United States v. Heikkinen, 11709.

• Decision Date: 04 February 1957
• Docket Number: No. 11709.,11709.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Knut Einar HEIKKINEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

240 F.2d 94 (1957)

UNITED STATES of America, Plaintiff-Appellee, v. Knut Einar HEIKKINEN, Defendant-Appellant.

No. 11709.

United States Court of Appeals Seventh Circuit.

January 17, 1957.

Rehearing Denied February 4, 1957.

M. Michael Essin, Milwaukee, Wis., Edmund Hatfield, Chicago, Ill., for appellant.

George E. Rapp, U. S. Atty., Madison, Wis., for appellee.

Before DUFFY, Chief Judge, and FINNEGAN and SWAIM, Circuit Judges.

SWAIM, Circuit Judge.

The defendant was convicted, under one count, of willfully failing to depart from the United States within six months from the date of an order of deportation entered against him as a resident alien and, under another count, of willfully failing to make timely application in good faith for travel or other documents necessary to his departure, in violation of Section 20(c) of the Immigration Act of 1917, as amended, 64 Stat. 1010 (1950), 8 U.S.C.A. § 156(c), now 8 U.S.C.A. § 1252(e). Defendant was found guilty on both counts in a trial by jury and judgment was entered on the verdict.

A detailed statement of the facts in this case and of the prior litigation to which defendant was a party are necessary to a proper understanding of the issues raised by this appeal.

Defendant is an alien born in Finland in 1890. He emigrated to Canada in 1910 and acquired Canadian citizenship. In 1916 he entered the United States and was admitted for permanent residence. Subsequent to 1928 defendant made numerous departures from the United States and re-entered without the necessary travel documents and without any apparent difficulty. From 1923 to 1930 and in 1932, 1947 and 1948, while in the United States, defendant was a member of the Communist Party. He spent approximately three years — from 1932 to 1935 — in the U. S. S. R., and returned to the United States in 1935.

In late 1949 defendant was arrested on a warrant and charged with violations of the Immigration Act of 1924, in that at the time of entry, he was an immigrant not in possession of a valid immigration visa, and of the Immigration Act of 1918, as amended, in that he was an alien member of an organization that advocated, taught and distributed printed matter advocating overthrow, by force and violence, of the United States Government. In deportation proceedings held in New York City prior to 1950 defendant was represented by counsel, one Mr. Englander. It appears that this deportation hearing was set aside by the Immigration and Naturalization Service (hereinafter referred to as INS) on its own motion — presumably because of the decision in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616.

Subsequent to the passage of the Subversive Activities Control Act of 1950, defendant, who had moved to Superior, Wisconsin, was rearrested by the INS and incarcerated in Duluth, Minnesota. The arrest was made pursuant to Section 23 of the Subversive Activities Control Act of 1950. Defendant's arrest and detention without bail caused him to petition for a writ of habeas corpus — the disposition of which is reported in United States ex rel. Heikkinen v. Gordon, 8 Cir., 190 F.2d 16, certiorari granted 343 U.S. 903, 72 S.Ct. 632, 96 L.Ed. 1322, vacated and remanded 344 U.S. 870, 73 S. Ct. 163, 97 L.Ed. 674.

A hearing de novo of the deportation proceedings was scheduled for January 30, 1951, at Duluth, Minnesota. Defendant was again charged with violations of the Immigration Act of 1924 and the Immigration Act of 1918, as amended. A notice of appearance was received on January 25, 1951, from defendant's counsel, Mr. Englander, who had represented defendant in the prior deportation hearing, together with a letter from Mr. Englander to the effect that it was impossible for him to go to Duluth in January 1951, and that it would not be possible for him to be there in the near future. Mr. Englander was notified by INS of receipt of his letter of January 23, and informed that the hearing would be held, as scheduled, at 10:00 A.M. on January 30, 1951, at Duluth. On January 30, 1951, the deportation hearing commenced in Duluth. Defendant was informed, as he had been repeatedly informed, of his right to counsel. Mr. Englander was not present and defendant stated that Mr. Englander would not be present for the hearing. Defendant further stated that he desired to be represented by Mr. Englander, and requested a continuance to arrange for his attorney to appear. The request was granted and defendant was informed that he should be prepared to proceed with the hearing on March 1, 1951. On February 2, 1951, a copy of the transcript of the hearing on January 30, 1951, was sent to Mr. Englander and he was informed that the hearing would proceed on March 1, 1951. On February 6, 1951, Mr. Englander, in response to the letter of February 2, acknowledged receipt of the transcript and stated his desire to continue representing defendant, but stated that it would be impossible for him to travel to Duluth and requested that the hearing be transferred to New York City. On February 8, 1951, Mr. Englander was advised by the INS that the request for transfer was denied and that the hearing would proceed as scheduled. On February 13, 1951, Mr. Englander, replying to the letter of February 8, protested the denial of his request for transfer to New York City and stated that defendant would not be represented by any attorney. On February 16, 1951, the hearing officer informed Mr. Englander that the hearing would proceed on March 1, 1951. At the hearing held on March 1, 1951, additional charges were lodged against defendant, and he was granted a further continuance. Proceedings were resumed on April 12, 1951, without counsel for defendant appearing.

An order recommending deportation was entered by the hearing officer who conducted the hearing. Written exceptions were filed by Mr. Englander to the recommended order. On October 8, 1951, an order was entered by the Assistant Commissioner of the INS, adopting the recommended order with certain changes therein. An appeal to the Board of Immigration Appeals of the INS was heard on February 6, 1952, and the appeal was dismissed on April 8, 1952.

On April 30, 1952, the officer in charge of the INS at Duluth notified defendant, by registered mail, that an order directing his deportation had been entered on April 25, 1952. The letter also informed defendant of his duties under Section 156(c).

On October 14, 1953, an information was filed in the District Court for the Western District of Wisconsin charging defendant with violation of 8 U.S.C.A. § 156(c). Defendant was taken into custody and bail was set in the amount of $10,000. Another dispute concerning defendant's bail arose which was disposed of by this court in Heikkinen v. United States, 7 Cir., 208 F.2d 738. Bail was subsequently reduced and posted and defendant was released.

On November 10, 1953, defendant was indicted and found guilty on the same counts involved in the instant case. Defendant appealed from the sentence and judgment, and this court reversed the judgment of the District Court and remanded with directions. United States v. Heikkinen, 7 Cir., 221 F.2d 890. This court held that a valid order of deportation was a prerequisite of the statutory crime with which defendant was charged; that defendant was entitled to attack the validity of the deportation order; and that for the purpose of making a determination thereon, it was incumbent upon the trial court to review the proceedings before the administrative agency upon which the order was predicated.

A new trial was had on January 9 and 10, 1956. The trial court found that a valid order of deportation had been entered against defendant, and he was again found guilty on both counts of the indictment in a trial by jury.

Defendant claims that he was denied due process of law in the deportation proceeding; that Section 156(c) and the judgment entered thereunder violated defendant's rights under the Fifth and Sixth Amendments; that there was no affirmative duty upon defendant to effect his departure after the final order of deportation was entered; that Section 156(c) and the judgment thereunder are repugnant to the ex post facto clause of the Constitution art. 1, § 10; that the indictment failed to state facts sufficient to constitute an offense against the United States; that the evidence was insufficient to sustain a conviction.

Defendant claims that there was no proper or valid record before the trial court for it to review in determining the validity of the order of deportation entered against him. He argues that the relevant documents were not brought in, as prescribed by this court in United States v. Heikkinen, 7 Cir., 221 F.2d 890, notwithstanding the fact that he filed appropriate motions and the trial court ordered the government to do so; and that the trial court erred in receiving over objections such documents as were offered by the government. Exhibit 1 in this cause contains the transcript of the deportation hearing; the hearing officer's decision; the exceptions to the hearing officer's decision; the Commissioner's decision and order; notice of appeal; the Board of Immigration Appeals' order and warrants, together with all exhibits contained in the deportation hearing with the exception of Exhibits 11, 12, 13 and 14 which had been lost or destroyed. There were attached copies of Exhibits 11, 12, 13 and 14 which had been reproduced from other sources. Subsequent to the introduction of Exhibit 1 into the record, Exhibit 2 was offered by the government and received by the trial court. Exhibit 2 contained the originals of Exhibits 11, 12, 13 and 14. The reproductions of these exhibits were not withdrawn from the record and both the originals and reproductions were available to the trial court. Defendant contends that the substitution was made ex parte and unlawfully. He omits the fact, however, that Exhibits 11, 12, 13 and 14 of Exhibit 1 are identical in all...