Before GOODRICH, STALEY and HASTIE, Circuit Judges.
This is an appeal by the government from an order dismissing an indictment on motion before trial. The indictment was drawn in two counts. The first charged perjury in testimony at a deportation hearing in violation of Section 1621 of Title 18, U.S. Code, and the second, the filing of a false statement in a deportation proceeding with intent to influence its outcome in violation of Section 1001 of Title 18, U.S. Code.
The circumstances upon which the dismissal was predicated were those disclosed by the allegations of the indictment itself and by the uncontroverted record of certain deportation proceedings. It appeared that in 1953 deportation proceedings were instituted against appellee Larocca, an alien, because he had been convicted of certain crimes since his entry into this country.Larocca then asked for administrative suspension of deportation under Section 1254(a)(1) of Title 8 U.S. Code, which places the granting of such relief within administrative discretion if the alien shows that his moral character has been good during a continuous stay of seven years or more in this country. It was at the hearing before a special inquiry officer on the issues thus raised that the alleged perjury occurred.
The perjury count charges that there came a time during this administrative hearing when Larocca, testifying under oath, had his attention directed to the fact that on February 19, 1948 detectives raided the "Duquesne Vending Company, 324 West Grant Avenue, Duquesne, Pennsylvania", and seized a number of slot machines. Then Larocca's own counsel asked him questions and he answered as follows:
"Q. Did you have anything to do with this business? A. No, sir.
"Q. Is this part of your business? A. No, sir."
The second count, charging a false statement to influence an official proceeding, was based upon an alleged willful misstatement of fact in a formal petition for reopening of the deportation hearing submitted by Larocca about a month after the hearing had closed. The petition contained a categorical assertion that in January, 1948, the assets of the Duquesne Vending Company were sold to Arthur Milligan, and that Larocca thereupon ceased to be a partner in the enterprise.
The indictment charges that Larocca's denial at the deportation hearings, as alleged in the first count, and his affirmative statement, as set out in the second count, were willfully false in that he well knew that at the time of the February, 1948, raid he was still a partner in Duquesne Vending Company. It is further alleged that this relationship was material to the question of moral character during this period which he himself had put in issue.
Additional circumstances were considered by the court in connection with the perjury count. Although the special inquiry officer was authorized to administer oaths and had placed Larocca under oath as a witness, there was some colloquy during the hearing recognizing and making allowance for the possible inaccuracy of certain testimony. Specifically, in answer to a question put by the examining officer shortly after the questions and answers upon which the present perjury charge is predicated, Larocca said: "I am just telling you what happened. These people probably did not have the money. I am not swearing to it. * * *" At another point on the proceeding day, there had been discussion between the examiner and Larocca's counsel about possible inaccuracy in a net worth statement being submitted by the alien.At this point the examining officer said:
"* * * nor would I hold him responsible for lying under oath if his assets would vary substantially on this application from what they actually are."
The foregoing matters considered, the district court dismissed the indictment, stating in its order four grounds upon which the dismissal was predicated:
"1. The testimony of the defendant and the statement submitted by him, as set forth in the indictment are sufficiently consistent with the holding of a partnership interest in the Duquesne Vending Company as to be vague at most, and not clearly false;
"2. The defendant's mere holding of such partnership interest in and of itself is not of such weight in deportation proceedings where 'good moral character' is the ...