United States v. Cores
Opinion of the Court
delivered the opinion of the Court.
The sole issue in this appeal is whether an alien crewman who willfully remains in the United States in excess of the 29 days allowed by his conditional landing permit, in violation of § 252 (c) of the Immigration and Nationality Act,
The information, filed in the United States District Court for the District of Connecticut, charged that appellee entered the United States at Philadelphia on April 27, 1955, and that 29 days later, at the expiration of his conditional landing permit, he “did wilfully and knowingly remain in the United States, to wit: Bethel, Connecticut,” in violation of § 252 (c) of the Immigration and Nationality Act. A plea of guilty was entered, but a government attorney informed the court prior to sentencing that appellee was not in Connecticut at the expiration of his permit as charged in the information, but that in fact he came to Connecticut only after spending about a year in New York. The judge permitted withdrawal of the guilty plea and dismissed the case. He cited an earlier decision of the same court holding that § 252 (c) did not define a continuing crime, United States v. Tavares, No. 9407 Crim., May 6, 1957, and indicated that the information was brought in an improper district since appellee was not in Connecticut at the time his permit expired.
Unlike some statutory offenses,
Section 252 (c) punishes “[a]ny alien crewman who willfully remains in the United States in excess of the number of days allowed.” The conduct proscribed is the affirmative act of willfully remaining, and the crucial word “remains” permits no connotation other than continuing presence. Nor does the section necessarily pertain to any particular locality, such as the place of entry, for the Act broadly extends to willfully remaining “in the United States.”
The legislative history is not inconsistent with this interpretation of the statute. After a thorough investigation of our immigration laws completed some two years prior to the enactment of § 252 (c), the Senate Committee on the Judiciary reported, “The problems relating to seamen are largely created by those who desert their ships, remain here illegally beyond the time granted them to stay, and become lost in the general populace of the country.” S. Rep. No. 1515, 81st Cong., 2d Sess. 550. The tracing of such persons is complicated by the obscuration worked both by their own movement and by the passage of time. In this atmosphere the Congress sought to establish sanctions for alien crewmen who “willfully remain,” the Senate Committee having observed that traditional remedies for the problem were inadequate because many crewmen “do not have the necessary documents to permit deportation.” Ibid. It is hardly likely that the Congress would create the new sanction only to
Moreover, we think it not amiss to point out that this result is entirely in keeping with the policy of relieving the accused, where possible, of the inconvenience incident to prosecution in a district far removed from his residence. See Hyde v. Shine, 199 U. S. 62, 78 (1905); Johnston v. United States, 351 U. S. 215, 224 (dissent) (1956). Forcing an alien crewman to trial in the district where he was present at the expiration of his permit could entail much hardship. By holding the crime here to be a continuing one we make a valuable tool of justice available to the crewman. Rule 21 (b) of the Federal Rules of Criminal Procedure provides for transfer of the proceeding to another district on motion of the defendant if it appears that the offense was committed in more than one district, and “if the court is satisfied that in the interest of justice the proceeding should be transferred to another district or division in which the commission of the offense is charged.” The rule, with its inherent flexibility, would be inapplicable absent characterization of the offense as continuing in nature.
Reversed and remanded.
66 Stat. 221, 8 U. S. C. § 1282 (c). Subsection (a) authorizes immigration officers to grant permits, on certain conditions, allowing alien crewmen to land for periods up to 29 days. Subsection (b) details procedures for revocation of permits. Subsection (c) sets out the criminal penalties involved in this case:
“Any alien crewman who willfully remains in the United States in excess of the number of days allowed in any conditional permit*406 issued under subsection (a) shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not more than $500 or shall be imprisoned for not more than six months, or both.”
Appellee suggests that the inconsistency in the date of the offense as alleged in the information and as represented by government
“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed U. S. Const., Art. Ill, § 2, el. 3.
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .” U. S. Const., Amend. VI.
See, e. g., 18 U. S. C. § 659 (theft of goods in interstate commerce) ; 18 U. S. C. § 1073 (flight to avoid prosecution or giving testimony); 18 U. S. C. § 3236 (murder or manslaughter); 18 U. S. C. § 3239 (transmitting or mailing threatening communications); 32 Stat. 847, 34 Stat. 587, 49 U. S. C. §41 (1) (certain violations of Interstate Commerce Act). See 4 Barron, Federal Practice and Procedure, § 2061.
§ 279, Immigration and Nationality Act, 66 Stat. 230, 8 U. S. C. § 1329.
The offense here is unlike crimes of illegal entry set out in §§275 and 276 of the Act. 66 Stat. 229, 8 U. S. C. §§ 1325, 1326. Those offenses are not continuing ones, as “entry” is limited to a particular locality and hardly suggests continuity. Hence a specific venue provision in § 279 of the Act was required before illegal entry cases could be prosecuted at the place of apprehension. 66 Stat. 230, 8 U. S. C. § 1329. This reasoning underlay the request for specific legislation by the Immigration and Naturalization Service. See Analysis of S. 3455, 81st Cong., prepared by the General Counsel of the Service, p. 276-2. In contrast to illegal entry, the § 252 (c) offense of willfully remaining is continuing in nature. A specific venue provision would be mere surplusage, since prosecutions may be instituted in any district where the offense has"’been committed, not necessarily the district where the violation first occurred. The absence of such provision, therefore, is without significance.
Dissenting Opinion
with whom
The decision seems to me to be out of harmony with the statutory scheme of venue which Congress designed for immigration cases. We are here concerned with a crime under § 252 of the Immigration and Nationality Act of 1952, 66 Stat. 163, 220, 8 U. S. C. § 1282; viz. unlawfully remaining in the United States. Sections 275 and 276 describe crimes of unlawful entry. Section 279
“Notwithstanding any other law, such prosecutions or suits may be instituted at any place in the United States at which the violation may occur or at which the person charged with a violation under section 275 or 276 may be apprehended.”
When Congress wanted to lay venue in the district where the accused was “apprehended,” it said so. It would seem, therefore, that venue may be laid in the district where the alien was “apprehended” only in case of the crimes of unlawful entry. All other crimes are to be prosecuted in the district where the violation first occurred. It is no answer to say that this crime is different because it was “continuous.” See In re Snow, 120 U. S. 274, 281. As District Judge Smith said, the distinction drawn by § 279 between venue at the place of violation and venue at the place of apprehension “would be meaningless if violations such as the one in issue were regarded as continuous.” United States v. Tavares, supra.
Moreover, the crime is completed when the conditional permit expires. All elements of the crime occur then. Nothing more remains to be done. It is then and there, Congress says, that the crime is “committed” in the sense that that term is employed in Art. Ill, § 2, cl. 3 of the Constitution and in the Sixth Amendment.
I would affirm the judgment of the District Court.
Congress has made its intent equally clear in analogous situations, see, e. g., 18 U. S. C. § 659, where the possession of certain stolen goods, certainly a continuing illegal status similar to remaining, is made a crime. Section 659 provides in pertinent part: “The offense shall be deemed to have been committed ... in any district in which the defendant may have taken or been in possession of the said money, baggage, goods, or chattels.”
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