19 F.2d 335 (1st Cir. 1927), 2094, Charley Hee v. United States

Docket Nº:2094.
Citation:19 F.2d 335
Case Date:May 17, 1927
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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19 F.2d 335 (1st Cir. 1927)




No. 2094.

United States Court of Appeals, First Circuit.

May 17, 1927

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Edward J. Casey, of Boston, Mass., and H. W. Sullivan, of Jamaica Plain, Mass. (Edward P. Barry and Barry, Casey & Sullivan, all of Boston, Mass., on the brief), for appellant.

John W. Schenck, Asst. U.S. Atty., of Boston, Mass. (Frederick H. Tarr, U.S. Atty., of Gloucester, Mass., on the brief), for the United States.

Before JOHNSON and ANDERSON, Circuit Judges, and MORTON, District Judge.

MORTON, District Judge.

This is a deportation case under the Chinese Exclusion Act. It was heard in the first instance by Commissioner Jenney, who made an order of deportation from which the defendant appealed. In the District Court the appeal was heard,-- apparently by agreement of parties,-- solely upon a transcript of the testimony before the commissioner, together with his memorandum of decision. It is not a satisfactory way to deal with a matter involving principally the credibility of witnesses, but permissible if the parties agree. See Liu Hop Fong v. United States, 209 U.S. 453, 28 S.Ct. 576, 52 L.Ed. 888; Jung See v. Nash, 4 F.2d 639, C.C.A. 8th. The District Judge in a short memorandum held that the commissioner's decision 'was justified.' The present appeal was then taken. It presents certain questions of evidence, and a basic question whether the decision was right.

The appellant claims that he is an American citizen, that he was born in Oroville, Cal., about 44 years ago, that he came to Boston when about 10 years old and has lived here ever since, and that he registered here in the draft as an American citizen. The evidence shows that for about four years before his arrest, he conducted a Chinese laundry on Beacon street, Boston. On Saturday evening, September 19, 1926, a Chinese inspector, without a warrant or process of any kind, arrested him at his laundry, where he was peaceably at work, took him to police station 16, and proceeded to question him in the presence of an interpreter and a stenographer. He was held at station 16 without any process until Monday, when a warrant was procured. The defendant's statement made at this time was admitted in evidence against him, not being objected to by his counsel at either hearing. He now contends for the first time that it should have been excluded and disregarded.

The arrest and the ensuing imprisonment before the issue of the warrant were plainly illegal. The statute in question provides that 'any Chinese person, or person of Chinese descent, found unlawfully in the United States, or its territories, may be arrested upon a warrant issued upon a complaint, under oath, filed by any party on behalf of the United States.' 25 Stat. 476-479; U.S. Comp. Stats. 1916, Sec. 4313. The rules of the Department of Labor, as we understand them, also provide that a warrant should be procured before the Chinese person is arrested. See rules 23 and 24. This is similar to the practice under the Immigration Act. The cases relied on by the government arose under a different statute (27 Stats. 25 (Comp. St. Secs. 4315-4323)), relating to Chinese laborers, who failed or neglected to take out certificates of registration. See Fong Yue Ting v. United States, 149 U.S. 698, 728, 13 S.Ct. 1016, 37 L.Ed. 905.

That the statement was obtained by entirely unjustifiable methods is too clear for discussion. It would not be admissible against the defendant over objection by him in any judicial proceeding, and if used against him in administrative proceedings, where the tribunal itself is charged with the

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duty of safeguarding the defendant's rights would vitiate the result. The present proceedings were civil in their nature and judicial in character. The defendant was represented before both the commissioner and the District Court by counsel, who, as above stated, made no objection to the use of the statement on either occasion. There is no assignment of error upon it. While the commissioner or the District Judge might well on his own motion have refused to hear it, it would be going too far to say that their failure to do so constituted reversible error, or that this court hearing the case upon the same record as the District Court ought to entertain an objection to this evidence, here made for the first time. Such action would be justified only when necessary to correct a clear and grave miscarriage of justice.

The evidence does not satisfy us that such is the fact. While the testimony, if believed, was strongly in the appellant's favor, there were significant facts which militated strongly against him. Although on his story, he has spent all his life in the United States, he can speak but very little English, far less than would be expected of such a person born and brought up here. The identification of him as the Chinaman who worked in a laundry on Howard street for many years, while positively stated by three witnesses, two of them white persons, is distinctly weakened by certain parts of the testimony of the white witnesses. The real reason for the commissioner's conclusion appears to have been his solid conviction that the man before him could not be, in view of his appearance and his ignorance of our language and ways, a life-long resident of this country. It is a strong ground which the record on appeal can only imperfectly reproduce. The finding of the District Judge, while it does not carry the same weight as if he had seen the witnesses, is not without significance.

This court accepts the concurring conclusions of the tribunals below unless convinced that they were clearly wrong. In this case, for reasons already stated, the burden on the defendant is heavier than usual. He has not met it.

The decree of the District Court is affirmed.

ANDERSON, Circuit Judge (dissenting). With deference, I submit that my brethern have reached an erroneous result, on an opinion which fails adequately to present the real case and the important issues involved. As the case is, in type, one of many, illustrating what I regard as the grossly illegal methods prevailing in the Department of Labor in Chinese exclusion proceedings, I think it warrants a pretty full statement of the evidence and the applicable statutes and decisions. The case arises under the Chinese Exclusion Act, which provides that:

'Any Chinese person, or person of Chinese descent, found unlawfully in the United States, * * * may be arrested upon a warrant issued upon a complaint, under oath, filed by any party on behalf of the United States, by any justice, judge, or commissioner of any United States court, returnable before any justice, judge, or commissioner of a United States court, * * * and when convicted, upon a hearing, * * * adjudged to be one not lawfully entitled to be or remain in the United States, such person shall be removed from the United States to the country whence he came. ' Section 13, Act of September 13, 1888 (25 Sts. 476, 479 (Comp. St. Sec. 4313)). Compare 32 Sts. p. 176; 33 Sts. pp. 394, 428.

Section 3 of the Act of March 3, 1901 (31 Sts. 1093 (Comp. St. Sec. 4334)), provides:

'That no warrant of arrest for violations of the Chinese exclusion laws shall be issued by United States commissioners excepting upon the sworn complaint of a United States district attorney, assistant United States district attorney, collector, deputy collector, or inspector of customs, immigration inspector, United States marshal, or deputy United States marshal, or Chinese inspector, unless the issuing of such warrant of arrest shall first be approved or requested in writing by the United States district attorney of the district in which issued.'

The proceedings fall under rule 24 of the Department of Labor, which provides, in paragraph 1:

'Chinese inspectors and immigrant inspectors shall examine all Chinese persons resident or found within the United States not personally known to them to be legally entitled to be and remain in the country. * * * Deportation proceedings under the Chinese exclusion laws are commenced by the filing of a complaint under oath before a justice, judge or commissioner of the United States by any officer specified in section 3, Act of March 3, 1901, on behalf of the United States, alleging that the Chinese has been found unlawfully in the United States or its territories, in violation of a particular section of the statute applicable, and by the arrest of the Chinese under warrant issued upon such complaint, the warrant being returnable before

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any justice, judge or commissioner of a United States court or before any United States court.'

Manifestly-- concededly-- proceedings under this statute and rule are strictly judicial. The questions now presented are, therefore, radically different from those arising in the familiar habeas corpus case, involving, ordinarily, the rights of aliens only; in which executive orders are conclusive, unless illegal or grounded on unfair hearing; and fair hearing does not require even substantial conformity to the best evidence rules prevailing in judicial proceedings.

The vital distinction between executive orders and the trial procedure underlying such orders, and judicial proceedings, seems to have been overlooked by appellant's counsel at the trial of this case. In the present case the ultimate question is whether the appellant is a native-born citizen. This question he is entitled to have determined under all the safeguards attaching to judicial proceedings. The case was first heard by Commissioner Jenney, who entered an order of deportation. It was then submitted to the District Court on the commissioner's finding and a transcript of the evidence. The District Judge saw none of the witnesses. He was therefore in no better position to judge the crucial question of their credibility than is this court.

To present the questions here...

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