United States of America, Appellee, v. Roberto Flores-rodriguez, Defendant-appellant, 237 F.2d 405 (2d Cir. 1956)

A one count indictment charged that, in violation of 22 U.S.C.A. § 1203 and 18 U.S.C. § 1621, defendant committed perjury by falsely stating in a signed and sworn Application for Immigration Visa and Alien Registration in Havana, Cuba that he had not been arrested or indicted for or convicted of any offense.

The defendant waived trial by jury and was tried before Judge Cashin. After trial, defendant moved for a judgment of acquittal. The judge denied the motion, found defendant guilty, and entered a judgment of conviction, sentencing defendant to a term of six months' imprisonment. Defendant appeals.

There was evidence at the trial of the following facts: On June 29, 1949, defendant, a citizen of Cuba, was admitted to the United States as a 29-day visitor. He returned to Cuba on July 27, 1949. Defendant next entered the United States on July 28, 1950, again as a 29-day visitor. Fifty-one days later, on September 17, 1950, or 22 days after he was supposed to have left the United States, defendant was arrested by an officer of the New York City Police Department for a violation of Section 722 (8), New York Penal Law, McK.Consol. Laws, c. 40, which provides:

"§ 722. Disorderly conduct: "Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct * * *

"8. Frequents or loiters about any public place soliciting men for the purpose of committing a crime against nature or other lewdness".

The arresting officer's sworn complaint stated in part:

"* * * On September 17, 1950 at men's toilet at Duffy Square, 47th Street and 7th Avenue, and vicinity (about 5:30 P.M.) * * * the Defendant did loiter for the purpose of inducing others to commit lewd and indecent acts, from about 5 to 5:30 o'clock P.M. did move from one urinal to several others, did manipulate the exposed and naked parts of his person, to wit, his penis, to the view of others, and did motion with his head in the direction of deponent and several others in said toilet."

Defendant was tried in the City Magistrate's Court of New York City on September 18, 1950 and found guilty. On September 25, 1950 he was sentenced to 30 days. The execution of the sentence was suspended and defendant was permitted to return to Cuba. On November 7, 1952, defendant presented himself at the American Consulate in Havana, Cuba, and there executed an Application for Immigration Visa and Alien Registration in order to obtain permanent admission to the United States. In this application defendant stated "* * * I have not been arrested or indicted for, or convicted of, any offense * * *" The application was subscribed and sworn to before a Vice-Consul of the United States of America, in Cuba, on November 7, 1952. It was then visaed by the Vice-Consul and became an immigration visa. Defendant, using this visa, entered the United States on November 19, 1952, as one properly qualified to remain here as a permanent resident of this country.

Subsequent to his admission as a permanent resident, defendant was again charged with violating Section 722, subdivision 8, New York State Penal Law, was arrested, and following a plea of guilty on July 21, 1954, was sentenced to another 30 days.

Defendant contends that the United States failed to present sufficient evidence to prove him guilty of the crime of perjury. He contends that the following elements of the crime were not established: the authority of the Vice-Consul to administer the oath, the identity of Defendant as the person making the sworn statement, the falsity of the statement, knowledge of defendant that the statement was false, and the materiality of the statement to the issue of defendant's admissibility into the United States. We do not agree with defendant's contentions.

The competence of the Vice-Consul to administer the oath and the authorization for the oath are established as a matter of law by 22 U.S.C.A. § 1203 and former 8 U.S.C. § 207(f) (1946 Ed.) (now 8 U.S.C.A. § 1202(e).

Defendant's identity as the person who took the oath and executed the sworn statement was satisfactorily established by documentary evidence and oral testimony.

Defendant invoked the well-known rule that the falsity of a statement charged to be perjurious must be established by two witnesses, or by one witness supported by independent evidence. Hammer v. United States, 1926, 271 U.S. 620, 46 S. Ct. 603, 70 L. Ed. 1118. This rule, it must be remembered, deals with the falsity of the oath and not with its making. United States v. Nessanbaum, 3 Cir., 1953, 205 F.2d 93; United States v. Hall, D.C.Ga.1890, 44 F. 864, 10 L.R.A. 324.

It does not apply where the falsity of the oath is established by documentary evidence or written testimony springing from the Defendant or by a public record known to the Defendant when he took the oath. United States v. Wood, 1840, 14 Pet. 430, 39 U.S. 430, 10 L. Ed. 527. See generally, Arena v. United States, 9 Cir., 1955, 226 F.2d 227, certiorari denied, 1956, 350 U.S. 954, 76 S. Ct. 342.

The case at bar is clearly within the foregoing exceptions. Not only was the falsity of the oath established by the certified copy of the records of defendant's first arrest, trial and conviction in New York, but also by defendant's own signed and sworn statement to Immigration officials on the occasion of his leaving the country in 1950. It has been held that a conviction of perjury for denying previous crimes can be sustained on the production of the record of a prior conviction without more. Holy v. United States, 7 Cir., 1921, 278 F. 521. So too can the falsity of the oath be established by an extra-judicial admission made prior to the making of the false statement. United States v. Buckner, 2 Cir., 1941, 118 F.2d 468; See Warszower v. United States, 1941, 312 U.S. 342, 61 S. Ct. 603, 85 L. Ed. 876.

Defendant argues that he could not cope with the English language, and that the United States failed to prove that he knew the statement was false. We are satisfied with the sufficiency of the evidence to support the trial court's finding to the contrary.

Defendant's final contention is that his false statement was not material, because even if he had told the truth, the vice-consul would have been obliged to issue the visa under the existing Immigration law. We are unwilling to believe the vice-consul is so helpless, and we think that defendant's false statement was material if a truthful answer might have induced the vice-consul to institute an investigation which might have resulted in a proper refusal of the visa. United States ex rel. Jankowski v. Shaughnessy, 2 Cir., 1951, 186 F.2d 580; United States ex rel. Fink v. Reimer, 2 Cir., 1938, 96 F.2d 217.

The vice-consul should not have issued an immigration visa to the defendant if the defendant was within an excluded class of aliens under the statute then in force, 8 U.S.C.A. § 136 (1946 Ed.),^*  the pertinent parts of which read as follows:

"The following classes of aliens shall be excluded from admission into the United States:

"(a) All idiots, imbeciles, feebleminded persons, epileptics, insane persons; persons who have had one or more attacks of insanity at any time previously; persons of constitutional psychopathic inferiority; persons with chronic alcoholism —

* * * * *

"(d) Persons not comprehended within any of the classes enumerated in paragraphs a, b, or c, who are found to be and are certified by the examining surgeon as being mentally or physically defective, such physical defect being of a nature which may affect the ability of such alien to earn a living —

* * * * *

"(e) Persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude: Provided, That nothing in sections 136 or 137 of this title shall exclude, if otherwise admissible, persons convicted, or who admit the commission, or who teach or advocate the commission of an offense purely political —"

We hold that by the defendant's untrue answer to the question relating to any previous conviction the vice-consul was not put on notice to investigate, and we think an investigation could have proved that the immigrant was within one of the excluded classes above set forth.

Under subsection (e) defendant was excludable if he had been convicted of a "crime or misdemeanor" "involving moral turpitude". Under the New York law the disorderly conduct for which defendant was convicted is denominated an "offense" and is called neither a "crime" nor a "misdemeanor." The New York Courts have adjudicated upon this difference in nomenclature and have held that this "offense" of disorderly conduct is indeed neither a "crime" nor a "misdemeanor." People v. Gilbert, Sp.Sess. 1939, 12 N.Y.S.2d 632; People v. Montgomery, Co.Ct.1940, 17 N.Y.S.2d 71; but cf. People v. French, 1886, 102 N.Y. 583, 7 N.E. 913. It would appear that these decisions were prompted in order to define the jurisdiction of the inferior magistrates' courts as opposed to other courts dealing with criminal conduct. Defendant therefore claims subsection (e) not applicable, and the government on appeal before us appeared to concur that this conviction for this "offense" though involving "moral turpitude" was not a "crime * * * involving moral turpitude".

We cannot so readily concur, for such an all-inclusive commonly used word as the word "crime"¹  in an Act of Congress should not be necessarily circumscribed by restrictive holdings of the New York State Courts defining the jurisdictional limits of New York inferior courts of criminal jurisdiction. Cf. Jerome v. United States, 1943, 318 U.S. 101, 63 S. Ct. 483, 87 L. Ed. 640, reversing, 2 Cir., 130 F.2d 514.

Congress has expressed its disapproval of the type of behavior for which defendant was convicted in New York. For example, under the District of Columbia Code, § 22-2701, defendant's misconduct would have been punishable as a misdemeanor. Kelly v. United States, 1952, 90 U.S.App.D.C. 125, 194 F.2d 150; Bicksler v. United States, D.C.Mun.App.1952, 90 A.2d 233. To hold that the peculiar New York definition of the word "crime" controls the interpretation of the Immigration Act would lead to an anomalous result: an alien convicted for the same misconduct as defendant in the District of Columbia or in many of the states²  would be excludable under subsection (e); but because this misconduct is characterized as an "offense" and not a "crime" in New York defendant would not be so excludable. We do not believe Congress intended such a result. However, we do not need to resolve this case solely on this ground for we believe the defendant's lie was also clearly material in that it prevented investigation of the possible applicability to him of subsections (a) and (d).

The government contended that defendant was excludable under subsection (a) as a person "of constitutional psychopathic inferiority". It offered no evidence whatever, nor any data to inform our judicial notice, to the effect that an homosexual who solicits unnatural acts in a public place comes within that category. However, the defendant put before us answers given by him under oath through a Spanish interpreter to a U. S. Immigration Inspector on January 14, 1955. These statements were later contradicted by him, also under oath, but on January 14, 1955 defendant stated that he was indeed an homosexual, that he had been practicing homosexuality all his life, and had engaged in such acts in the United States. If true, these facts might well have been discovered by a medical officer of our Public Health Service when defendant sought admission into the United States in 1952.³  And, together with the fact of defendant's conviction which in itself was evidence of homosexual tendencies of an extremely offensive exhibitionistic nature,⁴  these facts might have led to defendant's certification as a "constitutional physchopathic inferior."⁵  We understand this little-understood and rarely interpreted phrase — presumably out of the psychology books — to characterize individuals who show a life-long and constitutional tendency not to conform to group customs, and who habitually misbehave so flagrantly that they are continually in trouble with authorities. See State ex rel. Pearson v. Probate Court, 205 Minn. 545, 287 N.W. 297, 300.⁶  In our judgment the defendant on January 14, 1955 so characterized himself.

We think therefore, that it was a material untruth not to disclose the conviction that would have led to further inquiry respecting defendant's possible inclusion within this particular excludable class of aliens.

Under subsection (d), any alien is excludable from admission who is suffering from a mental abnormality of a serious degree, i. e. aliens "mentally defective," that cannot be classified as idiocy, imbecility, feeble-mindedness, epilepsy, insanity, constitutional psychopathic inferiority, or chronic alcoholism. The term "mentally defective," as used in the statute, is a concept embracing more than intellectual capacity or the lack thereof.⁷  The statute in subsection (a) specifically provides for the exclusion of those lacking in intellectual capacity. Subsection (d) must have been designed to exclude a different group of would-be immigrants. We think this language was designed to exclude homosexuals with exhibitionistic tendencies and other groups with lewd proclivities similarly repugnant to the mores of our society.

Defendant was convicted of having solicited men in a public place to commit with him an homosexual act. Such behavior is most emphatically not socially approved behavior in these United States. If defendant had not sworn falsely in his application to obtain the visa he needed to make him a permanent resident here, the vice-consul would have been warned of defendant's exhibitionistic anti-social proclivities. So warned, the vice-consul undoubtedly would have required a medical examination of defendant by a U. S. Public Health Service physician in Cuba, and the physician upon such an examination might very well have certified defendant as mentally defective within the meaning of subsection (d).

Finally, a sex deviate so afflicted with such a defect of mentality as to publicly solicit an unnatural act is very likely to be brought into repeated conflict with our social customs, constituted authority, and social environment. He will find it extremely difficult to adapt himself, and to become a useful member of the American community.

It cannot be supposed that Congress did not intend to include such undesirables within the excluded classes of immigrants listed in subsections (a), (d) and (e) of Section 156 of Title 8 of U.S. C.A. (1946 Ed.);^â  and that it was the Congressional intent that they should be freely admissible here.

We therefore hold that the defendant's false oath was material because it choked off a line of investigation which well might have resulted in his valid exclusion from the United States; and that all the elements required to prove the crime of perjury by him were proved.

The judgment is affirmed.

FRANK, Circuit Judge (concurring).

1. I agree with the first reason given by my colleagues, i. e., that this defendant was guilty because he knowingly and deliberately failed to state that he had been convicted of an offense, since that offense constituted a "crime or misdemeanor involving moral turpitude".

2. As that reason alone suffices to dispose of this appeal, I think we ought to stop there. I think it a mistake for my colleagues needlessly to embark — without a pilot, rudder, compass or radar — on an amateur's voyage on the fog-enshrouded sea of psychiatry. The unnecessary voyage ends, as I think it was bound to, in a dubious conclusion: My colleagues (sans legislative history or extensive research into psychiatric writings) solemnly declare what Congress intended when, in the 1917 statute, it adapted psychiatric terminology in the phrases "constitutional psychopathic inferiority" and "mentally defective." It is those phrases which, if they apply at all, must be applied here, and not the psychiatric terms found in the 1952 Act, which was not in effect when defendant gave his answers.

The 1952 Act for the first time used the term "psychopathic personality" which it substituted for the phrase "constitutional psychopathic inferiority" in the earlier statute.¹  We have the legislative history of the 1952 Act which makes it plain that, in that legislation, Congress deliberately adopted definitions, contained in a 1952 report of the Public Health Service, of the terms of the 1952 Act. According to those Public Health Service definitions (which many psychiatrists would not accept), "psychopathic personality" and "mental defect" seem to include homosexuality or sexual perversion, regardless of whether such proclivities are "constitutional"²  — a word which means what one is born with.³ 

We have no legislative history of the 1917 statute to help us interpret its pertinent language. Recognizing that fact, the government in its brief asks us to read into the 1917 Act the definitions — which Congress adopted 35 years later — of the new language of the 1952 Act. This, of course, we cannot do. Consequently, to construe the 1917 terms — "constitutional psychopathic inferiority" and "mentally defective" — to include homosexuality or the like, we would need most convincing and reliable data (to inform our judicial notice) as of the date of that legislation. We have none.⁴  To obtain such data would be none too easy. But from what little reading of psychiatric writings I have done, I know just enough about psychiatry to know this: (a) No unanimity, even now, prevails among psychiatrists concerning the correct interpretation of the words in question, and the conflicting interpretations were much in flux when Congress enacted the old statute in 1917 and up to 1952 when it enacted the new.⁵  (b) Certainly there was not in 1917 (and there is not now) any general agreement among psychiatrists that homosexuality and sexual perversion are characteristics with which a person is born.⁶ 

I think it unwise, in interpreting the 1917 Act, for my colleagues to rely on a Minnesota decision in 1939,⁷  construing a 1939 Minnesota statute, Laws 1939, c. 369, § 1, M.S.A. § 526.09, which provided for the application to one having a "psychopathic personality" of that state's laws relating to insane persons. Not only did the statute say nothing of "constitutional psychopathic inferiority" but it specifically defined "psychopathic personality" to mean "the existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of his acts, or a combination of any such conditions, as to render such person irresponsible for his conduct with respect to sexual matters and thereby dangerous to other persons." Nor do I think it wise for my colleagues to rely on quotations (without regard to context) from the writings of two psychiatrists, published 11 and 22 years, respectively, after the enactment of the 1917 statute.⁸  (When I say "without regard to context" I have in mind the following: Psychiatrists have differing perspectives when they are (a) classifying patients, (b) diagnosing patients with reference to possible "cure," and (c) discussing the legal "responsibility" of the those accused of crime. A psychiatrist with one perspective may use a psychiatric term in a manner different from another psychiatrist with another different perspective.) Such material supplies slimsy support for a decision holding (1) that in 1917 homosexuality was considered a "constitutional" component of "psychopathic inferiority," (2) that, when in 1952, Congress dropped "constitutional psychopathic inferiority" and substituted "psychopathic personality," it intended no change, so that the former means the same as the latter, and (3) that in the 1917 statute "mentally defective" included homosexuality and exhibitionism not present at birth.

Revelatory is a circular, distributed in 1951 — i. e., before the 1952 Act — by the Public Health Service to its medical officers concerned with examining aliens under the 1917 statute.⁹  The circular summarizes the "criteria" these officers were to apply. It states, "These criteria * * * are not * * * to be understood as legally effective interpretations of the statute"; and it notes that there are "instances in which the terminology of the Immigration Act of 1917 does not correspond with the standard nomenclature of modern medicine and psychiatry." With that preface, the circular states: "The statutory term `constitutional psychopathic personality' has no exact counterpart in present medical or psychiatric terminology. However, with certain limitations the term `psychopathic personality' with its various subcategories, would seem to have the same meaning. In the classification of conditions under this category, the word `constitutional' is important. This term implies that the psychopathic inferiority was present at birth. The medical examiner will, therefore, certify a condition as `constitutional psychopathic inferiority' only where the condition or its symptoms were present and are traceable rather clearly back to the early years of the individual's existence and therefore can be considered to have been present at birth." So, according to this circular, "psychiatric personality" includes, and means much the same as, "psychopathic inferiority," and Congress, when it specifically provided for the exclusion of an alien with a "psychopathic personality" if it were "constitutional," meant such a personality present at birth. But the circular also states, "Individuals with psychopathic personality in whom it is impossible to demonstrate the constitutional nature of the symptoms are also certifiable (i. e., to be excluded) as mentally defective." See the curious result of this circular's interpretations:

(1) The statute specifically calls for the exclusion of an alien who was born with a "psychopathic personality" (i. e., "psychopathic inferiority").

(2) Yet an alien with a "psychopathic personality," whether or not present at birth, is to be excluded as "mentally defective," since "mentally defective" includes "psychopathic personality" (i. e., "psychopathic inferiority").

If, however, "mentally defective" includes every alien with a "psychopathic personality," regardless of whether or not he was born with it, why did Congress specifically require the exclusion of an alien whose "psychological personality" (i. e., "psychopathic inferiority") is "constitutional," i. e., goes back to his birth? Does not such an interpretation of "mentally defective" render purposeless, functionless, the use of the limiting word "constitutional"? As an interpretation with such an effect should be rejected,¹⁰  does not the statute mean that an alien is not to be excluded unless his "psychopathic personality" (i. e., "psychopathic inferiority") is "constitutional"?

It would seem to me to follow (a) that "constitutional psychopathic inferiority," used in the old statute, is not at all the same as "psychopathic personality," first used in the 1952 statute, and (b) that "mentally defective" in the old statute cannot be stretched to cover a "psychopathic inferiority" which is not "constitutional." This analysis, I think, amply justifies the circular's prefatory warning that its interpretations "are not * * * to be understood as legally effective interpretations of the statute" as it stood before 1952. The same, I think, is true of my colleague's interpretations. For they construe the 1917 Act as if it were the 1952 Act, by applying the legislative history of the latter to the former.

We would smile (I trust indulgently) at psychiatrists who thought that most legal terms possess clear, precise, stable meanings, easily to be learned by thumbing a few judicial opinions and a legal dictionary. Why should we hope to escape the smiles of psychiatrists if we behave similarly vis-à-vis psychiatry? And why should we assume that psychiatrists have successfully overcome the semantic difficulties we and all other humans (except, perhaps, mathematicians)¹¹  have never surmounted?