McFarland v. United States, 19 F.2d 805 (6th Cir. 1927)

*806 O. Guy Frick, of Detroit, Mich., for plaintiff in error.

David Polasky, of Detroit, Mich. (Delos G. Smith, U. S. Atty., of Detroit, Mich., on the brief), for the United States.

Before DENISON and MOORMAN, Circuit Judges, and GORE, District Judge.

DENISON, Circuit Judge (after stating the facts as above).

In passing, we note a question as to the sufficiency of the indictment. The statute is unfortunately ambiguous in its use of the alternative. The offense is defined with reference to "any alien not duly admitted by an immigrant inspector or not lawfully entitled to enter or to reside within the United States under the terms of this act." Is it necessary, in making out the offense, that the alien should have both attributes, viz. should neither have been admitted nor be entitled to enter; or is it sufficient if the alien has either disqualification, viz. either has never been admitted or is not entitled to enter? Either construction falls back upon a doubtful intent; but we think the question not now necessarily to be decided, because, with either meaning, there is an insuperable difficulty in applying section 8 to the facts of this situation.

What John McFarland did was to aid and promote another's attempt unlawfully to pass the inspection line. Is this "to bring into or land in the United States"? From its context this language seems to refer to persons who are like the master of a vessel, although by the words "or otherwise" it reaches to other conveyances. The verbs in question are appropriate to a relatively active conduct which affects a relatively passive immigrant. They are appropriate to one who transports, and are distinctly inappropriate, although not necessarily inapplicable, to one who persuades or aids the immigrant to take himself by public conveyance up to the inspection line for examination, whether or not he gets through. Their unsuitability is emphasized by the complete association to "bring into the United States" any alien not duly admitted by an immigrant inspector. Only by great stretch will this reach one who only helps, or, in a sense, "brings," an alien up to the inspector for admission.

An alien may get into the United States in either of two ways: He may come up to the established point of inspection and submit himself for examination, and for admission or rejection, or he may endeavor to avoid this examination and come into or land in the United States surreptitiously. The statute has its full normal field of application, if it is restricted to entry at other than the inspection points, to that "landing" or "bringing" which escapes inspection. One who merely crosses the international line on a boat, and then crosses the dock to the immigration office for examination, has not come into the United States. He has neither been landed in, nor been brought in, under any accuracy of definition. He is subject to exclusion, not deportation. Even if he is then passed and walks in, so that he has fully entered, he has not been brought in. He is the actor, not the object of another's action.

Upon the whole, and considering also the general rule that presumptions are against the creation by ambiguous language of a new crime, we conclude that John McFarland did not "bring into" or "land in" the United States his alien son, within the meaning of this section 8. It is true that, since this section penalizes an attempt as well as an accomplishment of the act, and since there may be therefore a conviction of an attempt under an indictment charging only the act (U. S. Code, tit. 18, § 565; U. S. Comp. St. § 1701), we should not overlook the somewhat closer question which might arise upon a new trial, whether the furnishing of the aid to enable Matthew to get past the inspector was an attempt to bring him in. If the act, completed as intended, would not have been the act forbidden by the statute, and we think it would not, the unsuccessful effort cannot be the statutory attempt. Due application of the rule of strict construction of penal statutes, and the fact that certain acts of this class, aiding the intent to deceive the inspector, have been selected and specifically penalized *807 (section 16 [Comp. St. § 4289¼i] perjury), convince us that the facts of the case do not show any attempt to violate section 8.

The judgment must be reversed, and the case remanded for further proceedings.