ex parte Fierstein

• Decision Date: 20 June 1930
• Docket Number: No. 6072.,6072.
• Citation: 41 F.2d 53
• Parties: Ex parte FIERSTEIN. FIERSTEIN v. CONATY, Acting District Director of Immigration Service.
• Court: U.S. Court of Appeals — Ninth Circuit

41 F.2d 53 (1930)

Ex parte FIERSTEIN.

FIERSTEIN v. CONATY, Acting District Director of Immigration Service.

No. 6072.

Circuit Court of Appeals, Ninth Circuit.

May 19, 1930.

Rehearing Denied June 20, 1930.

John Beardsley, of Los Angeles, Cal., for appellant.

Samuel W. McNabb, U. S. Atty., and P. V. Davis, Asst. U. S. Atty., both of Los Angeles, Cal. (Harry E. Blee, Immigration Service, of Los Angeles, Cal., on the brief), for appellee.

Before RUDKIN and WILBUR, Circuit Judges, and KERRIGAN, District Judge.

WILBUR, Circuit Judge.

Appellant is detained on a deportation warrant. He applied to the District Court for writ of habeas corpus, and the application was denied. It is admitted that appellant is an alien, a native and citizen of Russia, and a member of the Communist Party in the United States. The appellant was arrested while at the headquarters of this organization, and in connection with his arrest some of the literature used by the party was seized. Before the immigration authorities, counsel for the appellant objected to the use of this literature, on the ground that it was seized without a search warrant and in violation of the rights of the appellant. This literature was received in evidence before the immigration authorities of Los Angeles, but the Board of Review at Washington, in its decision, announced that it would disregard this evidence and base the order of deportation upon the other evidence before it. By stipulation of the parties, the record before the immigration authorities was brought before the District Court on appeal for consideration, and none of the exhibits seized at the time of the arrest of the appellant are contained in that record. There is therefore no evidence in the record with reference to the nature of the Communist Party other than the testimony of the appellant and of a police officer, which will be hereinafter referred to.

The appellant denied that the party was committed to a program of violence, and, if his testimony was believed, the facts stated in the warrant of deportation with reference to the character of the organization with which the appellant is affiliated are untrue. The police detective, William F. Hynes, in charge of the radical section of the Bureau, who arrested the appellant, in response to a question by appellant's attorney, testified as follows: "Q. Is it your view that mere membership in the Communist Party is sufficient warrant for the deportation of the alien?"

The inspector prevented an answer by stating that "the Secretary of Labor will decide that question." Thereupon the attorney for the appellant asked the inspector if he declined to permit the witness to answer the question. The inspector thereupon asked the witness: "Are you qualified to answer that question, Mr. Hynes?"

"A. I don't know if I am qualified. I was formerly a member of the communist party in 1922; and I would say that the knowledge that I gained in the party at that time, and reading the various documents, books and papers issued by the Workers Communist Party of America and the Communist Internationale, I have no doubt but what in my mind but what the Communist Party is the party which believes in, teaches and advocates the overthrow of the Government of the United States and of all organized government by force and violence.

"By Attorney. Q. You have been a member of the Workers Communist Party of America, have you? A. I was a member of the Workers Party of America which is now the Workers Communist Party of America; and I may say I was a member of the Workers Party of America in Los Angeles and at the same time I was a member of the Los Angeles Police Department and it was in that connection I joined."

"Q. You never have been a member of the Workers Communist Party of America? A. As I say there...