Before BIGGS, Chief Judge, and FORMAN and GANEY, Circuit Judges.
The following appears in the record in this case tried with a jury in the court below. The single-count indictment charged the defendant-appellant, Garnett Bowles, as follows: "That [he] on or about the 27th day of September, 1962, at East Orange, in the State and District of New Jersey, * * * an alien and citizen of Canada, was found in the United States, after he had been previously arrested and deported from the United States, on July 14, 1953, October 17, 1958, and September 4, 1962. In violation of Section 1326, Title 8 U.S.C." He was found guilty as charged and has appealed.
On February 6, 1951 a warrant for the deportation of Bowles was issued by the District Director of the Buffalo District of the Immigration and Naturalization Service, the warrant commanding that he be deported to Canada. The provisions of the laws of the United States under which the deportation was ordered have been covered up by a piece of cardboard placed on the warrant and do not appear. The back of the warrant is also covered with a smaller piece of cardboard and shows, contradictorily, that it was executed via the Peace Bridge at Buffalo, New York, on August 9, 1951 and also via the Peace Bridge on July 14, 1953*fn1
On the 15th day of February 1957 another warrant was issued by Edward J. Shaughnessy, District Director of the New York District of the Immigration and Naturalization Service, ordering Bowles' deportation. The provisions of the laws of the United States under which the deportation was ordered also have been covered up in this warrant by a piece of cardboard placed on the warrant and do not appear. The back of the warrant shows that it was executed at the Port of New York on October 17, 1958.
Another deportation warrant was issued on January 5, 1961 by P. A. Esperdy, District Director of the New York District of the Immigration and Naturalization Service, and shows on its face that Bowles was subject to deportation under "Section 241(a) (1) of the Immigration and Nationality Act, in that, at time of entry * * * [he was] within one or more of the classes of aliens excludable by the law existing at the time of such entry, to wit, aliens who have been arrested and deported, consent to apply or reapply for admission not having been granted by the proper authority under sec. 212(a) (17) of the Act." The back of this warrant shows that it was executed on September 4, 1962 at the Port of New York.
The warrants referred to were introduced in evidence by the United States.
There were also introduced in evidence certificates of the non-existence of any record of the Immigration and Naturalization Service showing that Bowles had been naturalized as a citizen of the United States and also a certificate of non-existence of any record showing that he had made any application for permission to reapply for admission into the United States or that any permission for reentry had been granted him after deportation from the United States. Also included in the evidence is a photostatic copy of a birth certificate showing that Garnet Jesse Bowles was born in Canada in 1920.
The record includes as well a duplicate petition for naturalization signed and executed by Bowles under the name of "Garnett J. Bowles, Sr." which recites his nationality as "British" and states that his last place of foreign residence was Owen Sound, Ontario, and that he entered the United States on September 8, 1920. It also recites that he was inducted into the United States Army on April 16, 1943, at Cleveland, Ohio, and was honorably discharged on January 14, 1944*fn2
At the trial the Government proved that on September 27, 1962 when Bowles was apprehended in East Orange, New Jersey, he admitted that he was born in Owen Sound, Ontario, Canada, that the date of his birth was June 8, 1920, and that his name was Garnett*fn3 Bowles.
The United States also proved through Deportation Officer Santasiero that he deported Jesse Bowles to Canada on October 17, 1958 by placing him on a Trans-Canada Airlines plane which departed from the Port of New York with Bowles on board. Deportation Officer Anderson testified that he deported Bowles to Canada from the Port of New York on September 4, 1962 by placing him on a Trans-Canada Airlines plane, flight 207, and that he saw the plane take off and it did not return to the airport.
It appears from the record that the covering of portions of the deportation warrants by pieces of cardboard, referred to in the second and third paragraphs of this opinion, was done by direction of the trial judge at the request of Bowles' attorney, it being then and now the position of Bowles that he was entitled to attack the deportation orders and warrants collaterally. It will be remembered that the typewritten provisions of the Immigration and Nationality Act under which Bowles was deported were not covered up in the deportation warrant issued on January 5, 1961 and referred to in the fourth paragraph of this opinion.
At the close of the evidence Bowles made a motion for judgment of acquittal pursuant to Rule 29, Fed.R.Crim.Proc., 18 U.S.C. His counsel, appointed by the court below, stated Bowles' position as follows: "The government has failed to establish guilt at any point. That the original deportation we contend was unlawful and we believe until they show that the original deportation was lawful and valid that these repeated entries would be vitiated if the initial deportation was invalid." (Emphasis added.)
The court then said: "In other words, is it your legal position, * * * that if a person came into this country and then it was alleged that he was either in this country illegally or he had committed some act that made him subject to deportation, he is given a hearing thereon, let us say for example it possibly took a month or six weeks to try and then after all the appropriate appeals and legal procedure, legal and administrative procedure he was deported, each time he would come back illegally in this country and the Government would bring a charge of being here illegally and attempt to deport him, that they would have to open the original hearing and conduct it all over again and put it into issue as to whether or not he was legally deportable?" Counsel for Bowles replied: "No, I do not say that, your Honor." The court then asked: "Well that is the effect of your motion, is it not?" Bowles' ...