FEINBERG, Circuit Judge:
Defendants Robert Sarantos and Constantine Makris appeal from judgments of conviction after a 15-day trial before Judge Inzer B. Wyatt and a jury in the United States District Court for the Southern District of New York. Sarantos was convicted on five counts of conspiring to make false statements to the Immigration and Naturalization Service (INS) and to defraud the United States Government in violation of 18 U.S.C. §§ 371, 1001, 1546. Makris was found guilty along with Sarantos on two of those counts. Sarantos was also convicted separately on seven counts of aiding and abetting others to make false statements to the INS in violation of 18 U.S. C. §§ 1001 and 2.
Viewed in the light most favorable to the Government, the record reveals the following facts: Sarantos and Makris were participants in illegal plans to obtain permanent residence in this country for male Greek aliens. Defendants sought to take advantage of an immigration rule that permitted the alien spouse of a United States citizen to obtain an immigrant visa, which entitled the alien to enter the country as a permanent resident regardless of whether the yearly quota of immigrant visas allotted to the alien's country had been exhausted. To exploit this special exception to the quota system the participants employed a scheme generally involving two steps: First, a sham marriage was arranged between the Greek alien and a Puerto Rican women who was a United States citizen; and second, a visa petition
Makris was essentially a marriage broker. He helped to locate Puerto Rican women who were interested in marrying Greek aliens in return for a fee. He also assisted in arranging sham marriages. Sarantos, an attorney, was involved in the second stage. The parties to the sham marriages visited his office shortly after the wedding ceremony. There the wife would sign a visa petition in blank, which Sarantos would later complete and file with the INS. In each case the petition stated falsely that the parties were living together as husband and wife. Sarantos also instructed
Before the case went to the jury the trial court instructed the jurors on the elements of the crimes charged against Sarantos. The jury was told, among other things, that before they could find Sarantos guilty of aiding and abetting the making of false statements they must conclude that "he knew . . . [the statements] were false and that he wilfully and knowingly participated in furthering the conduct." After defining knowingly and wilfully as meaning that "one knows what he or she is doing, as distinguished from an inadvertent or careless act," the court further charged the jury that:
The attorney for Sarantos objected to the charge on the ground that reckless disregard of the falsity of the statements or a conscious effort to avoid learning the truth did not amount to "knowledge." The trial court overruled the objection, and Sarantos now claims the court committed reversible error.
The charge on the issue of knowledge given by the district judge in this case was taken almost verbatim from a charge which we upheld recently in United States v. Egenberg, 441 F.2d 441, 444 (2d Cir. 1971), cert. denied, 404 U.S. 994, 92 S.Ct. 530, 30 L.Ed.2d 546 (U.S. Dec. 14, 1971), a case also involving 18 U.S.C. § 1001. The court in Egenberg in turn relied on another decision of this court in United States v. Abrams, 427 F.2d 86, 91 (2d Cir.), cert. denied 400 U.S. 832, 91 S.Ct. 64, 27 L.Ed.2d 63 (1970). We held in Abrams that there was sufficient evidence to convict an attorney of knowingly causing the making of a false statement in an affidavit which he completed over his client's signature and filed with the INS, and we stated:
Defendant offers a number of arguments why these decisions should not foreclose his objection to the charge. First is a frontal attack on Abrams, which defendant urges us to overrule. He contends that when an attorney is charged with aiding and abetting the making of a false statement it cannot be
We stand by our decision in Abrams. Its purpose in cases such as this was to prevent an individual like Sarantos from circumventing criminal sanctions merely by deliberately closing his eyes to the obvious risk that he is engaging in unlawful conduct. Our ruling in Abrams was intended to foreclose this possible loophole, not to create a new crime as defendant suggests. Compare Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Construing "knowingly" in a criminal statute to include wilful blindness to the existence of a fact is no radical concept in the law. See, e.g., Leary v. United States, 395 U.S. 6, 46 n.93, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969);
Defendant also argues that Abrams conflicts with the statement this court made in United States v. Diogo, 320 F.2d 898, 906 (2d Cir. 1963), that "under 18 U.S.C. § 1001 a person does not answer official questions at his peril." The argument overstates the effect of our holding in Abrams and misinterprets our statement in Diogo. The latter was directed to the problem of determining whether a particular answer to an official question is true or false. The court was referring to the well established rule that to ascertain truth or falsity one must look to the meaning intended by the party who gave the answer and not to the interpretation, however reasonable, given it by government authorities. Our holding in Abrams, and here, does not in any way conflict with that proposition.
Sarantos next argues that even if we uphold Abrams, we should overrule, or at least modify, our decision in Egenberg because it improperly expanded the ruling in Abrams. Sarantos points out that in Abrams we stated that "the jury could have found . . . that appellant acted with reckless disregard of whether the statements made were true and with a conscious purpose to avoid learning the truth" (emphasis added), whereas in Egenberg we upheld a charge which substituted
Defendant's final argument is that the facts of this case did not call for the Abrams-Egenberg instruction. The short answer is that this was a classic case for its use.
Makris was convicted on two counts (3 and 5) of conspiracy to violate 18 U. S.C. §§ 1001, 1546. On appeal, he objects to numerous parts of the trial court's charge to the jury, and particularly to the court's instructions on count 3. We think the charge was in all respects fair and proper, and find it necessary to discuss only defendant's objections to the instructions on count 3.
The Government's evidence relating to that count established the following facts: In January 1964, Makris met with another co-conspirator, Sylvia Cohen, in New York City to request that she find a Puerto Rican woman who was willing to enter into a sham marriage with one Panagiotis ("Pete") Sassalos. When Sylvia found a prospective bride, Luz Rodriquez, she reported her success to Makris. He then instructed her to so inform another co-conspirator, Tassos Christ. Sylvia did so and the wedding date was set.
Luz Rodriquez and Pete Sassalos were married on January 14, 1964. On that same day, the newlyweds visited the office of defendant Sarantos where Luz signed a visa petition in blank. Sarantos completed the form and filed it with the INS. The document falsely stated that the couple was living together at 104 East 31 Street in New York City. Luz testified at trial that, although she was shown the apartment at that address and told to "bring a few dresses there in order to prove that I did live there," she never lived with Sassalos at that or any other residence.
The final events in this scheme took place several months later. On August 13, 1964, Sassalos appeared at an INS office to provide further information so that the Service could determine whether he was eligible for an immigrant visa. Again he falsely stated that he and his wife, Luz, were living together at the address previously given in the visa petition. Obviously unaware of the falsehood, the INS issued Sassalos a permanent residence visa on August 27, 1964.
Before the case went to the jury, defendant's attorney unsuccessfully requested the trial judge to instruct the jury on questions relating to two defenses, the first of which was the statute of limitations. As to that defense, the parties agree that the Government is barred from prosecuting Makris on count 3 if the conspiracy there alleged terminated prior to July 9, 1964.
On the facts of this case, it is clear that the limitations period had not run on count 3 by the time the indictment was filed. The "scope of the conspiratorial agreement" here included as a principal objective the obtaining of permanent residence for Sassalos. That objective had not been secured by July 9, 1964, which indicates on the surface at least that the conspiracy had not terminated by that date. Any doubts on that question, however, are dispelled by Sassalos' appearance before the INS in August 1964 for the purpose of giving false information to obtain permanent residence. His appearance constituted an overt act committed within the scope of the original agreement and in furtherance of its objectives. Thus, under Grunewald we think the trial court correctly concluded that an instruction on the statute of limitations was unwarranted.
In his brief to this court, Makris argues that he cannot be held accountable for the appearance by Sassalos before the INS in August 1964 because he was unaware that "an additional affidavit . . . would have to be submitted"
Makris also argues that the trial judge improperly denied his request that the jury be charged on the defense of two conspiracies with regard to count 3.
Defendant's other objections to the trial court's charge as "unduly heavy against the defendants" are without merit.
The comments to § 2.02(7) state clearly that the provision was drafted to reach situations where the actor consciously shuts his eyes to avoid knowing whether or not he is committing unlawful acts. Model Penal Code § 2.02, Comment (Tent. Draft No. 4, 1955).
United States v. Squires, supra, 440 F.2d at 863.