Ex parte Tozier

• Decision Date: 05 April 1924
• Citation: 2 F.2d 268
• Parties: Ex parte TOZIER.
• Court: U.S. District Court — District of Maine

2 F.2d 268 (1924)

Ex parte TOZIER.^*

District Court, D. Maine.

April 5, 1924.

John F. A. Merrill, of Portland, Me., for appellant.

Joseph E. F. Connolly, of Portland, Me., for appellee.

MORTON, District Judge.

Habeas corpus to the Commissioner of Immigration to secure the discharge of the petitioner, who is held for deportation. The facts, which for the most part are not seriously in dispute, are as follows:

The petitioner came to this country from Canada in 1912, and has for many years practiced medicine in and near Portland. In January, 1923, and for some time previous, he conducted a sanitarium for the treatment of drug addicts and persons suffering from alcoholism. He owns real estate worth $25,000 or $30,000, subject to an incumbrance, according to the testimony, of only $1,000. On or about January 24, 1923, he went to Montreal, Canada, to see a friend. He returned to this country two days later, on January 26, 1923. At that time he was not an American citizen, nor had he declared his intention of becoming one. He passed whatever inspection and examination was required at the frontier and was duly admitted. As he was a resident alien, long domiciled in this country, the examination was hardly more than a formality. There is no question but what at that time, and at his original entrance in 1912, he complied with all the requirements of law.

In 1922 several indictments had been returned into the United States District Court of Maine against various persons, among them Ruth and Fry, who were United States narcotic inspectors, for a conspiracy to extort money from physicians and others by threats of prosecution for violations of the Narcotic Drugs Act (Comp. St. §§ 6287g-6287q). Two indictments were returned against the petitioner in this connection. In one indictment against Ruth and Fry, the petitioner was named as one of the conspirators, but not as one of the defendants. When this indictment was tried before Judge Peters and a jury in December, 1922, the petitioner was called and testified as a government witness. It was the understanding of the United States attorney and of the District Judge, as appears by his letter in the file, that Tozier would not be prosecuted if he so testified, and assurances to that effect were given him by the United States attorney. Ruth was acquitted, and Fry was convicted and is now serving prison sentence.

In February, 1923, deportation proceedings were instituted against Tozier, based upon allegations that at the time of his return to this country from Montreal on January 26, 1923, he was likely to become a public charge, and had been convicted of or had admitted the commission of the crimes of extortion, bribery, or conspiracy. There were several hearings under this warrant. Eventually the proceedings were dropped and the warrant canceled.

In July, 1923, another warrant proceeding was instituted against him upon the same grounds, viz. that "he was a person likely to become a public charge at the time of his entry, and that he has been convicted of or admits the commission of a felony or other crime or misdemeanor involving moral turpitude prior to his entry, to wit, bribery, conspiracy to defraud, or extortion" (warrant of July 6, 1923). Several hearings were held under this warrant, at which the petitioner was represented by counsel. Inspector Howes, by whom the case was heard in the first instance, reported: "He the alien does not admit in so many words the commission of a felony, or other crime of misdemeanor involving moral turpitude; * * * but prior to his departure from the United States he admitted that he was guilty of extortion, as evidenced by his testimony given as a witness" in the case against Fry and Ruth. The inspector further found that, as there were outstanding indictments against Tozier on which he might be convicted, he was therefore a person likely to become a public charge. On appeal the Board of Review, on whose findings the Second Assistant Secretary acted in ordering deportation, found in favor of the alien on the allegation that he was likely to become a public charge. There was no evidence that he had ever been convicted of any crime, and this ground was not relied on by the government. The board found that the transcript of Tozier's testimony in U. S. v. Fry sustained the charge that he had admitted the commission of a crime sufficient to warrant deportation.

There are two questions: (1) Whether the finding is sufficient on its face to justify the action taken; (2) whether there was any evidence in support of it.

The act excludes, inter alia, any alien "who was convicted, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude." Section 19 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289¼jj). Of course, bribery, extortion, and conspiracy of the kind here in question are such crimes. So the real question is: What is meant by the expression "admits the commission of" a crime. The dictionary synonyms for "admit" are "acknowledge"; "confess." See Ziang Sun Wan v. U. S., 53 App. D. C. 250, 289 F. 908, 1913; Commonwealth v. Dascalakis, 243 Mass. 519, 137 N. E. 879. In law the word "admissio...