Svarney v. United States

• Decision Date: 13 August 1925
• Docket Number: No. 6498.,6498.
• Parties: SVARNEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

7 F.2d 515 (1925)

SVARNEY v. UNITED STATES.

No. 6498.

Circuit Court of Appeals, Eighth Circuit.

August 13, 1925.

King & Schulder and Leslie Frazer, all of Salt Lake City, Utah, for plaintiff in error.

Charles M. Morris, U. S. Atty., and J. Kimball Smith and Edward M. Morrissey, Asst. U. S. Atty., all of Salt Lake City, Utah.

Before SANBORN, LEWIS, and BOOTH, Circuit Judges.

BOOTH, Circuit Judge.

By this writ of error a reversal is sought of a judgment discharging a writ of habeas corpus and remanding plaintiff in error, hereafter called defendant, to the proper authorities for deportation under a warrant theretofore issued by the United States Department of Labor. The proper method of review was by appeal, instead of by writ of error. Fisher v. Baker, 203 U. S. 174, 27 S. Ct. 135, 51 L. Ed. 142, 7 Ann. Cas. 1018; In re Graves (C. C. A.) 270 F. 181. In view, however, of the Act of September 6, 1916 (39 Stat. 727, § 4 Comp. St. § 1649a), we disregard the irregularity in practice.

The facts leading up to the warrant for deportation are briefly as follows:

In 1909, defendant, a Greek subject, came to the United States. Except for a brief period, when he returned to Greece to serve in the army, he has been continuously in this country, residing and working in Utah. In March, 1922, he was indicted for violation of the Mann Act (Comp. St. §§ 8812-8819). There were three counts in the indictment: First, causing one Ruth Roberts to be transported in interstate commerce for the purpose of prostitution; second, causing her to be transported with intent to induce her to become a prostitute; third, procuring a railroad ticket, to be used by her in interstate commerce for the purpose of prostitution.

The second count was dismissed. Plea of guilty was entered to the first and third counts. Sentence of six months in jail was imposed April 1, 1922. Immediately on the expiration of his sentence, defendant was arrested, charged with violation of the Immigration Act of February 5, 1917 (39 Stat. 874). There were three specific charges:

(1) "That he has been found employed by, in, or in connection with a house of prostitution or music or dance hall or other place of amusement or resort habitually frequented by prostitutes or where prostitutes gather;" (2) "that he has been found subsequent to his entry protecting, or promising to protect, from arrest, a prostitute;" (3) "and that he has been found receiving, sharing in, or deriving benefit from the earnings of a prostitute."

A hearing was had before the United States immigration inspector at Salt Lake City. At the hearing, the inspector notified defendant that a fourth charge would then be made against him, to wit, assisting a prostitute. As a result of the hearing, the Assistant Secretary of Labor, on or about September 28, 1922, issued a warrant for deportation, in which he held that defendant had been found in the United States in violation of the Immigration Act of February 5, 1917. Two of the four specific charges were upheld, the first and the second.

A petition for a writ of habeas corpus was presented to the United States District Court for the District of Utah, alleging that defendant had not been given a fair hearing, and that there was no evidence to support the findings. The writ issued. A return was made to the writ. After a hearing the writ was discharged and the defendant remanded to the United States marshal. Writ of error has brought the case here.

The Act of February 5, 1917, violation of which was charged against defendant, reads so far as here material as follows:

"Sec. 19. * * * Any alien who shall be found an inmate of or connected with the management of a house of prostitution or practising prostitution after such alien shall have entered the United States, or who shall receive, share in, or derive benefit from any part of the earnings of any prostitute; any alien who manages or is employed by, in, or in connection with any house of prostitution or music or dance hall or other place of amusement or resort habitually frequented by prostitutes, or where prostitutes gather, or who in any way assists any prostitute or protects or promises to protect from arrest any prostitute, * * * shall, upon the warrant of the Secretary of Labor, be taken into custody and deported." Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289¼jj.

Of the numerous offenses denounced in the statute, the defendant was specifically found to have committed two. The evidence introduced before the inspector consisted (1) of the testimony of a special agent of the Department of Justice and of the defendant himself; (2) an affidavit of Ruth Roberts; (3) a copy of the commitment in the case against defendant under the Mann Act.

The same evidence was introduced upon the habeas corpus hearing in the District Court, with one or two additional papers from the record in the case against defendant under the Mann Act. It is elementary that in cases of this kind the courts will not examine into conflicting evidence. Nishimura Ekiu v. United States, 142 U. S. 651, 660, 12 S. Ct. 336, 35 L. Ed. 1146; Low Wah Suey v. Backus, 225 U. S. 460, 32 S. Ct. 734, 56 L. Ed. 1165; Tang Tun v. Edsell, 223 U. S. 673, 32 S. Ct. 359, 56 L. Ed. 606; Lapina v. Williams, 232 U. S. 78, 34 S. Ct. 196, 58 L. Ed. 515; Lewis v. Frick, 233 U. S. 291, 300, 34 S. Ct. 488, 58 L. Ed. 967; United States v. Rodgers, 191 F. 970, 112 C. C. A. 382; United States v. Uhl, 211 F. 628, 128 C. C. A. 560.

The assignments of error, however, raise two main questions which are proper to be considered: Whether defendant had a fair hearing before the inspector; whether there is any substantial evidence to support the findings upon which the warrant for deportation was based. It is claimed by defendant that the introduction in evidence of the affidavit of Ruth Roberts rendered the hearing unfair, since the affidavit was not competent evidence, and defendant was deprived of the right of cross-examination. This affidavit had been secured while the woman was under arrest in connection with the charge against defendant under the Mann Act. In the affidavit the woman stated in substance that at defendant's request she went to "work" at the coffee house of defendant at Soldier Summit in December, 1921, and stayed until January 20, 1922, and again for a few days in February, 1922; that she practiced prostitution while there; that she paid defendant $3 a day for board and room while there; that defendant procured for her a railroad ticket, which she used in going the second time to Soldier Summit. The affiant who made this affidavit was not produced at the hearing, and no showing was made that she was not procurable as a witness.

Deportation proceedings are in their nature civil. The rules of evidence need not be followed with the same strictness as in the courts. In Bilokumsky v. Tod, 263 U. S. 149, 157, 44 S. Ct. 54, 57 (68 L. Ed. 221), the court said: "Moreover, a hearing granted does not cease to be fair, merely because rules of evidence and of procedure applicable in judicial proceedings have not been strictly followed by the executive; or because some evidence has been improperly rejected or received. Tang Tun v. Edsell, 223 U. S. 673, 681 32 S. Ct. 359, 56 L. Ed. 606. To render a hearing unfair the defect, or the practice complained of, must have been such as might have led to a denial of justice, or there must have been absent one of the elements deemed essential to due process. Chin Yow v. United States, 208 U. S. 8 28 S. Ct. 201, 52 L. Ed. 369; Kwock Jan Fat v. White, 253 U. S. 454, 459 40 S....