Graham v. United States

• Citation: 99 F.2d 746
• Decision Date: 28 October 1938
• Docket Number: No. 8751.,8751.
• Parties: GRAHAM v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

99 F.2d 746 (1938)

GRAHAM v. UNITED STATES.

No. 8751.

Circuit Court of Appeals, Ninth Circuit.

October 28, 1938.

A. L. Wirin and Lee Baylor Stanton, both of Los Angeles, Cal., for appellant.

Ben Harrison, U. S. Atty., and Francis C. Whelan, Asst. U. S. Atty., both of Los Angeles, Cal.

Before WILBUR and DENMAN, Circuit Judges, and ST. SURE, District Judge.

WILBUR, Circuit Judge.

This is an appeal from a judgment arising out of proceedings criminal in their nature holding appellant guilty of contempt of court and sentencing him to six months imprisonment therefor. The proceedings were initiated by the United States attorney who, on December 11, 1937, filed an information for criminal contempt alleging therein that appellant was ordered by the District Court to appear before an inspector of the United States Immigration and Naturalization Service and to "produce his birth certificate and his passports for entry into the United States and any other papers and documents he might have touching his citizenship and his birthplace and his emigration to and immigration into the United States of America," and "then and there to testify before said immigrant inspector and answer such questions as might be submitted to him touching his birthplace, his entry into the United States, his citizenship and his right to be and remain in the United States." It is alleged that appellant appeared at the time and place designated in the order but "refused to answer any question whatever that was submitted to him by the said immigrant inspector." A copy of the reporter's transcript of proceedings before the immigrant inspector is attached to the information and shows the questions which were asked appellant and his refusal or failure to answer each of them.

The appellant entered a plea of not guilty and filed an answer entitled "a plea in bar" alleging that the deportation proceedings pending before the Department of Labor against appellant are illegal and constitute a denial of due process of law; that the questions asked him by the immigrant inspector would, if answered, "tend to incriminate him under an act of Congress approved May 22, 1918 (40 Stat. 559, and 40 Stat. 1829 see 22 U.S.C.A. §§ 223, 224), which makes it a felony for an alien to enter the United States without a permit so to do, in time of war; * * * and under the Criminal Syndicalism Law of the State of California Stats.1919, p. 281, Deering's General Laws of Cal.1931, Act 8428 and the Sedition Law of the United States 50 U.S.C.A. §§ 33, 34; 18 U.S.C.A. § 6; * * * under acts of Congress approved March 4, 1929 (40 45 Stat. 1551), and 8 U.S.C.A. § 180a, which in effect state that one ordered deported who has left the United States shall be considered to have been deported, and that the entry of an alien at an improper time or place eluding examination or inspection shall constitute a misdemeanor"; that the order of the court directing appellant to testify before the immigrant inspector was erroneously secured under the authority of 8 U.S.C.A. § 152, in that such statute applies only to exclusion cases and does not apply to deportation cases.

A general demurrer was filed to the answer or "plea in bar" on January 10, 1938, and on January 13, 1938, the court sustained the demurrer, overruled the plea in bar, evidence was adduced and appellant was found in contempt of court and sentenced to six months in the county jail of Orange County. The sentence authorized appellant's release "upon proof to the court by proper showing by certificate to be filed in court that the defendant has submitted himself to the proper immigration authorities for interrogation regarding the defendant's right to remain in the United States."

The so-called plea in bar was merely an allegation of facts which were placed in issue by the plea of not guilty. However, it was assumed by the parties in the trial court that the general demurrer to the plea in bar sufficiently presented the question as to whether or not the facts therein alleged constituted a defense to the charge of contempt.

The first question thus attempted to be presented by the answer is whether or not there was in effect a denial of due process during the progress of the deportation proceeding, by the alleged unfairness thereof. Even if the deportation proceeding was being conducted so that the final order thereunder would have been subject to the objection that it was made without according the appellant such a fair hearing as is necessary to due process of law, that fact would not be a defense to the charge that a witness in such proceeding declined to answer relevant questions concerning the citizenship of the appellant as ordered by the District Court.

The third question presented by the plea in bar is the claim that the provisions of 8 U.S.C.A. § 152 do not authorize a District Court to order a witness to testify in investigations being conducted by the immigration authorities in deportation cases, but only apply to exclusion cases. We think these provisions are applicable to both. The statute provides: "Any commissioner of immigration or inspector in charge shall also have power to require by subpoena the attendance and testimony of witnesses before said inspectors and the production of books, papers, and documents touching the right of any alien to enter, reenter, reside in, or pass through the United States; * * * and any district court within the jurisdiction of which investigations are being conducted by an immigrant inspector may, in the event of neglect or refusal to respond to a subpoena issued by any commissioner of immigration or inspector in charge or refusal to testify before said immigrant inspector, issue an order requiring such person to appear before said immigrant inspector, produce books, papers, and documents if demanded, and testify; and any failure to obey such order of the court may be punished by the court as a contempt thereof." (Italics ours.) See Loufakis v. United States, 3 Cir., 81 F.2d 966.

As to the portion of the answer or "plea in bar" dealing with self incrimination, two questions are presented: the first is whether or not the Fifth Amendment to the Constitution, U.S.C.A.Const. Amend. 5, protects a witness testifying in the federal courts or before an administrative body from giving evidence therein which would tend to show his guilt under the criminal law of a state. At one time this question was not free from doubt. Compare Ballman v. Fagin, 200 U.S. 186, 195, 26 S.Ct. 212, 50 L.Ed. 433, with Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L. Ed. 652; U. S. ex rel. Vajtauer v. Commissioner, 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560. Now that question is definitely settled by the Supreme Court in United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, where it was held that the danger and claim that the witness might make disclosures tending to show him guilty of a violation of a criminal law of a state is not enough to invoke the immunity from testifying given by the Fifth Amendment to the Federal Constitution. See United States v. Murdock, 290 U.S. 389, 396, 54 S.Ct. 223, 226, 78 L.Ed. 381.

The other aspect of the question arises under the contention of the government in the lower court sustained, as its opinion shows, by that court, to the effect that inasmuch as deportation proceedings are civil in nature the immunity from self incrimination granted by the Fifth Amendment to the...