472 F.2d 720 (5th Cir. 1972), 71-1928, United States v. Wong Kim Bo

Docket Nº:71-1928.
Citation:472 F.2d 720
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. WONG KIM BO, a/k/a Yee Kuk Ho, etc., Defendant-Appellant.
Case Date:December 18, 1972
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 720

472 F.2d 720 (5th Cir. 1972)

UNITED STATES of America, Plaintiff-Appellee,

v.

WONG KIM BO, a/k/a Yee Kuk Ho, etc., Defendant-Appellant.

No. 71-1928.

United States Court of Appeals, Fifth Circuit.

December 18, 1972

Page 721

Anthony S. Battaglia, Howard P. Ross, St. Petersburg, Fla., for defendant-appellant.

John L. Briggs, U. S. Atty., William M. James, Jr., Claude H. Tison, Jr., Asst. U. S. Attys., Tampa, Fla., for plaintiff-appellee.

ON PETITION FOR REHEARING

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

PER CURIAM:

By Petition for Rehearing the government strenuously urges that the original opinion in this case, 466 F.2d 1298, was in error in imputing such critical importance to the words "arrested and" in 8 U.S.C.A. § 1326. "The simple, and correct, answer," the government suggests, "* * * is that the term 'arrested and' in the statute is now meaningless. * * * It is, indeed, surplusage." Petition for Rehearing at page 9.

To support this curious assertion, the government argues three points. First, it is pointed out that previous decisions have virtually ignored the "arrested and" language of the statute and concentrated on the "deportation" terminology. Undeniably this is so, but the argument is of no moment. The mere fact that, as the government concedes, no previous Court has been confronted with the precise argument raised in this appeal certainly cannot prevent this Court from considering this

Page 722

question of first impression and interpreting the statute involved.

More importantly, the cases cited by the government are either readily distinguishable or not in point. In the Mrvica case, 1 for example, the issue of "arrest" was never even mentioned, let alone decided. Moreover, a Warrant for the Arrest of Mrvica was apparently issued on September 4, 1942 (see dissenting opinion of Justice Goldberg, 376 U.S. at 569, 84 S.Ct. at 838, 11 L.Ed.2d at 917) and executed by the INS before the alien's re-entry (see 376 U.S. at 564, 84 S.Ct. at 836, 11 L.Ed.2d at 914).

Mrvica involved a civil deportation proceeding. Much more latitude is tolerable in a civil deportation case than in a criminal prosecution such as the case at bar in which the criminal statute must be strictly construed.

The Bruno 2 case on which the government relies is similarly inapposite. Bruno was arrested after his order of deportation and pursuant to a Warrant on April 23, 1943. See 328 F.Supp. 818. And the Cabanillas 3 case cited by the government only reinforces the decision rendered here. Although the "arrest" issue was not presented in that case, certain rules of statutory construction enunciated there are useful in the case at bar:

In construing statutes, words are to be given their natural, plain, ordinary and commonly understood meaning unless it is clear that some other meaning was intended, Malat v. Riddell, 383 U.S. 569, 86 S.Ct. 1030, 16 L.Ed.2d 102 (1966); and where Congress has carefully employed a term in one place and excluded it in another, it should not be implied where excluded. City of Burbank v. General Electric Company, 329 F.2d 825 (9 Cir. 1964). 394 F.2d at 789.

By the same reasoning, words in statutes should not be discarded as "meaningless" and "surplusage" when Congress specifically and expressly included them, particularly where the words are excluded in other sections of the same act. Compare 8 U.S.C.A. § 1326 with 8 U.S.C.A. § 1101(g). But the Court in Cabanillas went further:

The Immigration and Nationality Act represents the...

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