decided.: April 18, 1950.
Before AUGUSTUS N. HAND, CLARK and FRANK, Circuit Judges.
FRANK, Circuit Judge.
An alien may violate the statute, 8 U.S.C.A. § 180a, in any one of three ways. He may (1) "enter the United States at any time or place other than as designated by immigration officials", or he may (2) "elude examination or inspection by immigration officials," or he may (3) "obtain entry * * * by a willfully false or misleading representation or the willful concealment of a material fact." The indictment refers to § 180a, but the acts charged in the indictment are solely those coming within item (3) above; and the trial judge in his charge told the jury that defendant was so charged.
On that basis, the evidence was insufficient. For, from defendant's presence in this country, the jury could not properly infer that he must have made false or misleading representations or been guilty of wilful concealment. For all that appears, he might have come in by "eluding" the immigration officers, or might have entered the country at a time or place not officially designated.*fn1