United States v. Mason

Citation344 F.2d 673
Decision Date07 April 1965
Docket NumberDocket 29223.,No. 269,269
PartiesUNITED STATES of America ex rel. Emilio MARTINEZ-ANGOSTO, Relator-Appellant, v. Redfield MASON, Rear Admiral and Commandant, Third United States Naval District, 90 Church Street, New York, New York, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

COPYRIGHT MATERIAL OMITTED

Edward Q. Carr, Jr., New York City (Edith Lowenstein, New York City, of counsel), for relator-appellant.

Roy Babitt, Sp. Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty., for the So. Dist. of New York), for respondent-appellee.

Before FRIENDLY, HAYS and MARSHALL, Circuit Judges.

MARSHALL, Circuit Judge:

On the morning of December 6, 1963 two men confronted Emilio Martinez-Angosto at the factory where he worked. They identified themselves as agents of the Immigration and Naturalization Service INS and asked his name and for his papers. He gave his name, and informed the agents that his papers were at home. He was then taken to his home and there he produced a marriage certificate, the birth certificates of his children, and a Spanish seamen's card. The agents then took him to the INS offices where he was interviewed, with the aid of a Spanish interpreter, given lunch, confined to a room until the evening, then removed to the INS detention quarters and kept there for three days. On December 9, he was taken from these quarters by uniformed guards to the Office of Naval Intelligence and interviewed by a Naval Foreign Liaison Officer. At the conclusion of the interview, Martinez-Angosto was imprisoned in the Third Naval District Brig. Three days later he was interviewed again, this time by two naval officers. The custody was continued with a view of turning him over to the captain of a Spanish cruiser on December 27, to be returned to Spain.

Through the aid of his wife, his family priest, and the Legal Aid Society, on December 20 a petition for a writ of habeas corpus was filed in the Southern District of New York to test the legality of his detention. In a decision dated July 15, 1964 and reported at 232 F.Supp. 102, Judge Edelstein dismissed the petition.1 We reverse. The imprisonment of Martinez-Angosto constitutes a deprivation of liberty without due process of law in violation of the Fifth Amendment. His arrest and imprisonment by the INS agents were unlawful, and the Navy does not have the lawful authority to imprison him.

In 1903 the United States adhered to a Treaty of General Relations and Friendship with Spain, 33 Stat. 2105. Article XXIV2 of that Treaty dealt with the return of naval deserters, and it resembled, in essential outline, provisions appearing in a great number of other treaties the United States had entered into with other nations during the nineteenth century, listed in Tucker v. Alexandroff, 183 U.S. 424, 430, 461, 22 S.Ct. 195, 198, 209, 46 L.Ed. 264, 267, 279 (1902); 5 Hackworth, Digest of International Law, 310 (1943). As the Treaty is presently binding on the United States, Treaties in Force, January 1, 1965, p. 174, n. 2, Spanish consular officers have the right to "cause to be arrested" and "cause to be returned to their own country" seamen forming part of the crew of ships of war who have deserted in one of the ports of the other. However, the consular officers were not given the power to arrest, to detain and to put on board those claimed as naval deserters; instead this power was reserved by the treaty to "competent national or local authorities." These authorities were entrusted with the responsibility and power to arrest and imprison a deserter, with a view to surrendering him to Spanish authorities for return to Spain. The exercise of this power was predicated on the following determinations by the "competent national or local authorities": (1) the individual sought by the Spanish authorities had deserted from a Spanish ship of war in a United States port; (2) the individual actually arrested and detained is the deserter sought; (3) this individual is not a citizen of the United States; and (4) this individual had not previously been arrested for the same cause and set at liberty because he had been detained for more than three months from the day of his arrest without the Spanish authorities having found an opportunity to send him home. These competent authorities also have the responsibility of setting the deserter free if his detention endures for more than three months without the Spanish authorities having found an opportunity to send him home. Although the treaty requires that these determinations be made by "competent national or local authorities," and that the arrest and detention be made by such authorities, it does not clothe any individuals or officers of the federal government, or state and municipal government, with the competence or lawful authority to do these things. It relies upon the internal laws of the United States to provide the lawful authority.

When the United States entered this Treaty with Spain, a federal law, Rev. Stat. § 5280 (1875),3 originally enacted as the Act of March 2, 1829, 4 Stat. 359, as amended by the Act of February 24, 1855, 10 Stat. 614, existed, which authorized certain federal officers to enforce this treaty provision.4 Specifically, "any court, judge, commissioner of any circuit court, justice, or other magistrate, having competent power"5 was clothed with the authority to issue warrants to cause the arrest of the individual sought as a deserter. These authorities were to make the above critical determinations, conduct "an examination" for those purposes, and, being satisfied that the conditions of the Treaty were satisfied, to detain the deserter pending his surrender to the foreign authorities. The Treaty with Spain provided that the deserter would be set at liberty and never to be arrested for the same cause if he were detained for more than three months without the Spanish authorities having found an opportunity to send him home; in Rev.Stat. § 5280 the period was two rather than three months. Because of this discrepancy the Treaty could be viewed, not as impliedly abrogating Rev. Stat. § 5280 as it applied to seamen deserting from Spanish ships, but perhaps modifying it as it so applied; cf. Cook v. United States, 288 U.S. 102, 118-119, 53 S.Ct. 305, 77 L.Ed. 641 (1933); 13 Ops. Atty.Gen. 354, 358 (1870).

In 1915 Congress enacted a Seamen's Act, 38 Stat. 1164, to "promote the welfare of American seamen in the merchant marine of the United States; to abolish arrest and imprisonment as a penalty for desertion and to secure the abrogation of treaty provisions in relation thereto; and to promote safety at sea." Section 166 of the Act "requested and directed" the President to terminate all deserting seamen treaty provisions in respect to merchant seamen; and section 177 repealed Rev.Stat. § 5280. It would have made more sense for Congress to repeal only so much of § 5280 as related to the arrest and imprisonment of deserters from merchant vessels, saving it for deserters from ships of war, because section 16 only directed the abrogation of treaty provisions dealing with deserters from merchant vessels. There is strong evidence in the legislative history that Congress only intended this pro tanto repeal of § 5280.8 But this evidence is not sufficient to overcome the unambiguous statutory language, compare Markham v. Cabell, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945), Cawley v. United States, 272 F.2d 443, 445 (2 Cir. 1959), and this language repeals § 5280 in toto. The practical consequences of this seeming overextended repeal of § 5280 were minimized by the actual response to the mandate of section 16. Within several years following the enactment of the Seamen's Act of 1915 all deserting seamen treaty provisions, except those with Spain and Greece, were terminated in respect to both merchant and naval seamen, although section 16 of the Act only called for the termination of such provisions in respect to merchant seamen. With Greece and Spain the response was more measured; and the relevant articles were abrogated only so far as they applied to merchant seamen. See generally, 5 Hackworth, Digest of International Law, 309-12 (1943); Treaties in Force, January 1, 1965, p. 79, n. 1, p. 174, n. 2; cf. Van Der Weyde v. Ocean Trans. Co., Ltd., 297 U.S. 114, 117, 56 S.Ct. 392, 80 L.Ed. 515 (1936).

The net outcome of these less than co-ordinated efforts of the executive and legislative branches was to leave Article XXIV of the 1903 Treaty with Spain binding on the United States insofar as it applied to deserters from ships of war, and, at the same time, to dismantle the domestic enforcement machinery previously established in Rev.Stat. § 5280, which had been in existence for almost a century and which was presumably within the contemplation of those drafting Article XXIV. To this day, the void created by the repeal of § 5280 has not been filled with a similar general grant of authority, even though the Treaty relies upon the domestic law for the determination of which of its officers would be competent to arrest and imprison the alleged deserter and to make the determinations of law and fact requisite to his continued detention and surrender to the Spanish authorities.

In this instance, the Spanish authorities improvised and the American officers responded. What evolved, in an ad hoc fashion, was a network of cooperation between the INS and the Navy, which was not authorized in law and which, incidentally, would not even have satisfied the previously repealed Rev.Stat. § 5280. The commanding officer of the Spanish ship from which Martinez-Angosto allegedly deserted first notified the Commandant of the Fourth Naval District of the desertion. The Commandant notified the United States Naval Intelligence, and the information was relayed to the INS. This occurred in the last two months of 1960. Three years later, after receiving an...

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