Shinyu Noro v. United States

• Decision Date: 17 May 1945
• Docket Number: No. 10922.,10922.
• Citation: 148 F.2d 696
• Parties: SHINYU NORO et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

148 F.2d 696 (1945)

SHINYU NORO et al. v. UNITED STATES.

No. 10922.

Circuit Court of Appeals, Fifth Circuit.

April 24, 1945.

Rehearing Denied May 17, 1945.

Wm. C. Pierce, of Tampa, Fla., for appellants.

H. S. Phillips, U. S. Atty., of Tampa, Fla., John F. Costelloe and Sewall Key, Sp. Assts. to the Atty. Gen., and Samuel O. Clark, Jr., Asst. Atty. Gen., all of Washington, D. C., for appellee.

Before SIBLEY, WALLER, and LEE, Circuit Judges.

SIBLEY, Circuit Judge.

The appellants were indicted in six counts, five charging Noro with having wilfully and knowingly attempted to defeat a large part of his income taxes by making false returns, for the years 1936, 1937, 1938, 1939 and 1940, Goto aiding and abetting. The sixth count charges a conspiracy among them and another to do this. They were convicted on all counts, and a general sentence imposed of imprisonment for one year, and to pay the costs of prosecution. They appeal. The questions argued are: 1. Whether the entry of the place of business of appellants and the seizure of their account books was a violation of the Fourth Amendment of the Constitution prohibiting unreasonable searches and seizures, and the use of them in evidence violated the Fifth Amendment declaring that no person shall be compelled in any criminal case to be a witness against himself. 2. Whether the evidence supports the verdict.

The books seized, when later examined, included one set kept in Japanese, and one in English, covering each day's business with monthly totalings. They agreed as to payments out but the receipts were much larger, in some years three times larger, according to the Japanese books than as shown by the English books. The income tax returns followed the English books and the falsity in them is proved only by resort to the Japanese books. The propriety of the use of these books in evidence is vital to the case.

The search and seizure were admittedly without any search warrant or warrant of arrest. The justifying facts, also uncontested, are that Noro and Goto, though residing for years peaceably in the United States, are citizens of the Japanese Empire; that on Dec. 7, 1941, following the attack on Pearl Harbor, the Congress declared war on Japan; and the following evening, on specific instructions from the Secretary of the Treasury, and a proclamation by the President touching alien enemies, appellants' place of business, a restaurant called Nikko Inn, was entered and searched by customs officers, with orders to seize among other things the books of the business. Other Japanese business places in and around the City were similarly searched. Noro and Goto submitted to the search, pointed out the books, and were allowed to depart. No one was arrested.

On May 7, 1940, Sect. 5(b) of the Trading with the Enemy Act was so amended as to authorize the President during time of war or any period of national emergency declared by him, to investigate, regulate or prohibit certain commercial dealings in which foreign States or nationals were interested, and gave him power to require any person to give information about them "including the production of any books of account * * * in connection therewith in the custody or control of such person." 54 Stat. 179, 50 U.S.C.A.Appendix § 5(b). Section 2 of this legislation, 12 U.S.C.A. § 95 note, expressly confirmed action by the President which had vested these powers in the Secretary of the Treasury, and his regulations and rulings. Shortly before, the President had declared a period of national emergency and authorized the Secretary of the Treasury to proceed by licensing the business of certain nationals; and shortly afterwards the nationals of China and Japan were included. Nikko Inn had such a license from the Secretary of the Treasury. Promptly after Pearl Harbor, on Dec. 7, 1941, the Secretary revoked all licenses issued for the benefit of Japan or any national thereof, and ordered that customs officers and others take possession of the Japanese enterprises which had been licensed, and prevent access to, alteration or removal of books, files, accounts and other property of such enterprises. Before the Nikko Inn was taken into possession under this order, on Dec. 7, 1941, the President issued his proclamation No. 2525, 55 Stat. 1700, 6 Fed.Reg. 6321, applicable to all land and water within the jurisdiction of the United States, forbidding any alien enemy to have in possession, custody or control, besides firearms, ammunition, bombs, codes and ciphers, cameras, and the like, "papers, documents or books in which there may be invisible writing"; and all such property found in the possession of any alien enemy was declared subject to seizure and forfeiture. Matters so standing, the customs officers on Dec. 8, 1941, took possession of Nikko Inn, and of the books in question and all other papers found there. Shortly afterwards on Dec. 18, 1941, by the First War Powers Act, 55 Stats. 839, Congress provided expressly for such seizures, and in Sect. 302, 50 U.S.C. A.Appendix § 617, ratified and confirmed all...