United States v. Gordon

• Decision Date: 20 June 1951
• Docket Number: No. 14300.,14300.
• Citation: 190 F.2d 16
• Parties: UNITED STATES ex rel. HEIKKINEN v. GORDON.
• Court: U.S. Court of Appeals — Eighth Circuit

190 F.2d 16 (1951)

UNITED STATES ex rel. HEIKKINEN v. GORDON.

No. 14300.

United States Court of Appeals Eighth Circuit

June 20, 1951.

Carol King, New York City, for appellant.

Howard H. Gelb, Asst. U. S. Atty., St. Paul, Minn. (C. U. Landrum, U. S. Atty. and Ben C. Marien, Immigration and Naturalization Service, St. Paul, Minn., on the brief), for appellee.

Before GARDNER, Chief Judge, and THOMAS and JOHNSEN, Circuit Judges.

GARDNER, Chief Judge.

This appeal is from an order of the trial court discharging an order to show cause and denying a writ of habeas corpus. Appellant Knut Einar Heikkinen, an alien, was born in Finland in 1890. In 1910 he went to Canada where he continued to live until he entered the United States in 1916. At the time of leaving Canada he was a citizen of that country. While living in this country he worked as a builder and as editor of various Finnish language papers. He married and has three children, all born in this country. Two daughters are married. At the time of the hearing in the trial court he was associate editor of a Finnish newspaper. His wife left him in 1932 and he followed her to Russia seeking reconciliation. He testified that he tried to live with his wife from 1932 to 1935, while they were in Russia. In 1935 he returned to the United States. While in Russia he was in charge of the transport of a Soviet building trust for one and a half years, being in charge of twenty to thirty people and twelve hauling trucks. During the remaining period of his sojourn in Russia he was a proofreader in a state publishing house. In leaving the United States in 1932 for Russia, and in returning in 1935, he did not obtain official passports. He was a member of the Communist Party from 1923 to 1930 and has attended Communist Party functions without membership subsequent to that date. Since returning to the United States he has spent fifteen years as editor of the Finnish newspaper, Eteepain. This newspaper plant was located in the same building as the National Headquarters of the Communist Party. Appellant was also editor of Tovari, a Socialist newspaper, and within the past two years has been a member of the Executive Committee of the International Workers' Order. He has never been convicted of any crime.

On November 21, 1949, appellant was arrested on a warrant issued by the Immigration and Naturalization Service. The warrant charged that appellant was subject to deportation for the reasons: (1) that he violated the Immigration Act of May 26, 1924, 8 U.S.C.A. § 201 et seq., in that at the time of entry he was not in possession of a valid immigration visa; (2) that he violated the Act of October 16, 1918, 8 U.S.C.A. § 137, in that he was at the time of entry and thereafter an alien who was a member of an organization which advises, advocates and teaches the overthrow by force and violence of the Government of the United States; and (3) that he violated the Act of October 16, 1918, in that he was at the time of entry and thereafter an alien who was a member of an organization which writes, circulates, distributes, prints, publishes and displays written and printed matter advocating the overthrow by force and violence of the Government of the United States. This warrant authorized appellant's release on bail in the sum of $10,000, but following his arrest he was released on reduced bail in the sum of $5,000.

On or about October 23, 1950, appellant was rearrested and detained by Harry Gordon, Officer in Charge of the Immigration and Naturalization Service, Department of Justice. This rearrest without bail was made pursuant to instructions by telephone and telegram from the Attorney General. Following his rearrest he filed petition for writ of habeas corpus, alleging that his rearrest had been purportedly effected under and by virtue of Section 23(a) of the Internal Security Act of 1950, 8 U.S. C.A. § 156(a); that at the time of his rearrest he was out on bail; that deportation proceedings have been instituted against him but that proceedings have neither been held nor completed; that he is advised and believes that the only reason for his rearrest is the enactment of the Internal Security Act of 1950, particularly Section 23 (a) thereof, which among other things provides that, "Pending final determination of the deportability of any alien taken into custody under warrant of the Attorney General, such alien may in the discretion of the Attorney General (1) be continued in custody; or (2) be released under bond in the amount of not less than $500, with security approved by the Attorney General, or (3) be released on conditional parole"; that this provision does not authorize such an arrest; that his rearrest is arbitrary and an abuse of discretion on the part of the Attorney General and those acting pursuant to his request. The petition contained other allegations going to the truth of the charges contained in the warrant not here deemed material. The return admitted all the allegations of fact alleged in the petition but not the conclusions asserted therein, and we think there is no dispute as to the primary or basic facts pertinent to the issues presented.

At the hearing conducted at Duluth, Minnesota, October 30, 1950, there was offered in evidence on behalf of appellee copies of a telegram sent by the Central Office of Immigration and Naturalization Service and of the warrant of arrest. Mr. Gordon testified that he had telephone instructions from the Chief of the Investigating Division in New York, where the 1949 warrant of arrest reposed, to arrest. Judge Donovan denied the application "without prejudice, however, to relators reopening for the purpose of presenting anything additional * * *." Motion for rehearing was granted and on November 10, 1950, hearing was had before three District Judges. The petition for writ of habeas corpus was again denied and this appeal followed. On application appellant was admitted to bail in the sum of $2500.00, pending appeal.

In seeking reversal appellant contends: (1) that the Attorney General abused his discretion in rearresting appellant and thereafter holding him without bail; (2) that appellant's rearrest was not within the terms of the statute; (3) that appellant was rearrested and until his release on appeal was held in custody without legal process; (4) that the court permitted the examination of appellant to go too far afield.

There is no dispute as to the basic facts. They were either admitted by the pleadings or established by uncontradicted evidence. The rules and rights of the parties in criminal and civil bail are similar in many respects. The accused or principal in either case is released from custody of the law and placed in the custody of keepers of his own selection, and it is said that the object of bail is to relieve the accused of imprisonment and the state of the burden of keeping him pending trial or hearing and at the same time to secure the appearance of the accused at the trial or hearing. The denial of bail is not intended as punishment and bail will ordinarily be granted unless the enlargement of the accused will be a menace to the public security. No conduct on behalf of the appellant occurred subsequent to his original arrest and enlargement on bail which warranted the cancellation of his bail and his rearrest. The only thing occurring during that time was the enactment on September 23, 1950, of the Internal Security Act above referred to.

It is a general rule that an order granting bail after hearing is final and res judicata as to all questions except the amount. Taylor v. Taintor, 16 Wall. 366, 21 L.Ed. 287; State v. Benedict, Ia., 234 Iowa 1178, 15 N.W.2d 248; Ex parte Marshall, Ariz., 38 Ariz. 424, 300 P. 1011; 6 Am.Juris., p. 100. Ordinarily in criminal cases, where one has been released on bail he can not be rearrested in the same jurisdiction on the same charge on which he was originally arrested. In a proceeding of this character, if subsequently to the enlargement of the accused on bail he had been guilty of conduct menacing the public security, or if evidence were discovered subsequent to the granting of bail indicating that to enlarge him would be a menace to the security of society, then doubtless, his bail might properly be revoked and he might be rearrested. In Zydok v. Butterfield, etc., 6 Cir., 187 F.2d 802, 803, the Sixth Circuit considered a case very similar to the case at bar. In that case the accused was, before his original arrest, a member of the Communist Party, and was financial secretary of the Hamtramck Division of the Communist Party of Michigan, and as such secretary he assisted in the collection of funds to be used in the defense of the Communist Party leaders who were tried and convicted in New York under the Smith Act, 18 U.S.C. § 2385, of...