United States v. Regan

• Citation: 203 F. 433
• Decision Date: 10 February 1913
• Docket Number: 95.
• Parties: UNITED STATES v. REGAN.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

203 F. 433

UNITED STATES v. REGAN.

No. 95.

United States Court of Appeals, Second Circuit.

February 10, 1913

In Error to the District Court of the United States for the Southern District of New York; James L. Martin, Judge.

Henry A. Wise and A. S. Pratt, Asst. U.S. Atty., both of New York city.

Max D Steuer and J. A. Leve, both of New York City, for defendant in error.

Before LACOMBE, COXE, and WARD, Circuit Judges.

WARD Circuit Judge.

The United States brought this action of debt against James B Regan, proprietor of the Knickerbocker Hotel, New York, to recover a penalty of $1,000 for assisting the importation of a contract laborer, viz., one Foreau, a citizen of France, to be employed as a pastry cook in the hotel, under sections 4 and 5 of the act of February 20, 1907 (34 Stat. 900, c. 1134 (U.S. Comp. St. Supp. 1911, p. 503)), which read:

'Sec 4. (Importing contract labor a misdemeanor.) That it shall be a misdemeanor for any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation or in any way to assist or encourage the importation or migration of any contract laborer or contract laborers into the United States, unless such contract laborer or contract laborers are exempted under the terms of the last two provisos contained in section two of this act.

'Sec. 5. (Penalty for violations-- Suits by informer.) That for every violation of any of the provisions of section four of this act the persons, partnership, company, or corporation violating the same, by knowingly assisting, encouraging, or soliciting the migration or importation of any contract laborer into the United States shall forfeit and pay for every such offense the sum of one thousand dollars, which may be sued for and recovered by the United States, or by any person who shall first bring his action therefor in his own name and for his own benefit, including any such alien thus promised labor or service of any kind as aforesaid, as debts of like amount are now recovered in the courts of the United States; and separate suits may be brought for each alien thus promised labor or service of any kind as aforesaid. And it shall be the duty of the district attorney of the proper district to prosecute every such suit when brought by the United States.'

At a former trial a judgment for the government was reversed and the case sent back for a new trial. In the opinion then handed down we held, among other things, that the evidence offered by the government must satisfy the jury beyond a reasonable doubt that the defendant was guilty of the offense charged. 183 F. 293, 105 C.C.A. 505, 31 L.R.A. (N.S.) 1073. Upon this trial the court so charged, and the jury rendered a verdict for the defendant. The government seeks to raise this question again on the ground that the action is a civil action, and in respect to procedure and proof is to be treated as such (United States v. Zucker, 161 U.S. 475, 16 Sup.Ct. 641, 40 L.Ed. 777; Hepner v. United States, 213 U.S. 103, 29 Sup.Ct. 474, 53 L.Ed. 720, 27 L.R.A. (N.S.) 739, 16 Ann.Cas. 960), although it is admitted the defendant is protected by constitutional guaranties; e.g., that of the fourth amendment, securing the people 'against unlawful searches and seizures' (Boyd v. United States, 116 U.S. 616, 6 Sup.Ct. 524, 29 L.Ed. 746), and of the fifth amendment, that 'no one shall be compelled in any criminal case to be a witness against himself' (Lees v. United States, 150 U.S. 476, 14 Sup.Ct. 163, 37 L.Ed. 1150). We remain of the opinion that under this act, which makes the offense a misdemeanor, the government, even when proceeding against the defendant for the penalty only, must furnish the degree of proof required in a criminal case. It was in our opinion so held in Chaffee v. United States, 18 Wall. 516, 21 L.Ed. 908. There the government sought to recover of the defendants penalties aggregating $800,000, and the jury rendered a verdict for $235,680. The trial judge charged the jury:

'The proof in the outset may be defective. It may not be sufficient to enable you, without any doubt or hesitation, to find against the defendants, and still it may be your duty, nevertheless, so to find; for although I instruct you that the case must be made out beyond all reasonable doubt in this, as well as in criminal cases, yet the course of the defendants may have supplied, in the presumptions of law, all which this stringent rule demands. In determining, therefore, in the outset whether a case is established by the government, you will dismiss from your minds the perplexing question, whether it is so made out beyond all doubt. It needs not, in the exigencies of this case, be so proved in order to throw the burden of explanation upon the defendant, if from the facts you believe he has within his reach that power. In the end all reasonable doubt must be removed; but here, at this stage, you need only say, 'Is the case so far established as to call for explanation?' * * * ' Without exception, where a party has proof in his power, which, if produced, would render certain material facts, the law presumes against a party who omits it, and authorizes a jury to resolve all doubts adversely to his defense. The same rule is applicable in a case where a party once had proof in his power which had been voluntarily destroyed or placed beyond his reach.' If you believe the books were kept which contained the facts

...