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October 15, 1954

Morris GINN, also known as Michael Gates

The opinion of the court was delivered by: CLARY

On March 3, 1953, an information was filed in three counts, Criminal No. 17102, charging the defendant, Morris Ginn, with failure to register and be fingerprinted as an alien, in violation of Title 8 U.S.C. § 452,* and with failure to supply the Commissioner of Immigration and Naturalization with his address and other required information for the years 1951 and 1952, in violation of Title 8 U.S.C. § 456, as amended. dagger A jury, on March 2, 1954, returned a verdict of guilty on each count of the information, and defendant has moved for judgment of acquittal.

The first count alleged that defendant, being then a resident in the United States, etc., refused to make application for registration and to be fingerprinted as required under Section 31 of the Alien Registration Act of 1940, 54 Stat. 673,*repealed June 27, 1952. On this count defendant has pleaded the statute of limitations and has argued that the duty to register under this Act was extinguished by its statutory successor, the Immigration and Nationality Act of 1952, 66 Stat. 224, and, if not, the requirement that he register under the latter Act is unconstitutional in that in so doing he would be forced to reveal incriminating information on his failure to register under the 1940 Act. All these contentions were advanced at the argument on a motion to dismiss which was heard before trial. Judge George A. Welsh, of this court and before whom the motion was heard, denied the motion in an opinion filed on November 16, 1953. In its present posture Judge Welsh's views must be regarded as the law of the case and the same arguments advanced in this motion for acquittal will not, therefore, be now considered.

 The second and third counts respectively allege failure to notify the Commissioner of Immigration and Naturalization of defendant's then current address in the periods January 1 to January 11, 1951 and January 1 to January 11, 1952, as required by the Subversive Activities Control Act of 1950, Section 24, 64 Stat. 1012, repealed June 27, 1952. The language of the Act material to these charges is:

'Any alien required to be registered under this title who is an alien resident of the United States on January 1, 1951, and on January 1 of any succeeding year, shall, within ten days following such dates, notify the Commissioner in writing of his current address.'

 The applicable regulation governing the procedure for such notification reads, insofar as is here material,

'The notification shall be made on Form I-53, Address Report Card, which may be obtained in any post office during the notification period, January 1st to 11th inclusive. All entries on the Address Report Card shall be printed clearly in ink or with a dark or indelible pencil except the signature which shall be written in ink or with a dark or indelible pencil. Such card shall not be bent, folded, creased, torn or mutilated in any way. The card shall be signed by the alien or parent or guardian and handed to a postal clerk at any United States Post Office during the notification period, January 1st to 11th inclusive. Such card will be submitted to the Commissioner of Immigration and Naturalization by the Post Office officials,' 16 F.R. 11065, *fn1" October 8, 1951. (Emphasis added.)
The Government and defendant at the trial entered into a stipulation that defendant was an alien required to register under the 1940 Act, that he had failed to so register or apply for registration and, in short, all the facts which would have been admitted by a plea of guilty to Count 1. It was also stipulated that defendant was an alien required to notify the Commissioner of his current address under the Subversive Activities Control Act of 1950 for both of the years 1951 and 1952. It was further stipulated that defendant is an alien required by the Immigration and Nationality Act of 1952 to register thereunder and, after having been advised by his attorney that he was required to present himself for registration, did so present himself and said registration was refused until the appropriate action for failure to register under the 1940 Act could be decided upon.
The evidence presented to the jury and which it could have believed in reaching its verdict on the respective counts was as follows. The certification of the Acting Chief, Records Administration Branch, Administrative Division, of the Central Office, Immigration and Naturalization Service, that he is the custodian of any and all registration records required to be filed with the Commissioner under the Act here involved; the certification related that a diligent examination and search had been made of said records for any record of the filing of an Address Report Card by defendant for the years 1951 and 1952 and that no such record appeared in said files. There were also these facts in the stipulation from which inferences unfavorable to defendant could be drawn; that he failed to register under the Act of 1940 and he did not attempt to register under the Act of 1952 until advised by his attorney to do so. After introducing the record custodian's certification the Government rested.
The defendant then took the stand in his own behalf and testified that in January of 1951 an attorney he had consulted on the matter had sent him an Address Report Card and that he had filled it out as the instructions thereon directed. He was at that time a newspaper carrier which occupation required him to be on the job very early in the morning. On his way to work one morning at about 1:45 A.M. defendant testified that he stopped outside the William Penn Annex of the Philadelphia Post Office, located in this Court House, hurried into the building, stopped at the first open, lighted, counter window he encountered and either laid the card on the counter or handed it to the man then behind the barred window. He could not remember whether there was anyone attending the window or not, which window it was, or even generally on what date in January this occurred, whether in the first or last half of the month. Ginn then went on to testify that in 1952 he was employed as a milk route deliveryman, which also involved early morning working hours; that sometime before January 7, 1952, his brother procured for him an Address Report Card, which he filled out, and that on his way to work at about 3:45 A.M. he stopped his truck outside the main Philadelphia Post Office, located at 30th and Market Streets. He again, so he testified, hurried into the building, proceeded to the nearest open counter window, and either laid the card on the counter or handed it to an individual behind the window. He again could not remember if there was in fact some one attending the window or which window he approached. Ginn then hurried out of the building. Defendant's wife took the stand but her testimony added little beyond her statement that she had seen the cards which had been procured for Ginn and that she was concerned about the filing thereof in that defendant had not been registered under the 1940 Act.
The jury demonstrated by its verdict that it did not believe that defendant filed the cards. It also could draw unfavorable inferences from his related account of the casual manner in carrying out these transactions and his ostensible failure of memory with respect to an act which was, or should have been, of considerable importance and concern to him.
In support of his motion as to the second and third counts of the information defendant first argues, albeit not very strenuously, that the Government's case totally failed in proving criminal intent. A reading of the statute under which these counts were laid makes it very plain that intent is not an element of the offense thereby created. The proscribed omission is malum prohibitum and bare proof that said omission occurred brings into existence criminal liability under the sanctions set out in the statute. See Landen v. United States, 6 Cir., 299 F. 75, 78; United States v. Gunn, D.C., 97 F.Supp. 476, 480. If this were not patent under the 1940 Act, as amended, it is made perfectly plain in the successor section in the 1952 Act, 8 U.S.C.A. § 1306, wherein simple failure to notify calls for criminal penalties but willful or not reasonably excusable failure to notify may result in deportation.
Defendant's main argument, however, is based on the rule relating to conviction on wholly circumstantial evidence as laid down by the Third and other Circuits. This rule is stated in two different ways. 'In order to justify a conviction of crime on circumstantial evidence it is necessary that the directly proven circumstances be such as to exclude every reasonable hypothesis but that of guilt.' United States v. Russo, 3 Cir., 1941, 123 F.2d 420, 423; United States v. Laffman, 3 Cir., 1945, 152 F.2d 393, 394; United States v. Tatcher, 3 Cir., 1942, 131 F.2d 1002, 1003. "'Unless there is substantial evidence of facts which exclude every other hypothesis but that of guilt, it is the duty of the trial court to instruct the jury to return a verdict for the accused * * *"' Paul v. United States, 3 Cir., 1935, 79 F.2d 561, 563, quoting Yusem v. United States, 3 Cir., 1925, 8 F.2d 6, United States v. Gasomiser Corporation, D.C.Del.1948, 7 F.R.D. 712. To avail himself of the benefit of this rule defendant argues, as he necessarily must, that the only evidence produced by the Government established no more than the single fact that a search was made in the Washington files of the Immigration and Naturalization Service and that no Address Record Cards filed by Ginn were then and there found. Assuming, arguendo, that was all the testimony before the jury in the Government's behalf, a troublesome and disturbing problem is posed. If the rule, stated in either form, is to be interpreted precisely as the words read and if such interpretation is to be inflexibly applied, then the burden of the Government in a number of types of prosecutions has been immeasurably increased. The statute on which this prosecution was undertaken is perhaps an extreme example. There seems to be no other practicable and feasible means of proving that a Record Address Card was not filed (other than out of the defendant's mouth) than to show that it is not present at the place where it would ordinarily and almost inevitably be, had it been filed. The alternative is for a government agent to accompany every alien during every minute of the eleven-day filing period so that the agent can testify that no card was handed to any Post Office clerk. It is equally unreasonable to expect the Government to be able to produce every postal clerk who manned every Post Office window within every alien's possible area of travel during the filing period so that there will be testimony that no such card was in fact delivered. These measures to obtain proof clearly are beyond consideration yet anything less would not satisfy the rule if baldly stated and rigidly applied. Otherwise there is always one hypothesis leading to innocence left open and one that must be conceded not to be clearly unreasonable. This arises from the inescapable truth that our governmental machinery is peopled and operated by human beings who, like all others, are not blessed with infallibility. Certainly no one would be ostracized for holding unreasonable beliefs if he asserted that a card presented to one government servant and which must pass through the hands of three or more others who are employees of who different agencies could very possibly be lost, mislaid, or misdirected so that it did not reach its intended destination. Happily, such miscarriages of communication are not common *fn2" but there are few persons who do not either directly know, or who have not learned from reliable sources, of at least one such occurrence.
The very effective bar to prosecution by the rule, standing alone, is not limited to actions brought under this statute. Income tax evasion actions prosecuted on the net worth theory would be largely foreclosed if the defendant remained mute and the Government was required to negate beyond peradventure of doubt the existence of every source of income which is possible and reasonable as a matter of law. The rule has also been stated to be applicable in the proof of each element of an offense and if proof within the scope of the rule as to each element is not produced the case must therefore fall, United States v. Gasomiser Corp., supra. Hence, where an act is not per se illegal but is punishable only when perpetrated in pursuance of a conspiracy or scheme to defraud, proof of the scheme itself or of the conspiracy both may be an element necessary to conviction. By the very nature of the circumstances under which such motives take shape or agreements arise, proof of them is almost necessarily circumstantial. It is rare that there is not a singe conceivable reasonable hypothesis leading to innocence left unstopped. The fact that such actions are successfully prosecuted and the existence of comparatively few reported cases in which the rule is invoked as ground for reversal on appeal at least leads toward the conclusion that the rule is not applied as its language may lead one to believe it is possible of being applied. A study even of the cases cited and relied upon by defendant leads further toward the same conclusion.
In United States v. Russo, supra, the defendant was charged with possession of goods stolen in interstate commerce. He and his partner operated a garage and also a trucking business. The partner managed the garage and Russo drove one of the three partnership trucks. Russo entered the garage only occasionally, usually only to receive his share of the receipts. The other two trucks, which Russo did not drive, were usually standing parked in the garage. The stolen goods were found concealed in one of these trucks. The partner pleaded guilty to possession. There was no evidence that Russo had been in the garage from the time of the theft to that of the recovery. Defendant's possession was therefore only constructive and that only because he partly owned the truck on which the goods were found. There was no evidence that he had been near that truck. The Government contended that his knowledge of the source of the goods must follow from this implied possession. Judges Maris, Jones and Goodrich, in an opinion by Judge Jones, reversed the conviction. The rule as to eliminating every reasonable hypothesis but that of guilt was quoted and it was stated that the rule had not been satisfied. As to that there can be no dispute on the facts there present. The court went on to state, however, 123 F.2d at page 423, that there was, 'an utter want of any evidence as to defendant's knowledge that the property was stolen * * *', and this was also certainly true. This being so an element of the offense was totally unsupported by evidence, a prima-facie presentation of the crime had not been made out and the case should in nowise have gone to the jury. It could also have ...

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