Maltez v. Nagle

• Citation: 27 F.2d 835
• Decision Date: 20 August 1928
• Docket Number: No. 5370.,5370.
• Parties: MALTEZ v. NAGLE, Commissioner of Immigration.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

27 F.2d 835 (1928)

MALTEZ v. NAGLE, Commissioner of Immigration.

No. 5370.

Circuit Court of Appeals, Ninth Circuit.

August 20, 1928.

Clarence A. Linn, of San Francisco, Cal., for appellant.

Geo. J. Hatfield, of San Francisco, Cal. (T. J. Sheridan, of San Francisco, Cal., of counsel), for appellee.

Before RUDKIN, DIETRICH, and HUNT, Circuit Judges.

DIETRICH, Circuit Judge.

Appellant, an alien, is held for deportation upon a finding of the immigration officers that he was managing a house of prostitution, or a resort habitually frequented by prostitutes, and was receiving, sharing in, or deriving benefit from the earnings of a prostitute. The warrant for his arrest containing such charges was issued May 2, 1926, and the warrant for deportation September 29, 1927. In the court below a demurrer, for insufficiency, to his petition for a writ of habeas corpus, with which he exhibited the entire administrative record, was sustained, and from the ensuing judgment of dismissal he appeals.

It is first contended that the warrant for arrest was fatally defective, in that it charges several different kinds of immorality, and specifies neither time nor place. Subject to criticism it may be, in that it fails to state time or place; but appellant suffered no prejudice. In advance of the hearing he was supplied with a copy of the sworn statements upon which it was issued, and by these statements he was particularly advised; there neither is nor could be any suggestion that he was at any time taken by surprise. Inasmuch as the several charges recited in the warrant relate to the same time and place, they might all have been embodied in a single indictment or criminal complaint. A fortiori there was no impropriety in grouping them in a single administrative proceeding.

In substance, the other assignments are that the proceedings were unfairly conducted, and there is no competent evidence to support the warrant of deportation; the argument being that, without certain ex parte statements and certain judgments of a state court, the record is devoid of substantial evidence; that the statements are inadequately authenticated, and the immigration officers refused to produce for cross-examination the persons by whom they are supposed to have been made; and that the judgments are incompetent and of no probative value.

On March 31, 1926, appellant was maintaining a restaurant at 19 Smith street, Alvarado, Cal., that section of the town being popularly known as "Little Tia Juana." In addition to serving meals, he sold soft drinks, cigars, etc., and in a room provided with a player piano he encouraged or permitted dancing. There were also, on the same floor, apparently, three or four bedchambers occupied by his employees. On March 31st he had two male cooks, Jose Lopez and Frank Telles, each of whom he paid at the rate of $2 a day, with board for both and room for one; also two waitresses, Maria Para and Ampora Cesena, each receiving compensation at the rate of $2 a day, with board and room. In addition to acting as waitresses, these women served at the soft drink fountain and danced with patrons of the place as there was demand. So much appellant in effect admits. The government contends that with his knowledge these waitresses practiced prostitution on the premises, and that he shared in the proceeds thereof, all of which he denies.

On March 31, 1926, in the presence of federal immigration inspectors, local officers, led by a county detective named Helms, conducted a raid of the district, in the course of which no immoral acts or conditions were observed, but numerous persons, including appellant and his employees, were taken into custody and interrogated under oath. Notes of what was said were made at the time, either by a stenographer or an inspector, which were later transcribed, and upon the basis of the information so obtained the Secretary issued the warrant for appellant's arrest. The warrant was served early in May, and on May 10th appellant was given a hearing, at which he appeared in person and by counsel. In response to questions put to him by the inspector, he corrected certain dates and names in the transcript of his statement made at the time of the raid, whereupon the inspector announced that he was incorporating in the record and making a part of the evidence this statement, together with the purported ex parte statements of Lopez, Telles, and Maria Para, and of a woman named Mercedes Gonzales, all of the same date, and a like statement of Detective Helms, taken on April 1st; also a report of the inspectors, made to their superiors. Upon objection by counsel for appellant, the examining inspector advised that the objection would be recorded, but that "the reasons should be noted in a brief." Thereupon appellant produced three character witnesses, who testified that he bore a good reputation in the community. There being no further witnesses at that time, the inspector adjourned the hearing, with the statement that app...