Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
Appellant was convicted of (1) wilfully failing to make application for registration as an alien under the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1302(a) and (2) of failing to give written notice to the Attorney General of his current address in accordance with the same Act, 8 U.S.C.A. § 1305. He was sentenced to be imprisoned for five months and fined $1,000 on the first count. On the second count he was sentenced to be imprisoned for thirty days (to run concurrently with the sentence given on the first count) and to pay $200 fine.
Seven points are urged for reversal. The first of these, one of the two main points argued, is that, as a matter of law, the record is void of evidence from which the jury could reasonably conclude appellant had wilfully failed to make application for alien registration and to be fingerprinted.*fn1
The trial disclosed that examination of the Immigration and Naturalization Service files had developed nothing to indicate appellant had ever registered as an alien. Appellant did not take the stand nor was there any evidence offered in his behalf. Similarly, examination of the Service files evidenced no annual address report for 1958 as to appellant.*fn2 The files of the Service did show the date of appellant's entry into this country as March 27, 1913, which was in no way contradicted.
Wilfulness, by the language of Section 1302(a), is an indispensable element of the offense under the first count and the trial judge so charged. The government recognized its burden in this connection and submitted evidence, set out below, of Zeid's course of conduct which by a hard count demonstrated that he was fully aware he was an alien required to register and be fingerprinted but purposely and wrongfully refused to do so.
On October 27, 1958, appellant was subpoenaed as a witness to testify before a grand jury in Pittsburgh, Pennsylvania. He was not a defendant in the matter, no prosecution of him was being sought and nothing in that particular inquiry as far as he is concerned has ever come before a grand jury. In the course of his examination as such witness he was asked by a juror, "Why have you never become a citizen of the United States?" Appellant answered, "Well, I was under the assumption that my father was a citizen due to the fact he was over in this country before I was born, and I never realized until about 1950 that I wasn't a citizen." A juror then asked, "Have you ever tried to become one since 1950?" Appellant answered, "No, I haven't." (Emphasis supplied.)
That same day, October 27, 1958, following his grand jury appearance, he went to the Pittsburgh office of the Immigration Service and registered as an alien. The following day appellant talked with George P. Spine, an Immigration and Naturalization Service investigator, at the Service office in the Pittsburgh Federal Building. Spine testified about this as follows: "I asked him why he had not registered as an alien under the Alien Registration Act of 1940. At first he stated he thought he was a citizen through his father; later on he stated he believed he was born in New York until about 1947, when he assumed that he may have been a citizen through his father, whom he believed was naturalized, although he never had any verification of his father's naturalization. He further stated that about four months previous to the time I first interrogated him, he had ascertained from a brother Milton I believe, that he was not a citizen, either through his father nor by birth in the United States." Spine also said: "He stated that when his brother informed him that he was not a citizen, which was four months before I talked to him, why, he had gone to the Miami Immigration office and they referred him to Pittsburgh, but he had returned to the Pittsburgh area two months before I talked to him, and had not come to the Immigration office." Spine was asked, "Did you ask him why he had not come to the Immigration office?" He answered: "He said he was sick. I asked him, he said he had been sick." Spine stated that he had no reason to disbelieve appellant when the latter stated he was referred to the Pittsburgh office.
Spine saw appellant again on January 26, 1959. At that time, as Spine testified and was not denied, "He stated that he knew he was born in Russia in 1924, that is, he knew as far back as 1924 that he was born in Russia." (Emphasis supplied.)
The Director of Treatment Resources, Boys Industrial School, Lancaster, Ohio, was a witness at the trial. He had with him the records of the school as called for by his subpoena duces tecum. Appellant's attorney stipulated that the School records showed that the place of birth of appellant was Russia, his date of birth, July 30, 1907 and that he was admitted to the School August 26, 1924, at which time he was seventeen years old.
An assistant clerk from the Orphans Court of Westmoreland County, Pennsylvania was a witness. He produced under subpoena the original application of appellant and Norma Tallarico for a marriage license made on December 23, 1954 and signed by appellant. This gives his birthplace as New York City, New York. Cross-examination developed that each applicant answers his or her own questions.
A certification of the master fingerprint card of appellant on file with the Federal Bureau of Investigation was in evidence. The master card is signed by appellant and gives his date of birth and his birthplace as Russia. The card dates are from September 8, 1930 to July 15, 1936. This was accepted into evidence strictly for the purpose of showing appellant had stated on the first date noted on the card or within the dates named, that his birthplace was Russia.
Finally, on this phase, there was in evidence the appellant's family record of the Jewish Family Service of Cleveland, Ohio. This noted that appellant was born 7-15-07 at Brest-Litovsk, Russia. The application for assistance was made to the service by the mother. The record itself does not state who supplied the above information re appellant.
In the face of the outlined evidence it cannot be reasonably concluded that the jury did not have before it substantial proof for the government's contention that appellant's failure to register and be fingerprinted under 8 U.S.C.A. § 1302(a) had been wilful. The whole theory of the defense is that there is nothing in the government's case to furnish any support to the necessary element that Zeid intentionally did not register as he was commanded to do by the statute. But appellant's own story, pieced together from what he told Spine and the various exhibits, is self-destroying as far as any alleged lack of intent not to register and be fingerprinted is concerned. For example, regarding his application for a marriage license made December 23, 1954. He there said his birthplace was New York City, New York. At that time under various admissions by him in evidence, he knew this was false. He knew he had been born in Russia. In the face of this deliberate falsehood the ...