United States v. Zuskar

• Decision Date: 24 October 1956
• Docket Number: 11731.,No. 11718,11718
• Citation: 237 F.2d 528
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John ZUSKAR, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James BUDZILENI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

237 F.2d 528 (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.

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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 subpoened¹ as a witness under § 235 (a)² of the Immigration and Nationality 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 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 XXXX-XXXXX." 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 of what we could envisage in this perspective, but rather an inquiry about the perspective itself. As we read the Minker opinion § 235(a), which otherwise survived judicial scrutiny, is unavailable to the Service for instances described in the "controlling issue" already noted. The facts before us are unlike those upon which the Minker case holding was reached. Much of defendant's arguments erected with excerpts from the several opinions handed down by the Minker court, and extirpated from other sources are quickly dispelled with a trenchant passage written by Chief Justice Marshall in Cohens v. Commonwealth of Virginia, 1821, 6 Wheat. 264, at page 398, 5 L.Ed. 257:

"The counsel for the defendant * * * urge * * * some dicta of the court, in the case of Marbury v. Madison 1 Cranch 137, 2 L.Ed. 60. It is a maxim, not to be disregarded, that general expressions, in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in the subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated."

We could only follow United States v. Minker, 1956, 350 U.S. 179, 76 S.Ct. 281 by ignoring critical factual disparities between that case and Zuskar's. All this record discloses is an attempt to compel appearance and testimony of a recalcitrant witness. If there is a subterfuge lurking in the Director's subpoena the defendant has done little to reveal it other than urge that his appearance and testimony might turn the tables on him. Our business is with facts. Indeed by that line of argument Zuskar virtually concedes he is only a witness, but one fearful of potentialities.

The constitutional attack launched against § 235(a) is woefully tenuous. Administrative subpoenas³ and court orders for their enforcement have been previously examined in the case-controversy and separation of governmental powers settings. Interstate Commerce Commission v. Brimson, 1894, 154 U.S. 447, 489, 14 S.Ct. 1125, 38 L.Ed. 1047. Since Brimson Congress has customarily provided for resort to the courts by agencies for orders compelling obedience to subpoenas. See e. g. Lilienthal, The Power of Governmental Agencies To Compel Testimony, 39 Harv.L.Rev. 694 (1926); Handler, The Constitutionality of Investigations By The Federal Trade Commission, 28 Col.L.Rev. 708 and 905 (1928). The present appeal does not involve a subpoena duces tecum.

Much of defendant's core theories are based upon statements that Calvin Brook is a naturalized citizen or that the basic subpoena fails to state he is an alien. Neither side has troubled to establish Brooks' citizenship status as an evidentiary fact. Yet defendant asks us to read § 235(a) as being inapplicable when the subject of the Service's investigation is a citizen of the United States. Defendant seems to be arguing on behalf of Calvin Brook. But § 235(a) contains the word "person" in connection with the investigatory powers mentioned in that provision. If Brooks is a person his citizenship status is a matter of proof by him in his own proceeding and not a matter of defense to a subpoena by Zuskar. We decline to pass upon the constitutionality of § 235(a) by guessing about Brook's citizenship, recitations in defense motions and briefs notwithstanding.

Mr. Justice Frankfurter supplied a compact over-view of the relevant legislative changes and the necessary result which followed, as part of the majority opinion in United States v. Minker, 1956, 350 U.S. 179, 184-185, 76 S.Ct. 281, 285:

"The 1952 Act in § 235(a) retained the substance of this language in § 16. But the word `alien\' was changed to `person,\' and additional language extended the subpoena power to `any matter which is material and relevant to the enforcement of this Act and the administration of the Service.\' If the additional clause, following the portion `relating to the privilege of any person to enter, reenter, reside in, or pass through the United States\', had merely read `and any other matter

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