In re Giacobbi

• Citation: 32 F. Supp. 508
• Parties: In re GIACOBBI.
• Decision Date: 27 July 1939
• Court: U.S. District Court — Northern District of New York

32 F. Supp. 508

In re GIACOBBI.

District Court, N. D. New York.

July 27, 1939.

COPYRIGHT MATERIAL OMITTED

Rulison, Parker & Ryan, of Syracuse, N. Y., for petitioner-relator.

Ralph L. Emmons, U. S. Atty., of Syracuse, N. Y., and Andrew J. Culick, Asst. U. S. Atty., of Amsterdam, N. Y., for respondent.

COOPER, District Judge.

This is a writ of habeas corpus granted upon the petition of one Andrea Giacobbi, brother of the above-named relator, Salvatore Giacobbi.

The said Salvatore Giacobbi will be hereinafter referred to as the relator.

On May 27th, 1936, J. Arthur Fluckey, the inspector in charge of the Syracuse office of the U. S. Immigration and Naturalization Service, applied for and recommended to the Secretary of Labor that a warrant be issued for the above relator on certain charges, including the charge of sharing in the earnings of a prostitute which is ground for deportation under 8 U.S.C.A. § 155.

The application and recommendations were based on the evidence obtained by the Syracuse Police Department and upon investigation by Immigration Inspector Michael J. Costello.

The inspector's recommendation was made by telegraph and on May 27, 1936, a warrant for the arrest of the relator was issued by Turner Battle, Assistant to the Secretary of Labor, and transmitted by telegraph in code.

On May 28th, 1936, the department assigned the case to Inspector S. B. Allan, who served the warrant of arrest upon the relator and gave the said relator a hearing and a brief statement of the conduct or charges which were given as cause for deportation.

The first hearing was held by Inspector S. B. Allan at the Police Headquarters, Syracuse, N. Y., on May 28, 1936.

There were present only the inspector and the relator.

The relator was asked his name, which he gave, and asked if he understood the English language to which he replied in the affirmative.

The record then shows the following:

"You are advised that you have been arrested under the Warrant of the Secretary of Labor, which warrant reads:

"Arrest the following named alien, Salvatore Giacobbi, alias Sam Giacobbi, alias Sam Jacobs, on the charge that he has been found assisting a prostitute and that he has been receiving, sharing in, or deriving benefit from the earnings of a prostitute, and grant hearing, forwarding record of proceedings to the Department. Release under bond in the amount of $2,000."

The alien was informed that if he was deported and attempted to return, he would be guilty of a felony and subject to $1,000 fine and two years' imprisonment.

The alien stated that he understood the nature of the proceedings; that he would try to obtain bail and that he wished to be represented by counsel.

The hearing was adjourned to June 22, 1936, to enable the alien to obtain counsel.

William Ryan, one of the attorneys for the relator, appeared before Inspector Fluckey on May 28, 1936, and demanded the immediate release of the said relator without bond or surety.

On May 29, 1936, one of the attorneys for the relator appeared before the said Inspector Fluckey and insisted that he accept and approve a bond executed by his individual surety, without producing the sureties for questioning. Production of sureties was refused.

On June 1, 1936, attorney for the relator obtained a writ of habeas corpus from a justice of the Supreme Court of the State of New York, addressed only to the Sheriff of Onondaga County, in whose custody the relator then was.

Thereafter, and on June 3, 1936, this surety appeared and executed a bond which was accepted and approved by the Supreme Court justice.

The hearing on the warrant of arrest was delayed from time to time, alleged by the Inspector Fluckey to have been granted for the convenience of counsel for the relator, and the hearing was finally held before Inspector Allan, an inspector of the Syracuse office, on March 30th, 1937.

The return to the writ shows these things:

At the hearing on March 30th, 1937, there were present Inspector Allan, who conducted the hearing, the alien relator, Howard V. Rulison and Wm. A. Ryan, attorneys for the alien relator an interpreter, clerk or stenographer, and all the witnesses whose affidavits were taken except the girl Viola Ladanyi, with various aliases, who will hereafter be referred to as the alleged prostitute.

Inspector Allan informed the relator and his counsel that a hearing was being conducted under the warrant of the Secretary of Labor which warrant was read by the inspector. The inspector stated the charge against the relator.

The inspector then said, according to the record attached to the return:

"I now present for your inspection all of the evidence upon which the warrant of arrest in your case is issued, which consists of copy of affidavit made May 20, 1936 by Violet Ladanyi, alias Violet Mason; copy of affidavit made May 20, 1936, by Elsie G. Rolli, copy of affidavit made May 20, 1936 by Howard F. Kornman; copy of affidavit made May 20th, 1936 by James East; copy of report of Inspector Costello of May 27, 1936 and copy of confirmation of telegraphic application for warrant of arrest.

"You may read or have read to you all the evidence. Do you wish to read it?"

Counsel for the relator then read the evidence and asked to have the evidence read to the alien through an interpreter.

The affidavits of Ladanyi and Rollio were read to the relator in Italian by the interpreters and the remainder of the evidence at the relator's request was read to him in English.

The inspector then informed the relator and his counsel that all the evidence upon which the warrant of arrest was based, the originals of which were on file with the Secretary of Labor in Washington, would be considered, together with such additional evidence as is presented at this hearing in arriving at a decision in the case.

The inspector then asked the relator and his counsel what they had to say in regard to the evidence of the above affidavits and reports.

Counsel for the relator replied that the relator had nothing to say in regard to such evidence as it was in the form of information only and asked that any evidence be produced in addition to these affidavits on information.

Counsel for the relator demanded opportunity to obtain and make copies of these affidavits and other evidence for the purpose of making a proper defense for his client.

The inspector replied that it was a rule of the Department in such proceedings to loan counsel a copy of the entire record of the hearing for the purpose of submitting a brief, if desired to submit a brief.

Counsel for the relator excepted to the refusal to allow counsel to make a copy of the affidavits on the warrant of arrest.

Upon being informed that the affidavits were to be offered in evidence, counsel for the relator objected on the ground that the affidavits were largely incompetent and particularly because they were mostly hearsay.

Counsel for the relator objected to a hearing before Inspector Allan on the ground that the inspector had charge of the proceedings and prosecution, and therefore was disqualified to act in any judicial capacity in these proceedings.

James East was then sworn and shown the affidavit made on May 27, 1936, and asked if that was his statement and signature, to which he replied in the affirmative. He was then asked if he identified the relator as the person named in the affidavit, and again replied in the affirmative. The affidavit was offered in evidence and objected to by counsel for the relator. Counsel demanded that he be sworn and examined as a witness in the proceedings if his evidence was to be used.

The inspector replied that the witness had been sworn and asked if counsel wished to cross-examine the witness. Counsel for the relator refused to cross-examine the witness on the ground that the witness has so far offered no competent testimony in this proceeding.

The affidavit of James East stated that the relator and Violet Ladanyi lived as husband and wife in a house at 516 East Willow Street, Syracuse, of which he was janitor for some weeks.

William Kornman was sworn as a witness and identified two affidavits made by him, one at the Police Headquarters on May 20, 1936, and one before Immigration Inspector Costello on May 27, 1936.

The first was used as part of the information on which the Secretary's warrant of arrest was issued. He claims there was some error in the affidavit taken at Police Headquarters on May 20, 1936.

In one or both of these affidavits he stated that he heard the relator ask his wife if she could use a girl at the house of prostitution conducted by his wife until her death and afterward by the witness. He also said that he heard the alleged prostitute tell his wife that she gave the relator about $20 per week out of her earnings as a prostitute.

Counsel for the relator objected to the receipt of the affidavits and demanded the witness be examined and give testimony on the hearing.

The affidavits were received and counsel was asked if he desired to cross-examine. Counsel stated that he desired to cross-examine the witness only on the affidavit of May 20, 1936, used as information on which the warrant was issued.

He admitted that his wife ran the house as a house of prostitution and that after her death he rented the house to the girl occupants, that it was house of prostitution and that he lived there.

He said he saw the relator come to the house; that the alleged prostitute was in his house about a year from February, 1935, to February, 1936. His wife died in April, 1936.

Elsie Rollio, sister of the alleged prostitute, was sworn and identified the affidavit made by her which was offered and received over objection of counsel for the relator.

She likewise had made two affidavits, one on May 20, 1936, and the other on May 27, 1936. The former was used as information on which warrant of arrest was issued by the Secretary. She swore in one or both affidavits, that the relator...