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,


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.


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


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...

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