United States v. Lutwak. United States v. Knoll. United States v. Treitler

195 F.2d 748

• Court: Court of Appeals for the Seventh Circuit
• Decided: April 16, 1952
• Docket: 10326-10328
• Status: Published

Opinions

LINDLEY, Circuit Judge.

Marcel Max Lutwak, Munio Knoll, alias Zygmunt Romankiewicz, and Regina Treit-ler were indicted jointly with Leopold Knoll, who was found not guilty, and Grace Klemtner, dismissed by the court, upon a count charging conspiracy to commit offenses against the United States, that is, to violate Sections 180a and 220(c),¹ Title 8 U.S.C.A., each of which forbid obtaining entry into the United States by a willfully false or misleading representation, statement or document required by the immigration laws; and to defraud the United States of its governmental functions and its right to administer its immigration laws, by effectuating the illegal entry of three aliens into the United States as spouses of United States citizens having honorable discharges from service in the Armed Forces of the United States during the Second World War, as provided by Section 232, Title 8 U.S.C.A. commonly known as the War Bride Act. Counts charging substantive offenses and aiding and abetting were dismissed for lack of proof of proper venue. Lutwak, Knoll and Treitler were found guilty and sentenced by the court and have perfected this appeal. We are concerned only with the charge of conspiracy and the proceedings thereunder.

In substance the conspiracy count charged that the parties conspired to have Marcel Lutwak, Bessie Osborne and Grace Klemtner, each of whom was an honorably discharged veteran of the Second World War, proceed to Paris, France, and there falsely pretend to marry respectively Maria Knoll, Munio Knoll and Leopold Knoll, all three of whom were of foreign nationality, and to bring them into this country as spouses of the veterans and thus to violate the immigration quota laws. It is readily apparent that an essential element of the crime charged lay in the averment that the three Parisian ceremonies were in fact not true marriages but spurious in character, for, if valid marriages came into being, the fact that the motives back of them were entries into this country would be wholly immaterial. Consequently, the contest in the trial court centered largely about these two factual questions, viz., did defendants conspire and, if so, did the government prove by competent evidence that the marriages were in fact invalid.

In so far as the issue of common purpose and design is concerned, we think it clear that the court properly overruled the motion for acquittal and submitted the issue to the jury. The evidence, in its aspects most favorable to the government, warranted a jury finding that the following are the facts. Regina Treitler, a sister of Munio Knoll and Leopold Knoll and an aunt of Marcel Lutwak, in 1947 was living in Chicago; her nephew Lutwak also lived in that city. The two male Knolls, brothers of Treitler and uncles of Lutwak, were in Paris. Maria Knoll was likewise in Paris. She had been married to Munio Knoll in 1932.² Mrs. Treitler, in the summer of 1947, inquired of a friend, Anne Zapler, whether the latter knew of veteran girls who would be willing to go to Europe to marry her brothers and bring them to the United States, telling her that they had been in concentration camps and were in a sorry plight. Mrs. Treitler said that “they” wanted someone who had been in service; that she would 'see that the girls’ ways were paid; that the marriages need not he consummated, and that divorces could foe obtained after six months. Lut-wak also talked to Mrs. Zapler about the suggested action. Following these conversations, in September, Mrs. Zapler introduced Bessie Osborne to Lutwak as an ex-Wave, who, later the same month, told Mrs. Zapler that Osborne had consented to go and that “they” were happy about it. During the summer, in August, Lutwak went to Paris, there married his aunt, Maria Knoll, the undivorced or divorced wife of his uncle Munio, and brought 'her to America as a war bride, leaving her husband or former husband, his uncle, in Paris with his brother, Leopold Knoll, who had been present at this ceremony. Shortly later Lutwak told Mrs. Zapler that Bessie Osborne 'had consented to go to Paris. Mrs. Treitler also talked to Grace Klemt-ner, telling her that she, Treitler, was going to Paris, and proposed that Grace do likewise.

Lutwak told Osborne that his family wanted to bring his Uncle Leopold to the United States; that he was in search of a woman who had been in service to marry this uncle and bring him into this country; that he would pay $1000 and that within six months she could have a divorce. Treitler told her substantially the same. Lutwak also said to her that he had another uncle in Paris, Munio Knoll, who was married and whose wife was in America and that the family wanted to effectuate a reunion between the two. We bear in mind that shortly before that time, Lutwak had gone through a marriage ceremony with Maria, his aunt, whom, he told Osborne, he desired to reunite with her husband, his Uncle Munio, by bringing the latter to America. He then asked Osborne if she would marry Munio instead of Leopold. He agreed to pay her $500, and did pay for clothes she bought for the trip. What we have recounted is not a complete narration of all the facts and circumstances of record up to November 1, 1947, but will serve as a brief resume of the salient essentials.

Following the eyents related, Mrs. Treit-ler and Bessie Osborne went, on October 25, 1947, by airplane, to Paris, where, for the first time, Osborne met Munio Knoll. On November 3, she participated in a marriage ceremony with him. The two remained in Paris, living at different places, until November 12, 1947, when, after having ostensibly complied with the requirements of the War Bride Act, they left Paris by airplane for Chicago. Before they left, Treitler promised Osborne $1000. During her stay in Paris, Osborne attended the marriage ceremony of Grace Klemtnei and Leopold Knoll, the latter of whom Lut-wak had first suggested she marry. Upon her return to Chicago, Lutwak, in Munio’s presence, gave her a check for $1000.

On November 1, 1947, one week after .Treitler and Osborne left this country, Grace Klemtner 'followed them by air. She took with her her discharge from the army. There on November 2 or 3, she met, for the first time, Leopold Knoll. On November 6, she married him. While in Paris, she and Leopold lived at different hotels; 'and, very shortly, she proceeded, unaccompanied, to England for a short visit. She returned to New York in December, 1947. Leopold entered New York under the provisions of the War Bride Act, in early December 1947. The two did not live together. She proceeded immediately to California where she remained until she appeared before the grand jury in Chicago, about April 1, 1950. After that time, she testified, she lived with him.

From this evidence the jury was fully justified in finding that a concerted scheme was hatched in the summer of 1947 by the prime movers, Lutwak and Treitler, whereby they would obtain, by means of marriages with the three veterans, entry of their three relatives into this country; that this plan sprang from the brains of the two and was communicated to and joined by the girls and the aliens; that it culminated in the entries claimed to be illegal. Here was evidence of a common design, carried into execution by the interrelated, coordinated conduct of the several parties, who progressively pursued the one object. In the face of this evidence, we can not say, as a matter of law, that there was more than one scheme, for it was sufficient to justify the jury in finding that there was one over-all common design and purpose. Thus, in Braverman v. United States, 317 U.S. 49, at page 54, 63 S.Ct. 99, at page 102, 87 L.Ed. 23, the court said: “The allegation in a single count of a conspiracy to commit several crimes is not duplicitous, for ‘The conspiracy is the crime, and that is one, however diverse its objects’. Frohwerk v. United States, 249 U.S. 204, 210, 39 S.Ct. 249, 252, 63 L.Ed. 561; Ford v. United States, 273 U.S. 593, 602, 47 S.Ct. 531, 534, 71 L.Ed. 793; United States v. Manton, 2 Cir., 107 F.2d 834, 838. A conspiracy is not the commission of the crime which it contemplates, and neither violates nor ‘arises under’ the statute whose violation is its object. United States v. Rabinowich, supra, 238 U.S. [78], 87-89, 35 S.Ct. 682, 684, 685, 59 L.Ed. 1211; United States v. McElvain, 272 U.S. 633, 638, 47 S.Ct. 219, 220, 71 L.Ed. 451; see United States v. Hirsch, 100 U.S. 33, 34, 35, 25 L.Ed. 539. Since the single continuing agreement, which is the conspiracy here, thus embraces its criminal objects, it differs from successive acts which violate a single penal statute and from a single act which violates two statutes. See Blockburger v. United States, 284 U.S. 299, 301-304, 52 S.Ct. 180, 181, 182, 76 L.Ed. 306; Albrecht v. United States, 273 U.S. 1, 11, 12, 47 S.Ct. 250, 253, 254, 71 L.Ed. 505.” See also Blumenthal v. United States, 332 U.S. 539, 558, 68 S.Ct. 248, 92 L.Ed. 154; Ford v. United States, 273 U.S. 593, 602, 47 S.Ct. 531, 71 L.Ed. 793; United States v. Rabinowich, 238 U.S. 78, 87-89, 35 S.Ct. 682, 59 L.Ed. 1211; United States v. Coplon, D.C.N.Y., 88 F.Supp. 912. The evidence relied upon by the government reflected substantial basis for the finding of the jury, which necessarily determined by its verdict that the defendants understood and knowingly participated in a coordinated scheme of conduct. Thus, as the Supreme Court said in American Tobacco Company v. United States, 328 U.S. 781, 809-810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575, “Where the circumstances are such as to warrant a jury in finding that the conspirators had a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement, the conclusion that a conspiracy is established is justified.” See also United States v. Masonite Corporation, 316 U.S. 265, 275, 62 S.Ct. 1070, 86 L.Ed. 1461; United States v. Mack, 2 Cir., 112 F.2d 290, 292-293; United States v. Harrison, 3 Cir., 121 F.2d 930, 934; Allen v. United States, 7 Cir., 4 F.2d 688, 691.

However, before the jury could properly conclude that the scheme became an illegal conspiracy, it was necessary that the evidence be sufficient to justify a conclusion that the three marriages were void, — of no legal effect, and that they were so intended, for, if they were valid, the government cannot complain. In other words, whatever the motives of the participating parties in getting married, if they had bona fide intentions to enter into the marital relation, they had a perfect right to invoke the provisions of the War Bride Act in gaining access to this country. We are confronted, then, with the crucial question of whether the evidence justified a finding that the so-called marriages were void.

A sham marriage, void under the law of this country as against public policy, can have no validity. Lincoln v. Riley, 217 Ill.App. 571. In the language of the Second Circuit, in United States v. Rubenstein, 151 F.2d 915, 918, where the court cites many authorities: “Mutual consent is necessary to every contract; and no matter what forms or ceremonies the parties may go through indicating the contrary, they do not contract if they do not in fact assent, which may always be proved. * * * Marriage is no exception to this rule: a marriage in jest is not a marriage at all.” The court proceeded: “if the spouses agree to a marriage only for the sake of representing it as such to the outside world and with the understanding that they will put an end to it as soon as it has served its purpose to deceive, they have never really agreed to be married at all. They must assent to enter into the relation as it is ordinarily understood, and it is not ordinarily understood as merely a pretence, or cover, to deceive others.” Furthermore a marriage void ab initio is void for all purposes and has no standing in court. McCullen v. McCullen, 162 App.Div. 599, 147 N.Y.S. 1069, 1071; Hooper v. McCaf-fery, 83 Ill.App. 341, 356-357; McClurg v. Terry, 21 N.J.Eq. 225.

Bearing in mind the principles enunciated, we examine briefly the evidence bearing upon this issue. The intent of the parties is largely reflected by what we have said as to their actions culminating in the entries into the United States. We have seen the design of Treitler and Lutwak to send veterans, including Lutwak himself, to Europe to marry their three relatives and bring them in as spouses of those veterans; we have observed their statements to the two women, Osborne and Klemtner, that they would be paid for their services, that the marriages need not be consummated, that they could obtain divorces within six months; that Lutwak proposed at first that one girl marry one uncle and later suggested that she marry the other one; that he suggested that one uncle, Munio, be brought to America to reunite with his wife, though shortly before, Lutwak, a veteran, had himself gone through a marriage ceremony with that wife and brought her from Europe as a •war bride, and that the girls knew their proposed bridegrooms not at all. In addition, there was evidence that Maria, after entry as the purported bride of Lutwak, lived with her former husband Munio after he was brought in, though the latter had gone through a purported marriage with Osborne, and after she, Maria had herself, gone through a purported ceremony with Lutwak; that she was later divorced from Lutwak; that Osborne never lived with her purported husband, Munio Knoll; that about six months after their purported marriage, when she proposed divorce, he asked her to wait until he could be naturalized; that, finally, despite his request in November, 1950, she filed suit for divorce, which he requested her to delay until after the trial of this cause; that Klemtner, (called as a court witness), testified that she never received a wedding ring from Leopold; that she and he lived separate and apart in Paris and in America, until she appeared as a witness before the grand jury in 1950, when, for some unexplained reason, she began to live with him. Many circumstances corroborating or cumulative to the foregoing appear in the record.

In the present case the court charged the jury fully and correctly as to the law, substantially in the words quoted from United States v. Rubenstein, supra, and advised the jurors that it was a question of fact for them to determine from the evidence whether at the times the aliens entered the United States the respective parties were in fact married and were entering as man and wife, and that, in determining that question, they should bear in mind the legal principles mentioned. By its verdict the jury has settled the question.

Defendants urge that the court erred in calling Grace Klemtner as a court witness and in permitting the government to cross-examine her. In the -course of the trial, the United States Attorney said to the court that Grace Klemtner, who, it had been alleged had gone through a marriage ceremony with defendant Leopold Knoll and “is a person who could be considered as a witness” was present but that the government would not vouch for her truthfulness and veracity and did not desire to put her on the stand as its witness and asked whether the court felt it -should call her. The court remarked that she had been a, defendant whose constitutional rights he thought had been invaded and that he had accordingly discharged her, but that the 'evidence indicated that she was a witness to certain things in which the court was directly concerned and that, therefore, it should and would call her as its witness.

We see no error in this respect, Indeed, it is generally recognized that where there is a witness to a crime for whose veracity and integrity the prosecuting attorney is not willing to vouch, he is not compelled.to call the witness, but that the court, in its discretion, may do so and allow cross-examination by both sides within proper bounds. This rule was expounded at some length in the case of Litsinger v. United States, 7 Cir., 44 F.2d 45, and in Chalmette Petroleum Corp. v. Chalmette Oil Dist. Co., 5 Cir., 143 F.2d 826; what is said there is controlling here.

Defendants insist that the court unduly restricted their cross-examination of the witnesses Joseph Ludmer and Maria Knoll. In examining the latter, the government did not carry its direct examination beyond a showing of the fact that there had been an earlier marriage. Defendants sought on cross-examination to go beyond the scope of the direct examination and to go into the question of a sabbatical divorce between her and Munio, of the hotels most frequented in Paris by displaced persons, of how she arrived in Paris, of why her husband had changed his name and into other matters far beyond the scope of the direct examination. The court advised counsel that his questions were not within the scope of proper cross-examination but that if he wished to use the witness later as his own to- prove the facts then sought to be elicited, he would have an opportunity to do so. To some of defendants’ questions put to Ludmer the court sustained objections. Thus, one question was, “This is not the first time you have turned people into the authorities, is it?” At another point, he was asked whether he had discussed a certain letter from Mrs. Ludmer to Munio Knoll. He testified that he had no knowledge that the letter was sent, that he did not know it was going to be mailed and that, before it was sent, if it was sent, he had no conversation with his wife relative to sending it. What he and his wife may have said to each other, the court thought, was wholly immaterial. In another instance, the court refused to allow counsel for defendants to ask Ludmer where his wife could be found, in the event they chose to subpoena her as a witness. All the matters to which defendants refer were clearly beyond the scope of the direct examination. We conclude that the action of the court was within the principles approved by this court in United States v. Glasser, 7 Cir., 116 F.2d 690, and United States v. Hornstein, 7 Cir., 176 F.2d 217.

We have examined defendants’ objections to the charge to- the jury and have read the charge in its entirety. It was thorough and complete, covering every phase of the case, impartially and freely. It demonstrated an earnest effort upon the part of the trial court to instruct the jury as to- each possible defense suggested by the defendants. The language we have heretofore used in United States v. Fleenor, 7 Cir., 162 F.2d 935 and United States v. Kaadt, 7 Cir., 171 F.2d 600, is applicable.

Complaint is made that the court permitted evidence of events in America subsequent to the entries. When we remember that this case turned almost entirely upon the question of the validity of the Parisian marriages and that whether they were valid, in turn, depended upon the intent of the parties at the time the ceremonies occurred, it is clear that not only what was said and done prior to the time of the marriages, but that the conduct of the parties and their statements after they returned to America were relevant and competent for the jury to consider in determining whether in fact they -reflected an intent to have performed valid marriages or whether they tended to show that the intent was merely to pretend to be married.

Defendants argue that this case illustrates a merger of a conspiracy with substantive offenses and that, therefore, a verdict of guilty of conspiracy can not be sustained. The rule that if two or more persons jointly commit a crime, they may not be convicted of a conspiracy to -commit it, does not apply where parties other than the persons who commit the substantive offense have joined in a conspiracy to bring it about. Obviously, if more than one commit a crime there may be others engaged in a -conspiracy to have it committed who do not themselves take part in its commission. So here Treitler was not a party to any one of the invalid marriages or to the false statements made thereafter to the immigration authorities, which constituted the essential events comprising the substantive offenses, but, under the government’s evidence, she participated in, if she did not actually originate, the scheme to have the substantive offenses committed. Moreover the conspiracy contemplated not only a course of conduct culminating in one illegal marriage but three. Each ceremony was between different parties, yet the conspiracy contemplated that the several actors should commit the several substantive offenses. Hence, we conclude there was no merger of the offenses and that the rule expressed in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489 applies. “It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of Congress to separate the two and to affix to each a different penalty is well established.”

The judgment is affirmed.

1 . Included in 1948 Revised Criminal Code, 18 U.S.C.A. § 1546.

2 . Whether she had been legally divorced from him is not determinable from the record.