Fitzgerald v. Landon

• Decision Date: 17 December 1956
• Docket Number: No. 5163.,5163.
• Citation: 238 F.2d 864
• Parties: James E. FITZGERALD ex rel. Lorenzo MICELI, Petitioner, Appellant, v. H. R. LANDON, District Director, United States Immigration and Naturalization Service, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

238 F.2d 864 (1956)

James E. FITZGERALD ex rel. Lorenzo MICELI, Petitioner, Appellant, v. H. R. LANDON, District Director, United States Immigration and Naturalization Service, Respondent, Appellee.

No. 5163.

United States Court of Appeals First Circuit.

December 17, 1956.

James E. Fitzgerald, Boston, Mass., for appellant.

George H. Lewald, Asst. U. S. Atty., Boston, Mass., with whom Anthony Julian, U. S. Atty., and Andrew A. Caffrey, Asst. U. S. Atty., Boston, Mass., were on brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

The present appeal is from an order of the district court dismissing a petition for a writ of habeas corpus in a deportation case. It may be wondered how appellant could have expected the district court to rule other than it did on the very meager record in this case.

In the petition filed by appellant on behalf of the alien Lorenzo Miceli it was alleged that Miceli was being unlawfully restrained of his liberty by the defendant as District Director of the Immigration and Naturalization Service, pursuant to an illegal warrant of deportation; that such warrant was founded on § 241 (a) (4) of the Immigration and Nationality Act, 66 Stat. 204, 8 U.S.C.A. § 1251(a) (4), providing that an alien shall, upon order of the Attorney General, be deported who "at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial" italics added; that on November 2, 1953, the Chief of Police of Pittsfield, Massachusetts, filed in the District Court of Central Berkshire two complaints against Miceli; that the first of these complaints charged that Miceli on October 23, 1953, "did commit an indecent assault and battery on Carol Litano, a child under the age of fourteen"; that the second of these complaints charged that Miceli on October 23, 1953 and "during the three months next before the making of this complaint was a lewd, wanton and lascivious person in speech or behavior"; that Miceli was tried before the District Court of Central Berkshire in a single trial on these two charges; that he was convicted of both offenses, on the first of which he was sentenced to two and one-half years and on the second of which he was sentenced to six months, to be served concurrently at the House of Correction; that the Special Inquiry Officer unfairly and arbitrarily refused to apply the law "that the foregoing crimes arose out of a single scheme of criminal misconduct"; that this arbitrary and unfair decision was made although evidence had been accepted in the form of two sworn statements, one by the trial judge and the other by the Chief of Police "both of whom agreed that the acts arose out of a single scheme of criminal misconduct."

In response to a show-cause order, respondent filed his return, setting forth that Miceli was in his custody "by virtue of a valid Warrant of Deportation issued April 6, 1956"; admitting that Miceli had been convicted of the two offenses as alleged in the petition, but asserting that the Special Inquiry Officer found that Miceli "had been convicted of two crimes not constituting a single scheme of criminal misconduct on evidence presented to him;" and denying that the Special Inquiry Officer had acted arbitrarily or unfairly. Further, the return asserted "that the decision of the Special Inquiry Officer was based on reasonable, substantial, and probative evidence"; that on October 25, 1955, the Special Inquiry Officer ordered Miceli to be deported from the United States on the charge contained in the Warrant of Arrest; that on appeal to the Board of Immigration Appeals that Board, after hearing, dismissed the appeal from the decision; that all the administrative proceedings were conducted in conformity with the provisions of the Act, as construed by the Supreme Court in Marcello v. Bonds, 1955, 349 U.S. 302, 75 S.Ct. 757, 99 L. Ed. 1107.

It nowhere appears that petitioner sought, and was denied, an opportunity to present evidence to the court below. The transcript of the administrative proceedings had not been appended as an exhibit to the return, nor did petitioner offer in evidence a certified copy thereof. Therefore the district court did not have before it the record of the administrative proceedings, including a transcript of the evidence presented to the Special Inquiry Officer, on the basis of which Miceli was ordered to be deported on the charge contained in the Warrant of Arrest. All the district court had before it was the petition for the writ, and respondent's return to the order to show cause.

The district court's order, now on appeal, after reciting that the case had come on "for hearing upon return of summons to show cause on petition of the relator for writ of habeas corpus, and after argument by the plaintiff," ordered that the petition be dismissed and the writ denied.

When the Congress provided for the deportation of aliens who at any time after entry had been convicted of two crimes involving moral turpitude "not arising out of a single scheme of criminal misconduct," the Congress evidently had in mind that a criminal, while engaged in a single criminal enterprise, might be guilty of two or more distinct offenses. See Burton v. United States, 1906, 202 U.S. 344, 26 S.Ct. 688, 50 L. Ed. 1057; Gavieres v. United States, 1911, 220 U.S. 338, 31 S.Ct. 421, 55 L. Ed. 489; see, generally, Ekberg v. United States, 1 Cir., 1948, 167 F.2d 380, 384 et seq. Thus one engaged in a single scheme of robbing a bank may be guilty of the offense of robbery, and also of the offense of inflicting a criminal battery upon a bank official....