237 F.2d 528 (7th Cir. 1956), 11718, United States v. Zuskar

Docket Nº:11718, 11731.
Citation:237 F.2d 528
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John ZUSKAR, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James BUDZILENI, Defendant-Appellant.
Case Date:October 24, 1956
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 528

237 F.2d 528 (7th Cir. 1956)

UNITED STATES of America, Plaintiff-Appellee,

v.

John ZUSKAR, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

James BUDZILENI, Defendant-Appellant.

Nos. 11718, 11731.

United States Court of Appeals, Seventh Circuit.

October 24, 1956

Page 529

[Copyrighted Material Omitted]

Page 530

Leo Berman, Leonard Karlin, Chicago, Ill., for John Zuskar.

Philip S. Aimen, Chicago, Ill., for James Budzileni.

Robert Tieken, U.S. Atty., Jewel Stradford Rogers, John Peter Lulinski, Asst. U.S. Attys., Chicago, Ill., for appellee.

Before MAJOR, FINNEGAN and LINDLEY, Circuit Judges.

FINNEGAN, Circuit Judge.

Each of these appeals contains a similar basic question and for that reason we treat with them in one consolidated opinion.

I. No. 11718

Zuskar, a naturalized citizen of the United States and defendant here, was subpoened 1 as a witness under § 235(a) 2 of the Immigration and Nationality

Page 531

Act of 1952, 66 Stat. 163, 198, 8 U.S.C.A. § 1225(a) to give testimony before the Immigration and Naturalization Service regarding one Calvin Brook. Personal service was made, August 27, 1954, on the defendant. Acting upon the government's invocation of § 235(a) by its petition, the district judge entered an ex-parte order, September 29, 1954, compelling Zuskar to appear before the Service on October 13, 1954. Two days prior to this latter date, counsel for defendant filed a written motion seeking dismissal of the complaint and vacation of the order grounded on it. A time extension was granted defendant within which to submit his written brief and the government, later, presented its memorandum in reply. These briefs, as are several others subsequently filed below by the parties, are significant because they contain the few recitations of non-evidentiary facts mentioned in the entire cause, but which are apparently undisputed. We can only decide the case before us on facts exhibited by the record and there is an utter paucity of evidence supporting the issues framed by defendant.

Relying upon the authority of our decision reported as United States v. Vivian, 7 Cir., 1955, 224 F.2d 53 the district judge overruled defendant's motion and issued an order, dated February 2, 1956, directing Zuskar to appear and give testimony before Joseph H. Kadlec, an investigator of the Service, 'relating to Calvin Brooks.' Thereafter the defendant interposed a motion asking for reconsideration of the February order. Again the government responded with a written answer replying to defendant's detailed memorandum submitted in support of his latest motion. After the same district judge, who had acted throughout the earlier stages of this matter heard oral arguments of counsel for both the parties, he denied the motion for reconsideration and again issued an order compelling obedience to the administrative subpoena. This appeal followed.

We are informed in the government's brief on appeal that the facts set out in defendant's brief are substantially correct save in one or two enumerated details. If we treat such recitations as uncontroverted, it then appears from defendant's brief that '* * * He duly appeared at the time and place (referring to the Director's initial subpoena underlying the court order) through his attorney, that he was not apprised of the nature of the hearing, what was sought to be heard or discovered, the scope of the inquiry * * *'

Though defendant insists he may himself be the subject of inquiry by the Service he has failed in making any showing on that point. The superficial resemblance of this case to United States v. Minker, 1956, 350 U.S. 179, 76 S.Ct. 281, 283, is suggested solely by defendant's argument, which evaporates for want of some evidence to give it substance. Mr. Justice Frankfurter carefully delineated the 'controlling issue' disposed of in the Minker opinion when he said it was: '* * * whether this section (§ 235(a)) empowers an immigration officer to subpoena a naturalized citizen who is the subject of an investigation by the Service, where the purpose of the investigation is to determine if good cause exists for the institution of denaturalization proceedings under § 340(a) of the Act.' (Italics supplied.) Actually there were two conflicting Circuit

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Court cases disposed of in United States v. Minker, 1956, 350 U.S. 179, 180, 182-183, 76 S.Ct. 281. A Third Circuit case, reported in 1955, 217 F.2d 350, 351 shows that the Director's subpoena required Minker, a naturalized citizen, 'to appear and testify as a witness in an administrative proceeding entitled 'In re Abraham Minker ". (Id.) The 'doubtful question' involved there was stated by Judge Hastie as being 'whether Abraham Minker, in his relation to 'In re Minker' is a 'witness' within the meaning of Section 235(a).' (Id. at page 351).

Falcone v. Barnes (Application of Barnes, 2 Cir., 1955, 219 F.2d 137, 139), is the other companion group of cases that were considered with Minker by the Supreme Court. Judge Medina, speaking for his court, said: 'The sole question raised by these two appeals is whether Section 235(a) * * * authorizes an officer of the * * * Service to issue a subpoena requiring a naturalized citizen to testify, in an effort to determine if 'good cause' exists for the commencement of proceedings to revoke the order admitting such person to citizenship.' (Id. at page 139).

At bar, Zuskar was subpoened to testify 'In re Calvin Brook, file 0900-50383.' While the instant administrative subpoena may be drawn to obscure what it seeks to reveal we cannot afford enough speculation to bring it within the Minker facts. This is not a problem...

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