(dissenting).
I am unable to perceive why this case is not precisely governed by Lutwak v. *910United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593, and by our own earlier decision of United States v. Rubenstein, 2 Cir., 151 F.2d 915, cert. denied 326 U.S. 766, 66 S.Ct. 168, 90 L.Ed. 462, cited with approval in Lutwak. In fact the more my brothers protest that there is some (unclear) distinction between the cases, the more they disclose the essential identity. In Lutwak; three justices dissented, making essentially the same point my brothers stress, namely, that proof was lacking that the marriages were invalid or at least only voidable where made. But the six-man majority held expressly that the validity of the marriages was immaterial. Among other things Justice Minton said, 344 U.S. 604, at pages 611, 612, 73 S.Ct. 481, at page 486: “Thus, when one of the aliens stated that he was married, and omitted to explain the true nature of his marital relationship, his statement did, and was intended to, carry with it implications of a state of facts which were not in fact true.” Why my brothers quote this with apparent approval is not clear, since it is so directly applicable to our present case.
While I cannot discover what distinction my brothers are-actually advancing, I gather that they are attempting to fragmentize the facts so as to look for small differences in the representations made by these defendants from those appearing in the earlier cases. They are not successful; for the differences at best are trifling, as well as immaterial on the evidence. Here appellants Diogo and Gonzalez hired defendant Adria Gonzalez to procure for them women who for hire went through sham weddings which were never consummated and by which appellants fooled the immigration authorities as to their marital status a.nd staved off deportation until the true facts were brought out on investigation. What more precise testimony of obviously and knowingly making a false claim against the government could be imagined! And on this basis the laborious attempt to determine the New York law of marriage is without point; whatever ideas these appellants may have had as to that law, they knew enough about the federal law of deportation to make quite an investment in an endeavor to evade it.
I excepted appellant Costa from the above statement because his case is somewhat different from the others. In his case the evidence tends to show that the woman he procured went into the marriage in good faith, without knowledge of his intent, and that the marriage was consummated. How far inner reservations as to intent of only one party to a marriage may be used to show a false claim to secure immigration advantages is a problem. I would not be greatly troubled to accept the view that a marriage thus at least partially valid should not be inquired into further as a matter of public policy. But examining the rationale of the Lutwak and Rubenstein cases, I find stress upon the deportee’s intent; hence although the ease seems not free from doubt, I am constrained to conclude that Costa, too, was properly convicted on the evidence.
The majority opinion raises question as to the adequacy of the charge by quoting a couple of brief passages out of context. It is not fair thus to dispose of a very long charge coming at the end of several days’ trial where the issue as to defendants’ intent in the pretended marriages had been made clear and precise. Against this background the charge seems to me without prejudicial error, at least so far as concerns any juror with a modicum of intelligence.
It is to be noted that Adria Gonzalez, the procuress of the women and the pivot about whom the conspiracy revolved, was convicted and sentenced to seven years’ imprisonment and has not appealed. So she must do time for a crime which my brothers hold does not exist. But at any rate her business has been validated; and it may be expected that others, too, may take up this occupation, now that a real gap in the immigration laws has been found at hand for convenient exploitation.