Schoeps v. Carmichael, 12008.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation177 F.2d 391
Docket NumberNo. 12008.,12008.
Decision Date23 September 1949



David C. Marcus, Los Angeles, Cal., for appellant.

James M. Carter, U. S. Atty., Clyde C. Downing, Arline Martin and Ernest Tolin, Asst. U. S. Attys., Los Angeles, Cal. (Marshall Kidder, Asst. Dist. Adjudications Officer, Immig. & Naturalization Service, Los Angeles, Cal., on the brief) for appellee.

Before STEPHENS and BONE, Circuit Judges, and FEE, District Judge.

BONE, Circuit Judge.

Appellant-petitioner Schoeps was born on November 27, 1893 in Germany and was admitted to this country in 1911. He has resided here continuously from that time but has remained a citizen of Germany. He is not married and has no dependents.

Appellant admitted that while residing in New York City on or about 1923, he committed acts of a loathsome nature upon the sexual organs of a 7 year old girl. This type of conduct, clearly involving moral turpitude, is denounced as a felony under the New York Penal Law.1 It escaped discovery until 1943, and he was never charged with or punished for this state crime. The New York statute of limitations has also barred a prosecution for this offense.2

In November, 1939, appellant voluntarily departed from the United States for a visit to Mexico, returning the same day.

On March 9, 1943, appellant again committed acts of sexual perversion, this time upon a 3 year old baby girl. For this offense he was arrested by the police of Los Angeles, California, and charged with lewd and lascivious conduct toward a child, this offense being a felony under California law.3 His conduct was essentially the same, although more repulsive in nature, as the offense in New York.

Appellant freely admitted these acts of sexual perversion and also his trip to Mexico, to Immigration officials. He made two statements to them which were made under oath after the officials had identified themselves and after he had been warned that anything he said might be used in subsequent deportation or criminal proceedings against him. These statements, one made while appellant was in the custody of the Los Angeles police, the other the day following his release, were typed, signed, and each page initialed by appellant, and covered substantially the same facts. This procedure was in all respects in conformance with the applicable regulations.4

On March 10, 1943, while appellant was in police custody, Dr. DeRiver, a Police Psychiatrist employed by the City of Los Angeles conducted an examination of appellant, in which appellant recounted his acts of perversion in detail. He there stated that the acts of perversions involving the child in New York occurred "two or three times." The examination was made as a part of DeRiver's routine duties to investigate persons arrested on sex offenses and was recorded in DeRiver's normal report of such official investigation.

Subsequent to his release from police custody, appellant was arrested by Immigration officials and charged with being a deportable alien under authority of 8 U.S.C.A. § 155(a): "* * * any alien who was convicted, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude * * * shall, upon the warrant of the Attorney General, be taken into custody and deported. * * *"

Formal deportation hearings were held at which appellant was represented by counsel, and upon final administrative consideration appellant was ordered deported.

Appellant sought freedom from his detention by immigration authorities in an application for a writ of habeas corpus to the district court. His petition, based upon a claim of administrative error in admitting appellant's sworn statements into evidence, was denied. This appeal followed.

The deportation of a resident alien is not a criminal action. United States ex rel. Bilokumsky v. Tod, 1923, 263 U.S. 149, 155, 44 S.Ct. 54, 68 L.Ed. 221, but because of the serious consequences to the deportee, the substantive fairness of the administrative hearings requires close scrutiny. Bridges v. Wixon, 1945, 326 U.S. 135, 153-156, 65 S.Ct. 1443, 89 L.Ed. 2103. Common law rules of evidence are not based in constitutional interdictions5 and administrative tribunals are not bound by such rules except those perpetuated in governing regulations.6 However a slavish and formalistic approach to the regulations is not necessary to due process. In habeas corpus proceedings, the court should examine no further than to see that those procedures, designed for and necessary to the intrinsic fairness of the deportation proceedings are scrupulously observed, Bridges case, supra; and, there is substantial reliable and probative evidence to justify the finding that the alien is deportable.7 We find that the evidence in this case was substantial and reliable, and that it fully sustains the order of deportation.

Appellant's Return From Mexico as an "Entry"

In order for an alien's return to this country to constitute an "entry" as contemplated by 8 U.S.C.A. § 155(a), supra, his departure must have been voluntary, with knowledge that his destination is foreign.8 The intention to return to this country, whether after a mere few hours or an extended vacation abroad, is immaterial. If the length of time spent abroad is an element to be considered, it must be made so by Congress, not the courts. Compare Madokoro v. Del Guercio, 9 Cir., 1947, 160 F.2d 164; Cahan v. Carr, 9 Cir., 47 F.2d 604, 605; Lewis v. Frick, 233 U.S. 291, 297, 34 S.Ct. 488, 58 L.Ed. 967. This is not a "sleeping car" case, Di Pasquale v. Karnuth, 2 Cir., 158 F.2d 878, nor does it present a situation similar to that shown in Del Guercio, etc., v. Delgadillo, 9 Cir., 159 F.2d 130, reversed in Delgadillo v. Carmichael 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17. Appellant's visit to Mexico required and was the result of a willful and purposeful intent to depart from the United States. The evidence leaves no doubt that he regarded it as a pleasure trip. To hold that his return into the United States from this trip did not constitute a re-entry would devitalize the law clearly applicable to such an "entry" and leave it utterly meaningless. If this sort of a change in the law is to be effected, Congress and not the Federal Courts should sanction it.

The Alien's Prior Crime

Appellant in no way denies the acts of sexual perversion shown by this record and it is not contested that his conduct in New York in 1923 constituted a felony, and involved moral turpitude. Success in evading deserved punishment in no way mitigated that offense.

That the crime was committed in the United States is of no consequence so long as it is "prior to entry." The obvious purpose of section 155, supra, was to rid the United States of undesirable aliens. See United States ex rel. Volpe v. Smith, 1933, 289 U.S. 422, 425, 53 S.Ct. 665, 667, 77 L.Ed. 1298 where it was said: "Aliens who have committed crimes while permitted to remain here may be decidedly more objectionable than persons who have transgressed the laws of another country."9

Admissibility of Prior Statements

The basic questions in this case are whether the admission of appellant's sworn statements violated standards of fundamental fairness necessary to the validity of the hearing or violated the procedural regulations here applicable and necessary to assure such fairness. This Circuit has uniformly held such statements to be admissible.10

We cannot hold that standards of "fundamental fairness" of the deportation proceedings, which are administrative proceedings not bound by strict common law rules of evidence, are violated when common sense dictates that these statements would have been judicially admissible and accepted as substantive evidence as "admissions."11

Appellant denied under oath at the formal deportation hearing on June 12, 1943 before a Presiding Inspector that he had made a sworn statement before an Immigration Inspector (Busselle) in the Los Angeles Jail, and denied that he entered Mexico in 1939. On the latter point he was questioned and made answers as follows:

"Q. Where and when did you last enter the United States? A. In 1910 — I came to Los Angeles from New York.

"Q. Were you in Mexico since your entry in 1910 at New York? A. No. I was in San Diego — that's as far as I got.

"Q. The warrant of arrest states you last entered this country at San Ysidro, California, on Thanksgiving Day, in November 1939. Is that correct? A. No, it isn't. I went to San Diego with my lady friend and stayed there for Thanksgiving and came back that night."

The foregoing was a blunt denial of his sworn statement made before Inspector Busselle in Los Angeles Central Jail on March 10, 1943. That statement, in questions and answers, is as follows:

"Q. When and where did you last enter the United States? A. I last entered the United States at San Ysidro, California on Thanksgiving Day, 1939.

"Q. For what purpose did you enter the United States? A. To get back home again.

"Q. At the time of your last entry into the United States were you questioned by a United States Immigration Officer? A. Well, they stopped us on the border and looked in the window of the car and said `where are you from?' I said `New York,' and they waived us on."

Confronted with this contradictory testimony which reached to the very heart of the case, the Presiding Inspector ordered the formal deportation hearing continued until he could secure the return of Inspector Busselle who was then on detail in Arizona. Busselle later testified in this hearing concerning the taking of the sworn statement of Schoeps in which the appellant admitted his entry into the United States at San Ysidro in 1939.

The prior recorded and sworn statements were clearly against appellant's interest. The modern rule, as we see it, is that a statement (even though unsworn) is admissible as substantive...

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