The opinion of the court was delivered by: NEAHER
Defendant has moved to dismiss an indictment charging him with possessing and uttering a document required for entry into the United States, knowing the same to have been procured by fraud and unlawfully obtained in violation of 18 U.S.C. § 1546 (1970). Defendant's motion principally focuses on the fact that the document in question is a Colombian passport. Whether a foreign passport is a "document required for entry into the United States" within the meaning of § 1546 appears to be a question of first impression, the determination of which may be made without a trial of the general issue.
For purposes of this motion, the parties have stipulated to the following facts:
On or about February 15, 1973, defendant sold a Colombian passport to one Sanchez, an undercover agent of the United States Bureau of Customs. Defendant was then employed as a porter/clerk in the New York City office of the Consul General of Colombia. The passport in the name of one Jhon Jairo Valdes Nunez had been turned over to the consulate on July 6, 1971 by a woman whose son had found it in a subway. Apparently the passport had been lost and never reclaimed. It had been issued on March 25, 1970, and while it was still in force, its initial validation had expired on March 25, 1972 and had not been revalidated.
Defendant at the time of the sale was not authorized by his superior to sell the passport, and the sale was a violation of the laws, regulations or procedures controlling the operations of the consulate and the duties of employees.
The first paragraph of § 1546, upon which the indictment is found, reads as follows
"Whoever, knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, or document, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained . . .
"Shall be fined . . . or imprisoned . . . ."
In defending the indictment and opposing the motion to dismiss, the government takes the position that the phrase "other document required for entry into the United States" comprehends a Colombian passport. It relies heavily on 8 C.F.R. § 212.1 (1973), which provides in pertinent part that "an unexpired passport . . . shall be presented by each arriving nonimmigrant alien . . . ."
The government further argues that the purpose of the statute warrants its application to the circumstances of this case.
The history of § 1546, the terms of the statute itself, the language of other sections of the Immigration and Nationality Act of 1952 which amended it, as well as the provisions of other sections of 18 U.S.C. which were enacted together with it, convince the court that the phrase in question is limited to documents which are exclusively entry documents issued by the United States.
The offenses proscribed in § 1546 originated in § 22 of the Immigration Act of 1924, Ch. 190, 43 Stat. 165.
The offenses specified in § 22 related to "immigration visa or permit." The term "immigration visa" was defined in the 1924 Act as "an immigration visa issued by a consular officer under the provisions of [the] Act." § 28(d), 43 Stat. 168. The term "permit" was defined "as a permit issued under section 10 [of the Act]."
§ 28 (k), 43 Stat. 169. This provision was codified in 8 U.S.C. § 220 (1940). In 1948 it was transferred to 18 U.S.C. § 1546 as part of the general recodification of Title 18. That section, entitled "Fraud and misuse of visas and permits," continued to be concerned with offenses related to an "immigration visa or permit," ch. 645, 62 Stat. 771. There was no change suggesting that the documents involved comprehended any that were not issued by appropriate officers of the United States.
In 1952, § 1546 was amended by § 402(a) of the Immigration and Nationality Act of 1952, ch. 477, Title IV, 66 Stat. 275. As amended, the statute is captioned "Fraud and misuse of visas, permits, and other entry documents," and by its terms is related to " any immigrant or nonimmigrant visa, permit, or other document required for entry into the United States." The addition of the word "nonimmigrant" apparently reflects the fact that the 1952 Act in § 221 and § 222, 66 Stat. 191-194, 8 U.S.C. §§ 1201 and 1202, made for the ...