not 1917 statute defective” includ- say nothing did the statute of “consti- homosexuality ed and exhibitionism not psychopathic inferiority” tutional it present at birth. specifically per- “psychopathic defined sonality” any Revelatory to mean “the circular, existence is a distributed in e., of such conditions of emotional 1951—i. before the 1952 Act— behavior, instability, impulsiveness Public Health Service to its of- medical good customary or lack examining standards of ficers concerned with aliens judgment, appreciate or failure to under the 1917 statute.9 The circular consequences acts, combina- his summarizes the “criteria” these officers conditions, tion apply. such to render states, were to * * * criteria “These person irresponsible for his conduct are not to be un- respect legally to sexual matters and there- interpreta- derstood as effective by dangerous persons.” to other do statute”; Nor tions of the and it notes that colleagues rely my I think it wise for there are “instances in which ter- quotations regard (without minology Immigration to con- Act of filing supplying Think, additional example, us briefs 545-547. homosexuality as, by diligent research, might such data ; of Plato and associates his see, e.g., Fite, Legend discover. For neither in its filed briefs The Platonic argument, government nor at oral did the 8.Oh. furnish us such material. 7. State ex rel. Pearson v. Probate Court, White, 395-396; 5. loc. cit. cf. Guttmacher 545, 205 Minn. 287 N.W. 297. See also Psychiatry Weihoffen, and and the Law Minnesota ex rel. Pearson v. Probate (1952) if. Court, 86 270, 523, 309 U.S. 60 S.Ct. L. 84 Ed. 744. See, e.g., White, 129, 6. loc. 407-409. cit. Consider the fact that a culture’s toler Myerson published 1928, 8. The book was in homosexuality may ance of foster it in Draper article in 1939. many persons who had no such tenden excerpts published 9. The See Interpreter cies at birth. from Wester circular was marek, Origin Development Releases, The of Common Council for Ameri- (1908) Calverton, Unity, Moral Ideas XXVIII, 35, The August can Vol. No. Making 529, especially 7, (1931) The of Man

4X5 ty” (i. e., “psychopathic stand- inferiori- correspond with the does 1917 not ty”). medicine ard of modern nomenclature the preface, psychiatry.” With (2) “psycho- Yet an alien with statutory term circular “The states: pathic personality,” not whether personality’ psychopathic ‘constitutional present birth, excluded is to be counterpart present medi- has no exact “mentally defective,” “men- since However, terminology. psychiatric cal or tally “psycho- defective” includes ‘psycho- the term with certain limitations pathic pathic personality” e., “psycho- (i. sub- personality,’ its various pathic inferiority”). categories, same to have would seem If, however, “mentally in- defective” meaning. condi- In the classification every “psychopathic cludes alien with category, ‘con- the word tions under this regardless personality,” whether im- important. This term is stitutional’ why it, not did Con- inferiority he was born with psychopathic plies gress specifically require exclusion ex- medical present The at birth. certify “psychological per- therefore, a condi- an alien whose will, aminer sonality” (i. e., “psychopathic inferiori- psychopathic ‘constitutional tion as feriority’ only goes “constitutional,” e., ty”) back its is i. condition where the an inter- his birth? Does not such present are tracea- symptoms were early years pretation ren- defective” clearly back ble rather functionless, purposeless, der the use there- existence individual’s limiting As pres- “constitutional”? word to have been considered fore can be according interpretation with such an effect So, cir- an to this birth.” ent at includes, rejected,10does not the statute personality” should be cular, “psychiatric as, “psycho- excluded that an alien is not to be mean much the same and means personality” “psychopathic Congress, unless his inferiority,” when

pathic e., “psychopathic inferiority”) is (i. provided exclusion specifically for the person- “psychopathic “constitutional” ? alien with a of an “constitutional,” meant ality” if it were (a) that seem to me to follow present But personality at birth. inferiority,” psychopathic "constitutional states, “Individuals with also the circular statute, not used in old at all is is personality in whom it psychopathic “psychopathic personality,” first same the constitu- impossible to demonstrate statute, (b) that used in the 1952 “mentally symptoms also tional nature old statute defective” excluded) (i. e., men- to be certifiable “psycho- to cover a cannot be stretched pathic tally result the curious defective.” See inferiority” is “consti- not interpretations: of this circular’s think, analysis, amply This I tutional.” justifies prefatory specifically calls the circular’s warn- statute ing interpretations its “are not of an alien who was exclusion * * * legally personali- “psychopathic to be understood as ef- with a born Ed. v. 202; Union U.S. U.S. parte See, e.g., pointing Phoenix U.S. 615; 546-547, 115-116, Hill v. 528, 538-539, Public National Market L.Ed. Pacific 52 S.Ct. Aetna out that Nat. William, Co. v. Railroad Viscount Bank & Trust Casualty States v. 329, L.Ed. seldom should tautol- 75 S.Ct. Bank of New Hoffman, S.Ct. ^[1949] Co., Simon L.Ed. 782; Menasche, & 513, Surety A.C. (at 101 U.S. 709; U.S. Platt Co., 99 L. L.Ed. York, 546), 348 285 Co. Ex plies liamentary eloquence) ogy rule that a ment to what were left thing repetition “it given is to be observed be contrary, that, twice would not be there if the imputed has out.” unless there is enactment over without every to be assumed. meaning should, already capable to a case word in the statute im- words legislature, been said (like parliamentary saying adding anything good add though Act of Parlia- something once, reason to the same said that possible, words Par- this interpretations fective statute” think, same, I stood before 1952. The my colleague’s interpretations. true For if it Act as construe the 1917 legis- byAct, applying were the 1952 history

lative the former. latter to indulgently) (I We would smile trust thought psychiatrists most

at legal clear, possess precise, stable terms

meanings, easily thumb- be learned ing legal judicial opinions few dictionary. Why hope es- should we psychiatrists cape smiles be- similarly psychiatry

have vis-á-vis ? And why psychiatrists should we assume successfully

have overcome the semantic (ex-

difficulties we and all other humans cept, perhaps, mathematicians) have

never surmounted? LABOR RELATIONS

NATIONAL Petitioner, BOARD, CORPORA- & TRECKER

KEARNEY TION, Respondent.

No. 11726. Appeals Court of States Circuit. Seventh 12, 1956.

Oct. gy mathema- of Invention sure that even Mathematical Field Chapters always escaped perils 6-8. ticians Hadamard, Psycholo- ambiguity. See

Case Details

Case Name: United States v. Roberto Flores-Rodriguez

Court Name: Court of Appeals for the Second Circuit

Date Published: Oct 1, 1956

Citation: 237 F.2d 405

Docket Number: 24097_1

Court Abbreviation: 2d Cir.