Smith, Hays and Feinberg, Circuit Judges.
This is an appeal from a conviction under 18 U.S.C. § 1407, a seldom litigated section of the laws governing narcotics, which deals with border crossings by addicts or narcotics laws violators. Although appellant William Wiley Jones raises basic constitutional issues, it is unnecessary to decide them. Because the Government failed to follow its own regulation, appellant's conviction must be reversed.
18 U.S.C. § 1407, printed in full below,*fn1 inter alia, makes it a felony for an American citizen to depart from or enter the United States without registering under such rules as the Secretary of the Treasury prescribes if such person is a narcotics addict or user or has ever been convicted of violation of any state or federal narcotics law for which the penalty is imprisonment for more than one year. The statute prescribes that when such person leaves the United States, a customs official shall issue him a certificate, which he shall surrender upon return. The Regulation promulgated under the statute, 19 C.F.R. § 23.9a (1966), provides that upon leaving the country a citizen subject to the statute must register on customs Form 3231, "Registration Certificate of Narcotic User or Violator," the original of which is given to the registrant. Upon return, he must register again by signing the original and surrendering it to a customs officer. The Regulation sensibly goes on to deal with loss or non-possession of a certificate at the time of re-entry, possibilities left open by the statute, by providing that:
If the person seeking to register did not obtain a registration certificate on leaving the United States, or, having obtained a certificate, has lost it or for any reason he cannot present the certificate, he shall register on customs Form 3231 supplied by the customs officer immediately at the first port of arrival in the United States, and surrender the completed form to the collector of customs.
Jones was tried by Judge Edmund Port and a jury in the United States District Court for the Northern District of New York on two counts for violation of the statute and the Regulation. Taking the indictment in its reverse order, Count II charged Jones with failing to register when he left the United States for Canada on or about September 15, 1964, at or near Champlain, New York. Count I charged Jones with failing to register and with failing to surrender the certificate required to be obtained upon leaving the United States when he returned to the United States at Rouses Point, New York on or about July 13, 1965. The jury found Jones guilty on Count I but not guilty on Count II. Judge Port imposed a two-year sentence on defendant.
Since appellant was acquitted of failing to register when he left the United States (Count II), the focus on appeal is his conviction for failing to register on his return (Count I). It is undisputed that Jones had been convicted of a narcotics offense in 1956 and sentenced to two years in prison.*fn2 Sometime prior to July 13, 1965, Jones went to Canada. On that date, he was deported from that country; Canadian officials put Jones on a train from Montreal bound for New York and kept him in custody at least until the last Canadian stop was reached. Having been alerted by Canadian officials, two United States customs agents, Gardner and Cornetta, boarded the train when it stopped at Rouses Point, New York, the first American border customs station on the rail line, and questioned Jones. Their testimony was substantially the same. They asked Jones who he was and where he was going; without equivocation he gave his name and destination (New York). Upon further inquiry, Jones also readily agreed that he was the same person who had been convicted in Connecticut in 1956, and named the place where he had left the United States for Canada. When asked if he had a registration certificate, Jones replied that he did not, but claimed that he had no obligation to register since his narcotics conviction stemmed from a crime committed over ten years ago. Agent Cornetta told Jones that there was no such exemption in the law and had him read a "warning" sign concerning 18 U.S.C. § 1407 on the wall in the customs office. Jones repeated his erroneous view that the time lag excused him from registering and added that the law had been so explained to him once by a customs agent in Washington. Jones was then arrested.
On cross-examination, Agent Cornetta stated that customs Form 3231 was available at the customs office. Both Cornetta and Gardner admitted however that they did not at any time offer to supply one to Jones. Their specific responses are significant.
Q. Well, you went through all this trouble to explain what the law was, yet you didn't hand him a form prescribed by Customs officers? A. That is correct.
Q. But you arrested him, did you not, for failing to sign that form? A. Among other things, yes, sir.
Q. And you never even presented the form to him? A. It is not my job. I can't force a person to do anything. It is unconstitutional.
Q. When Mr. Jones came into the Customs office and you found out he had no certificate to surrender, did you hand him the Form 3231 ...