United States v. Mason

• Decision Date: 15 July 1964
• Citation: 232 F. Supp. 102
• Parties: UNITED STATES of America ex rel. Emilio MARTINEZ-ANGOSTO, Relator, v. Redfield MASON, Rear Admiral and Commandant of Third United States Naval District, 90 Church Street, New York, New York, or such person or persons, if any, who might have such Relator in custody, Respondent.
• Court: U.S. District Court — Southern District of New York

232 F. Supp. 102

UNITED STATES of America ex rel. Emilio MARTINEZ-ANGOSTO, Relator, v. Redfield MASON, Rear Admiral and Commandant of Third United States Naval District, 90 Church Street, New York, New York, or such person or persons, if any, who might have such Relator in custody, Respondent.

United States District Court S.D. New York.

July 15, 1964.

Edith Lowenstein, New York City, Edward Q. Carr, Jr., New York City, of counsel, for relator.

Robert M. Morgenthau, U. S. Atty., by Roy Babitt, New York City, of counsel, for respondent.

EDELSTEIN, District Judge.

This is an application by relator, Emilio Martinez-Angosto, for a writ of habeas corpus. See 28 U.S.C. § 2243 (1952). The relator is a 23 year old alien, a native and citizen of Spain, and a member of the Spanish Navy. On or about November 25, 1960, the relator deserted the Spanish destroyer "ALCALA GALIANO" while in port in Philadelphia. The relator was subsequently apprehended by an officer of the Immigration and Naturalization Service (INS) on December 6, 1963, and later placed in respondent's custody, where he remained until the return date of the petition for the writ. On that date a hearing was held and the court, with the consent of the Government, released the relator into the custody of his wife and the local parish priest, Father Anglis, pending the decision on the application for the writ. Thus petitioner is still technically in the custody of respondent but has been given the privilege of remaining with his family pending a decision. The order of this court filed January 24, 1964, provides, however, that the relator must surrender himself to the custody of the respondent within three days "following the decision of the court in this case." The events which led up to the relator's custody and which are not in dispute are as follows:

Pursuant to the Mutual Defense Assistance Agreement between Spain and the United States, September 26, 1953, the United States and Spain, prior to September 26, 1960, agreed to transfer a United States Naval Destroyer designated the "U.S.S. JARVIS DD-799" to the Government of Spain. The destroyer was to be renamed, after the transfer, the "ALCALA GALIANO." Upon the delivery by the United States pursuant to the Treaty, the "ALCALA GALIANO," formerly the "JARVIS" was to become a Spanish warship in the service of the Spanish Government. The transfer was effected, as appears from the certificate of delivery in the record, on November 3, 1960, in Philadelphia, which is in the Fourth Naval District.

Pursuant to Order No. 000031 of September 26, 1960, issued by the Military Assistance Advisory Group, Madrid, Spain, (MAAG), the relator was authorized to sail to the United States aboard an American vessel in October 1960, together with 16 Spanish naval officers and 256 other Spanish naval enlisted men. The purport and object of these instructions was to ship the 272 members of the Spanish Navy to the United States so that they could form the new crew complement of the "ALCALA GALIANO" after it was transferred to the service of the Spanish Government. The relator's name appears on the transfer crew list of the U.S.S. "JARVIS," which has been attached and included in the Navy file before the court. The relator and the other members of the transfer crew departed aboard the United States Naval Vessel "ROSE" from Cartagena, Spain, arrived in New York, and on or about October 17, 1960, were taken to Philadelphia to become the crew of the "ALCALA GALIANO", nee "U.S.S. JARVIS."

Subsequent to the transfer of the U.S.S. "JARVIS" to the Spanish Government, the "ALCALA GALIANO" became a Spanish warship actively in the service of the Spanish Government. Later, in November 1960, the Commander of the "ALCALA GALIANO" advised the Commandant of the Fourth United States Naval District that the relator and another crewman were missing from aboard the vessel since November 25, 1960, and were presumed to be deserters. The matter was referred from the Commandant of the Fourth Naval District at Philadelphia to United States Naval Intelligence at about the same time as the INS had been notified and had accepted investigative jurisdiction of the matter. The Immigration Service file reveals that at 2:00 p. m. on November 30, 1960, the service had been advised by the Spanish Government of the relator's identity as a member of the Spanish Navy and of his desertion.

On December 6, 1963, an investigator of the INS located the relator in Brooklyn, New York. The investigative report, which was submitted to the court as part of the entire record in this case, shows that relator was interrogated by the INS investigator. Relator gave his identity and admitted that he had deserted the "ALCALA GALIANO" while she was in port in Philadelphia. He voluntarily furnished the Immigration investigators with a Social Security card bearing a name other than his own, his Spanish Navy identification card, his marriage certificate showing marriage to a United States citizen, and his child's birth certificate. These documents show that on August 23, 1962, he was married to Carmen Ana Melendez, a United States citizen, and on June 27, 1963, their daughter, Diana Martinez, was born. At the time of his apprehension the relator was employed as a general helper at the Elm Coat Company in Brooklyn, and had worked for the same employer for two and one-half years.

The INS took relator into custody and advised the Office of Naval Intelligence of his apprehension. On December 9, 1963, the Consul General of Spain communicated with the Commandant of the Third Naval District at New York and informed the Commandant that the INS was holding relator. The Consul General then made a request for detention and custody by the respondent pursuant to a 1903 Treaty, pending arrangements for relator's departure aboard a Spanish ship. The Treaty pursuant to which relator's custody and detention was sought is the 1903 Treaty of General Relations and Friendship with Spain, July 3, 1902. Art. XXIV, 33 Stat. 2117 (promulgated April 20, 1903) by which the contracting nations agreed on procedures to be followed in apprehending and expediting the return of deserters "forming part of the crew of ships of war or merchant vessels of their Nation, who may have deserted in one of the ports of the other."¹ In compliance with the direction of the District Director of Immigration and Naturalization, and the request of the Office of Naval Intelligence, relator was on that day taken into the custody of the respondent.

On that same day, December 9, 1963, relator was interviewed by a Foreign Liaison Officer of the Office of Naval Intelligence in New York City. This report is also included as part of the record before the court. The report relates, in substance, that the relator was brought to the interviewing officer's office by two uniformed personnel of the INS; that the interviewing officer identified himself as a representative of the United States Navy and the relator identified himself, upon request for his name, that he was Emilio Martinez-Angosto; that Martinez-Angosto freely and voluntarily stated that he had arrived in the United States in October 1960; that he was brought here from Spain aboard a United States Navy ship as one of the Spanish Navy crew members of the destroyer "ALCALA GALIANO" which was being transferred to Spain by the United States at Philadelphia; that upon his arrival in New York he and the rest of the Spanish Navy crew were transported by bus to the Philadelphia Naval shipyard where they assumed the duties as the crew of the "ALCALA GALIANO;" that his rank in the Spanish Navy was that of a non-rated sailor or seaman assigned to do clerk's work in the ship's office. The relator admitted the desertion and stated that he liked America and wished to stay here.

During the interview the following papers and documents which were turned over to the Office of Naval Intelligence by the INS were shown to him:

Spanish Armed Forces Identification Card issued to Emilio MARTINEZ ANGOSTO.

Foreign Naval Trainee Identification Card issued by the U. S. Navy to Emilio MARTINEZ ANGOSTO, SN, Spanish Navy.

A Spanish Certificate of Baptism No. 000167 for Emilio, son of Emilio MARTINEZ PONT and Florentina ANGOSTO SANCHEZ.

A Spanish Certificate of "Solteria" No. 000126 for Emilio MARTINEZ ANGOSTO.

A Social Security card No. XXX-XX-XXXX for Emilio MARTINEZ.

Certificate of Birth No. 114 for Carmen Ana MELENDEZ born 10 February 1946 in Puerto Rico.

Certificate of Birth No. 156-63-327482 for Diana MARTINEZ, born June 27, 1963, at Brooklyn, New York.

Martinez acknowledged that these documents belonged to him and that he was the Emilio Martinez mentioned therein. The officer's report indicates that the relator's custody was explained to him, i. e., that as a deserter from the Spanish Navy he was being held, pursuant to a Treaty between the two countries subject to his being returned to Spain as soon as arrangements could be made. He was also advised of his right to counsel and was advised that his wife should obtain a lawyer to represent him and that such an attorney would have visitation rights at any time. At the conclusion of the interview Martinez was transported to the Third Naval District Brig. In an affidavit annexed to the moving papers, dated January 16, 1964, the relator admitted and reiterated the essential facts concerning his alien seaman's status, his desertion, his identity, and his voluntary divulgence of information as well as his voluntary relinquishment of identifying documents.

Although the validity of the Treaty is not under attack relator's counsel, nevertheless, urges that relator's custody is invalid because the Treaty cannot be implemented and it therefore can have neither applicability nor impact upon relator. Relator's first contention is that the Treaty, while still in effect, "cannot be advanced as a valid basis for Martinez-Angosto's detention or delivery to...