APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 79-00029)
Before Aldisert, Van Dusen and Hunter, Circuit Judges.
The major question presented in this appeal from sentence and conviction under 8 U.S.C. § 1326,*fn1 which prohibits the reentry of an alien who has been arrested and deported, is whether the statute of limitations had run prior to return of the indictment. The government contends that DiSantillo was "arrested and deported" in 1962 when he was sixteen years of age and that he subsequently entered the United States as an immigrant on March 23, 1970, with a visa issued by the American Consul General in Naples, Italy. He was interviewed by agents of the Immigration and Naturalization Service in Pittsburgh, Pennsylvania in 1976, and on January 16, 1979, nearly nine years after his entry into the United States, he was indicted under § 1326 on the theory that he made misrepresentations in his visa application. After trial and conviction the district judge imposed the maximum sentence provided by law and refused to release appellant on bond pending an appeal to this court. At the time of oral argument, appellant had already served his sentence and had been released on parole. We now reverse the judgment on the ground that this prosecution was barred by the federal statute of limitations, 18 U.S.C. § 3282,*fn2 at least four years prior to the indictment.
Although we decide this appeal only on the statute of limitations issue, we are not completely satisfied that the government met its burden of proving its case beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 362, 90 S. Ct. 1068, 1071, 25 L. Ed. 2d 368 (1970). On December 10, 1962, DiSantillo, then sixteen years of age, arrived in Baltimore, Maryland on a merchant ship on which he served as a deck boy. DiSantillo was issued a D-1 pass that allowed him to go ashore, but required his return by eight o'clock the following morning. A companion and he then left the ship, did some shopping, and proceeded to Baltimore's railroad station, purportedly to buy some aftershave lotion. While they were at the railroad station, officers of the Immigration and Naturalization Service took them into custody. The government contends that the two aliens possessed one-way tickets to New York City, had insufficient funds to purchase return tickets, and had aroused suspicion when DiSantillo claimed to be delivering shoes to his brother in New York even though he had none in his possession. DiSantillo was taken to the INS office in downtown Baltimore. Once there he was interviewed and served with Form I-99, Notice of Revocation and Penalty, which essentially informed appellant that he was in the United States illegally and that he was to be deported. The document was explained to DiSantillo in both English and Italian, his native language, after which he signed it.
The form did not mention the word "deportation" in its title; it was merely entitled Notice of Revocation and Penalty. This form failed to notify DiSantillo that he had been arrested and deported.*fn3 DiSantillo was returned to the ship and the next morning INS agent Francis H. Curry boarded the vessel and served its captain with INS Form I-259, entitled Notice to Detain, Deport, or Remove Aliens. This form also provided insufficient notice to DiSantillo for three reasons. First, the form was directed to the ship captain, not to DiSantillo. Second, the notice, by means of a box checked by the INS authorities, directed the captain to "Detain (DiSantillo) on Board." Another box on the form, which stated "Deport from the United States," was left blank. Finally, the reason stated on the form for the action against DiSantillo was that he was a "Malafide Crewman under Sec. 252(b) of I & N Act."*fn4 This statement is inaccurate because even under the government's theory, DiSantillo was a bona fide crewman; he was a deck boy on the ship. The captain should have been notified by the INS that the action was being taken, not under the "bona fide crewman" clause of § 252(b), but under the clause alleging that the crewman "does not intend to depart on the vessel . . . which brought him . . . ."
On February 14, 1963, while his ship was docked at Norfolk, Virginia, appellant duly filed Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal. Part of the information requested on this form was whether DiSantillo had been "excluded and deported (less than one year ago)" or "arrested and deported." DiSantillo checked "excluded and deported (less than one year ago)" and asked to reenter the United States as a "visitor (Seaman)." The INS denied his request on June 6, 1963. This reapplication for admission in 1963 is important because it tends to demonstrate that DiSantillo was unaware of the classification the INS had given him.
The record fails to indicate that DiSantillo was ever formally advised that he had been "arrested" in 1962 when he was a sixteen year old youth, or that he had been advised of the formal niceties that distinguish the related concepts of "excluded and deported" and "arrested and deported." Indeed, there is a serious question whether the government proved that DiSantillo was actually "arrested."
The government contends that on February 16, 1970, when applying for an immigrant visa at Naples, Italy, DiSantillo made a false statement by answering "no" to the following question on his application (Form FS-510, printed in English and Italian):
(b) Aliens who seek re-entry within one year of their exclusion from the United States, or who have been arrested and deported from the United States, or removed at Government expense in lieu of deportation, or removed as an alien in distress or as an alien enemy; aliens who procure or attempt to procure a visa or other documentation by fraud or willful misrepresentation; aliens who are not eligible to acquire United States citizenship, or who have departed from or remained outside the United States to avoid United states military service in time of war or national emergency; aliens who have been convicted for violating or for conspiring to violate certain laws or regulations relating to narcotic drugs or marihuana, or who are known or believed to be, or to have been, an illicit trafficker in narcotic drugs or marihuana; aliens seeking entry from foreign contiguous territory or adjacent islands within two years of their arrival therein on a non-signatory carrier; (aliens) who are unable to read and understand some language or dialect; aliens who, knowingly and for gain, have encouraged or assisted any other alien to enter, or attempt to enter, the United States in violation of law; and aliens who are former exchange visitors who have not fulfilled the two-year foreign residence requirement.
Do any of the foregoing classes apply to you? Yes No X (if answer is Yes, explain).
Government Exhibit 1. A visa was issued March 17, 1970, and DiSantillo was duly admitted to the United States at New York on March 23, 1970.
The trial court instructed the jury that the government had to prove three essential elements to establish a violation of 8 U.S.C. § 1326: that appellant was an alien, that he was arrested and deported in 1962, and that on February 24, 1976, he was found knowingly in the United States.*fn5 It seems to us that an ingredient of the government's case in a criminal prosecution under § 1326, based on the foregoing facts, was proof that DiSantillo understood the distinction between "re-entry within one year of their exclusion from the United States" and "arrested and deported from the United States" in his 1970 application for a visa. To prove this ingredient, the government had to prove that DiSantillo had knowledge of an "arrest," i. e., that he had been "arrested and deported" when he was a sixteen-year old juvenile in ...