The opinion of the court was delivered by: NEAHER
This is an omnibus motion to dismiss a 38 count indictment charging defendants, a New Jersey corporation operating restaurants in New York ("Mt. Fuji"), its president and a manager of one of the restaurants, with violations of the immigration laws.
Defendants are charged with inducing the entry of, bringing into, transporting and harboring aliens not lawfully entitled to enter or reside in the United States, the four offenses specified in 8 U.S.C. § 1324(a), and with conspiring to commit those offenses, under 18 U.S.C.§ 371. As a general statement, the government intends to prove that defendants, through their agents, induced and brought over Japanese aliens to work in the New York Mt. Fuji restaurants, met the aliens at the John F. Kennedy International Airport (JFK), and harbored them at their restaurants, providing the aliens with not only employment but food, shelter and other services. The motion is denied in all respects for the reasons which follow.
Evidence Before the Grand Jury
First, defendants move to dismiss the inducement, bringing into and transporting charges (Counts 2-27) on the ground that the government could not have presented evidence to the grand jury of an essential element of the crimes charged, that is, that the aliens who were allegedly induced to enter, brought in and transported were
"not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States." 8 U.S.C. § 1324(a).
Defendants argue that, because the aliens possessed facially valid non-immigrant visas ("tourist visas") at the time of entry, the government must prove that the visas were fraudulently procured, which could only be done by production of the visa application forms before the grand jury.
Preliminarily, absent any suggestion of improper use of the grand jury, the court is unwilling to exercise its discretion and inspect the grand jury minutes to determine if there was proof of a particular element of the offenses. See Costello v. United States, 350 U.S. 359, 100 L. Ed. 397, 76 S. Ct. 406 (1956); United States v. Tane, 329 F.2d 848 (2 Cir. 1964). However, since the visa application forms, which defendants contend are essential, were concededly destroyed by the government and not presented to the grand jury, the court need not address that issue. The contention that the government was required to produce visa application forms is strictly a legal issue which may be addressed on the merits. As the same contention would be reiterated at trial at the close of the government's case the court will deal with it now. As a legal proposition defendants' argument fails.
The government must prove the aliens were not lawfully entitled to enter or to reside in the United States under the terms of any law relating to immigration. One such law makes excludable an alien who "has procured a visa... by fraud or by willfully misrepresenting a material fact." 8 U.S.C. § 1182(a)(19). The government's theory is one of fraud - that the aliens procured and were admitted on tourist visas while their actual purpose and intent at all times was not to tour or visit the United States but to work in defendants' restaurants.Contrary to defendants' position, there is no logical reason why the government should be required to produce the underlying application forms in order to show that the visas were procured by fraud. The aliens are fully competent to testify as to their intent at the time of procurement of the visas.
In re G-M-, 7 I & N Dec. 40 (BIA 1956), on which defendants so strongly rely is not determinative. That was an administrative exclusion proceeding in which the intent of the alien at time of his re-entry into the United States, which had occurred 13 years previously, was at issue. There, Immigration's failure to require the alien to complete the application form made it impossible to prove his intent. Here, the aliens themselves are expected to testify as to their true intent. Moreover, there is no claim that the purpose of the visit as stated on the visas differs from the purpose set forth on the application form. Indeed, the government claims that the real purpose, employment, was never disclosed. Although a State Department regulation does provide that visa application forms are to be retained in consular files, 22 C.F.R. § 41.124(i), the regulation does not specify how long such forms are to be kept, nor does the court perceive that the government should reasonably be expected to keep them ad infinitum. There is no suggestion that the forms were destroyed in bad faith and their absence is not critical, in light of the aliens' expected testimony. In sum, the visa application forms are not essential to proof of procuring visas by fraud.
In addition to expected testimony that the visas were fraudulently procured, the government relies on other statutory provisions to establish that the aliens were not entitled to enter or reside in the United States. These provisions are: first, that the aliens were excludable because they sought to enter the United States by fraud, 8 U.S.C. § 1182(a)(19); second, that the aliens sought to enter for the purpose of performing labor without the requisite certificates, id. § 1182(a)(14); and third, that any alien who is excludable, under § 1182, is deportable, id. § 1251.
At the outset, it cannot be said that the government's proof of such additional violations constitutes an impermissible deviation from its bill of particulars.
The function of a bill of particulars is to furnish a defendant with facts beyond those contained in the indictment to enable him to prepare his defense, to avoid the danger of surprise at trial and to plead double jeopardy. United States v. Kushner, 135 F.2d 668, 673 (2 Cir.), cert. denied, 320 U.S. 808, 88 L. Ed. 488, 64 S. Ct. 32 (1943). It does not entitle a defendant to disclosure of the government's evidence or of its legal theories. United States v. Fruehauf, 196 F. Supp. 198 (S.D.N.Y. 1961). That is what was requested here.
The government claims, as stated in its bill, that the visas were fraudulently procured. Not inconsistent with that statement, and indeed following on its heels, is the claim that the visas were used to gain entry. The fraud alleged is constant - the aliens' entry as tourists when their real intent was employment. The government thus is not choosing between two contradictory legal theories in showing visa fraud and fraud at time of entry, in its proof at trial. It belies common sense to suggest that an alien who has entered this country to do other than he has represented in his documentation, even though he successfully passes through immigration authorities, is lawfully entitled to enter or reside in the United States.
To conclude, defendants present no legitimate reason warranting dismissal of these counts. Production of the visa application forms is not essential to the government's case. Nor is the government prohibited from showing not only that the aliens fraudulently procured tourist visas ...