IRVING R. KAUFMAN, Circuit Judge:
18 U.S.C. § 1407 requires any citizen convicted of narcotics or marijuana offenses, as well as those who are addicted to, or "use" narcotic drugs, to register with customs officials on leaving and entering the country.
On September 20, 1950, Thomas Mancuso was convicted of violating the federal narcotics laws, and sentenced to three years probation. Almost seventeen
Mancuso, after his return to the United States on January 24, 1967, was charged with two counts of violating section 1407; one for leaving the country without registering, and one for entering without registering. He was convicted on both counts and sentenced to one year in jail and $1000 on count 1, and three years on count 2, to run consecutively after count 1. Sentence on count 2 was suspended, with five years probation.
Mancuso urges vigorously that Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), controls. In Lambert the Supreme Court declared unconstitutional a Los Angeles statute requiring all convicted felons to register with the police department within five days after arriving in the city. The Court held that the lack of either notice or a showing of probability of knowledge of the statute, which permitted conviction of those who had no knowledge or reason to know of its provisions, violated fundamental precepts of due process. Prior cases such as Shevlin-Carpenter Co. v. State of Minnesota, 218 U.S. 57, 30 S.Ct. 663, 54 L.Ed. 930 (1910), and United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922), were distinguished as involving licensing of business activity which were unlike the Los Angeles code provisions, for which "circumstances which might move one to inquire as to the necessity of registration are completely lacking." 355 U.S. at 229, 78 S.Ct. at 243. The Court also indicated that there was no commission of acts, or failure to act under circumstances that would make the doer aware of the consequences of his deed; "we deal here with conduct that is wholly passive — mere failure to register." 355 U.S. at 228, 78 S.Ct. at 243.
The government stresses our holding in United States v. Juzwiak, 258 F.2d 844 (2d Cir. 1958), cert. denied, 359 U.S. 939, 79 S.Ct. 652, 3 L.Ed.2d 639 (1958), where we upheld a seaman's conviction under 18 U.S.C. § 1407 for entering and leaving the country without registering. This Court's decision in Juzwiak rested on two alternative grounds; the first, that Lambert was not controlling because it involved "nonfeasance" as opposed to Juzwiak's "misfeasance" in accepting employment on a ship traveling to Europe. The second, citing Lambert, explained that "there was a showing of the probability that the defendant [Juzwiak] had knowledge of his duty to register." 258 F.2d at 847. Later, in United States v. Jones, 368 F.2d 795
Our determination to so interpret section 1407 is underscored by both precedent and practicality. The Supreme Court was faced with interpreting a criminal statute lacking of a specific requirement of wilfulness in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). It considered the aim of the act (one punishing conversion of government property), and the common-law background in order to conclude that intent, although not specifically mentioned, must be read into it.
On practical, purposive grounds, it is difficult to understand how elimination
And finally, we are presented with that rare instance in which overturning a criminal conviction will in all probability lead to improved enforcement of the underlying act. The hallmark of this case is sloppiness on the part of those charged with responsibility for enforcing the statute. The total effort to inform those likely to be affected by the provisions of section 1407 seems to have consisted of a few signs posted in crew entrances at airports, in a few places near customs stations, and at other odd locations ill-designed to bring them to public notice of travelers generally. As the trial judge summarized the evidence before him:
Thus a simple notice provided with each passport application, or a printed form given to narcotics violators on their conviction, warning them of the requirement to register, would provide both the notice and knowledge necessary to sustain a criminal conviction, and to ensure that the aim of the statute would be fulfilled.
The judgment of the District Court is reversed and the indictment is dismissed.
MOORE, Circuit Judge (concurring):
I concur in the result. Specifically I would not read § 1407 more broadly than as interpreted in Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d
The court in Juzwiak indulged in a specific inquiry into the facts surrounding Juzwiak's personal knowledge of the statute. It appears to have taken the same course we follow here, and inquired into the circumstances that would raise an inference of actual knowledge. Indeed, since the concurring opinion seems to treat probability of knowledge as "an exclusively factual question dependent on the facts of each case," we are unable to understand the source for its disagreement with our treatment of the requirement of probability of knowledge. We need not, and expressly do not, proffer any opinion on the wisdom or constitutionality of a criminal statute designed to give generally reasonable notice, and then punish those who negligently failed to observe or learn its terms. Cf. Lambert v. California, 355 U.S. 225, 227, 229-230, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). See Hart, The Aims of the Criminal Law, 23 Law & Contemp.Prob. 401, 417ff. (1958).
Palma v. United States, 261 F.2d 93 (5th Cir. 1958), cited by the government as holding that the statute is constitutional and does not require knowledge, appears to take that position as dictum, since it seems to accept the contention that "by failing to claim any constitutional privilege to which he may have been entitled at the time he was about to leave or enter the United States, appellant cannot now be heard to complain that he has been deprived thereof." 261 F.2d at 94. See also Ketchum v. United States, 269 F.Supp. 796 (S.D. N.Y.1967). The only other Circuit court decision urged by the government, Reyes v. United States, 258 F.2d 774 (9th Cir. 1958), does appear contra the position taken here. See also United States v. Eramdjian, 155 F.Supp. 914 (S.D.Cal. 1957). However, Weissman v. United States, 373 F.2d 799 (9th Cir. 1966) overruled so much of Reyes and Eramdjian as held the "user" portion of the statute constitutional.