Moncado v. Ramsey, 13670.

• Decision Date: 07 April 1948
• Docket Number: No. 13670.,13670.
• Citation: 167 F.2d 191
• Parties: MONCADO v. RAMSEY.
• Court: U.S. Court of Appeals — Eighth Circuit

167 F.2d 191 (1948)

MONCADO v. RAMSEY.

No. 13670.

Circuit Court of Appeals, Eighth Circuit.

April 7, 1948.

Morris A. Shenker, of St. Louis, Mo. (Bernard J. Mellman, of St. Louis, Mo., on the brief), for appellant.

Drake Watson, U. S. Atty., of St. Louis, Mo. (David M. Robinson, Asst. U. S. Atty., of St. Louis, Mo., on the brief), for appellee.

Before SANBORN, JOHNSEN, and STONE, Circuit Judges.

SANBORN, Circuit Judge.

The appellant is held for deportation to Italy under a warrant issued on November 1, 1938, by the Assistant to the Secretary of Labor, which recites that he has "become satisfied that the alien Diego Moncado or Salvatore or Samuel or Sam or Richard or Dick Moncado alias Sam Montana alias Marlo alias Marlow alias Marlowe, who entered the United States at New York, N. Y., ex SS `Calabria' on the 16th day of May, 1913, is subject to deportation under section 19 of the Immigration Act of February 5, 1917, being subject thereto under the following provisions of the laws of the United States, to wit: The act of 1917 8 U.S.C.A. § 155, in that he has been found receiving, sharing in, or deriving benefit from the earnings of a prostitute; and that he has been found assisting a prostitute." Execution of the warrant was deferred until the appellant, who had been convicted of a federal offense and sentenced to imprisonment, should be released from imprisonment.

After his release, the appellant was taken into custody by the Immigration authorities, but was later permitted to be at liberty on bond because the relations between this country and Italy made it impossible to then deport him. He was again taken into custody in August, 1947.

On August 13, 1947, he applied for a writ of habeas corpus, asserting that his detention was illegal. The District Court granted the writ, but, after a hearing, discharged it, dismissed the appellant's petition, and remanded him to the custody of the appellee. This appeal followed.

The contentions of the appellant are, in substance, as follows: (1) That there was no adequate evidentiary basis for the determination that he is an alien; and (2) that he did not have a fair hearing before the Immigration Inspectors, because: (a) he did not have an opportunity to be represented by counsel of his own choosing, or to present evidence in his own behalf; (b) the evidence upon which the deportation warrant was based was not properly identified; and (c) the appellant was given no opportunity to controvert such evidence or to cross-examine those who gave it.

The record shows: That the "Warrant for Arrest of Alien," which charged the appellant with being an alien subject to deportation for having been found sharing in the earnings of a prostitute, was issued on July 8, 1937, by the Assistant to the Secretary of Labor; that the appellant was taken into custody at the City Jail, St. Louis, Missouri, July 23, 1937; that, at a hearing held on that day by Immigrant Inspector R. M. Wesley, the Warrant for Arrest was read to the appellant and inspected by him; that he was informed that the purpose of the hearing was to afford him an opportunity to show cause why he should not be deported; that he stated that his name was Samuel Richard Moncado; that he was informed by the Inspector that he was entitled to be represented by counsel of his own selection; that he stated that he wanted a lawyer and that it might take a couple of weeks for him to get one; that thereupon the hearing was continued to July 30, 1937.

On July 30, 1937, the appellant appeared without counsel, and the hearing was continued to August 5, 1937, to enable him to obtain counsel. On that day he stated that he had not completed his arrangements for counsel. The hearing was therefore continued to August 24, 1937. On August 24, the appellant stated that he had been unsuccessful in obtaining an attorney, and the hearing was continued to September 16, 1937. On that day he stated that he understood that the Italian Consul would represent him, and the hearing was continued to September 22, 1937, to enable the Italian Consul to be present. On September 22, the appellant was asked if he had an attorney present to represent him. He stated that he had such an attorney — Claudio Delitala. Mr. Delitala said that he was there to represent the appellant. The appellant said he was ready to proceed, and his counsel stated that he was ready provided that he would have an opportunity at a later date to cross-examine witnesses and to present other evidence.

The appellee, as the "Hearing Officer," conducted the hearing on September 22, 1937. In support of the charge contained in the Warrant for Arrest, he introduced the following evidence:

1. A statement made by appellant to a United States Immigrant Inspector on June 16, 1937, the substantial correctness of which the appellant admitted. This statement shows that the appellant's name is Salvatore or Samuel Moncado; that he is sometimes called Dick; that his father's name is Samuel Moncado, or, in Italian, Salvatore; that his mother's name is Mary Marlo, and that he has used the name Sam Marlo; that he has two brothers and six sisters, — Vincent and Joseph, Lena, Virginia, Grace, Elsie, Alice and Rose; that he presumes his parents were born in Italy; that possibly his eldest brother and sister were born there; that his parents live in Syracuse, New York; that they lived in St. Louis, Missouri, at 2318 Chouteau, from about 1924 until about 1932; that their address in Syracuse was 1200 Willis Avenue; that he thinks he was born in Syracuse, New York, May 24, 1907; that he has no birth certificate; that he does not know when his parents came to the United States; that he believes he is a citizen of the United States; that he went to kindergarten in Syracuse when six or seven years old, and remembers nothing before that; that he thinks he was born in Syracuse because his earliest recollections are of Syracuse; that it could be possible that he was born in Italy and brought to the United States when a small child; that he was married on December 15, 1925, to Mildred Nichols, who divorced him in January, 1936; and that he has a son who will be eleven years old October 1, 1937.

2. A certified copy of a sworn statement of Salvatore Moncado, taken at Syracuse, New York, before an officer of the Immigration and Naturalization Service on May 28, 1937, which is, in substance, as follows: That he lives at 957½ Emerson Avenue, Syracuse, New York; that he has not been admitted to citizenship; that he was married to Maria April in Canicatti, Italy, April 12, 1893; that they have nine children, — Vincenzo, Lena, Vincenza, Grazia, Elsie, Diego, Adele, and Giuseppe, all born in Italy, and Rosina, born in Syracuse, New York; that Diego was born May 24, 1906; that Diego sometimes uses the name of Sam or Salvatore or Dick, and some people call him Richard; that Diego lives in St. Louis, Missouri; that two photographs concededly of the appellant shown to him (Salvatore Moncado) are of his son Diego; that Diego has a son ten or eleven years old; and that Diego entered the United States with his mother May 16, 1913, at New York, New York, SS Calabria.

3. A certified copy of a statement made by Maria Aprile Moncado apparently taken at the same time and place as the statement of Salvatore Moncado, in substance, as follows: That her full name is Maria Aprile Moncado; that she resides at 957½ Emerson Avenue, Syracuse, New York; that she was born in Canicatti, Italy, September 11, 1877; that she lived at 1200 Willis Avenue, Syracuse, New York, for ten years; that she has nine children, — Vincenzo, Lena, Vincenza, Grazia, Elsie, Diego, Adele, Giuseppe, all of whom were born in Italy, and Rosina, who was born in Syracuse; that Diego was born May 24, 1906, and lives in St. Louis; that Diego calls himself Sam or Salvatore or Dick; that the photograph shown her is of her son Diego; that she entered the United States at New York on the SS Calabria on May 16, 1913, accompanied by six of her children, including Diego, destined to her husband, Salvatore, who was living in Syracuse, New York; that her son Diego married Emily Nichols when he was seventeen years old, and has a son who will be eleven on October 1, 1937; that her husband, about two years before she made her statement, tried to become a citizen of the United States, but "didn't get the papers"; that they were then living at 1200 Willis Avenue, Syracuse; that while in St. Louis they lived at 2318 Chouteau Avenue.

4. A certified copy of a "Certificate of Admission of Alien," of the United States Department of Labor, Immigration and Naturalization Service, under date of May 14, 1937, showing that Diego Moncado, six years of age, a citizen of Italy, born at Canicatti, Sicily, destination Syracuse, New York, going to father, Salvatore Moncado, and accompanied by his mother, Maria Aprile, and five other children, arrived at the port of New York, N. Y., on the SS Calabria, of the Anchor Line, on May 16, 1913.

5. Separate ex parte sworn statements of three women, which statements were taken by an Immigration Inspector. Each of these women said that she had shared her earnings as a prostitute with the appellant. One of the women stated that the appellant had told her he was born in "Palerno, Italy." Another stated that he told her he was born in Italy, but raised in Syracuse, New York.

Counsel for appellant asked that the three women whose ex parte statements had been received in evidence be produced for cross-examination. The Hearing Officer stated that these witnesses would be produced. He said to appellant's counsel, "Is there any additional evidence that you desire to offer at the hearing of this case?" The answer was, "Yes, at the time that we examine the witnesses, Deutsch, Carpenter and Wright the three women whose statements had been introduced, we would like to present evidence in support of the character of Moncado to disprove the character charges made...