United States v. Yitchak Ijo Perlmuter

concurring:

I concur in Judge Nelson’s opinion for the reasons expressed. In addition, there are other reasons why the defendant’s conviction must be reversed.

Government Exhibits 3 and 4 were the only evidence offered to prove that the defendant was convicted of crimes in Israel before entering this country. While the precise origin of these documents is unclear, they were obtained through Interpol. Interpol is a widely known international police organization. It is not an agency of the Israeli Government and it certainly is not a part of the government of this country. A record of convictions from Interpol has no more authority in the legal proceedings of the United States than records of alleged convictions that may be kept by Lloyd’s of London for insurance purposes.

The documents are not signed by a person having either appropriate authority or official capacity. Both exhibits bear the signature “Herstig” above the words “Dept, of Automatic Data Processing.” The identity of Herstig is never revealed, and his official position, employment by the Israeli Government and his authorization by that government’s law to make these attestations are never discussed.

Exhibit 4 can…

After a court trial, appellant was found guilty of knowingly procuring naturalization contrary to law in violation of 18 U.S.C. § 1425 (a) (1976). The indictment alleged that appellant misstated orally and on his Application to File Petition for Naturalization that he had not been convicted of any offenses other than traffic violations. An exhibit (Exhibit 4) was admitted into evidence, however, which indicated that appellant had been convicted of a number of offenses in Israel including (among others) perjury, assault, theft, and obtaining goods by false pretenses. Appellant was fined $5000 and sentenced to six months in prison. The trial court also cancelled appellant’s certificate of naturalization pursuant to 8 U.S.C. § 1451 (g) (1976). Perlmuter appeals from the conviction and the cancellation of his certificate claiming that two exhibits (Exhibits 3 and 4) should not have been received into evidence. He contends that neither exhibit was properly authenticated and that Exhibit 4 was inadmissible hearsay, received into evidence in violation of the Federal Rules of Evidence (“FRE”) and the confrontation clause. We reverse.

I. FACTS

Appellant immigrated to the United States…

J. BLAINE ANDERSON, Circuit Judge,

I concur only in the judgment. I consider the government’s effort to be inadequate since it failed to take steps to obtain documents that complied with the Federal Rules of Evidence, nor determine if other documentation was available.

I would leave to another day any discussion of the “good cause” exception in Fed.R. Evid. 902(3) and “equivalent circumstantial guarantees of trustworthiness” in Fed.R. Evid. 803(24).

I CONCUR IN THE JUDGMENT.

693 F.2d 1290 12 Fed. R. Evid. Serv. 104 UNITED STATES of America, Plaintiff-Appellee, v. Yitchak Ijo PERLMUTER, Defendant-Appellant. No. 81-1533X. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 9, 1982. Decided Dec. 2, 1982. Douglas Dalton, Los Angeles, Cal., for defendant-appellant. Mark Bonner, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before ANDERSON, FERGUSON and NELSON, Circuit Judges. NELSON, Circuit Judge: 1 After a court trial, appellant was found guilty of knowingly procuring naturalization contrary to law in violation of 18 U.S.C. Sec. 1425 (a) (1976). The indictment alleged that appellant misstated orally and on his Application to File Petition for Naturalization that he had not been convicted of any offenses other than traffic violations. An exhibit (Exhibit 4) was admitted into evidence, however, which indicated that appellant had been convicted of a number of offenses in Israel including (among others) perjury, assault, theft, and obtaining goods by false pretenses. Appellant was fined $5000 and sentenced to six months in prison. The…