United States v. Sahli

• Decision Date: 16 November 1954
• Docket Number: No. 11044.,11044.
• Citation: 216 F.2d 33
• Parties: UNITED STATES of America ex rel. Nickolas Diani CIRCELLA, Petitioner-Appellant, v. Walter A. SAHLI, District Director of Immigration and Naturalization, U. S. Department of Justice, Chicago, Illinois, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

216 F.2d 33 (1954)

UNITED STATES of America ex rel. Nickolas Diani CIRCELLA, Petitioner-Appellant, v. Walter A. SAHLI, District Director of Immigration and Naturalization, U. S. Department of Justice, Chicago, Illinois, Respondent-Appellee.

No. 11044.

United States Court of Appeals Seventh Circuit.

October 12, 1954.

Rehearing Denied November 16, 1954.

COPYRIGHT MATERIAL OMITTED

Thomas M. Tracey, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., John Peter Lulinski, Anna R. Lavin, Asst. U. S. Attys., John M. McWhorter, District Counsel, Immigration and Naturalization Service, Chicago, Ill., for appellee.

Before MAJOR, LINDLEY and SWAIM, Circuit Judges.

SWAIM, Circuit Judge.

The relator, Nickolas Diani Circella, filed in the United States District Court for the Northern District of Illinois a petition for a writ of habeas corpus alleging that his detention by Marcus T. Neelly, the District Director of Immigration and Naturalization, United States Department of Justice, was illegal and in violation of relator's constitutional rights.

The relator was taken into custody by the respondent on a warrant for relator's arrest which charged that he was subject to deportation under the 1917 Immigration Act, 8 U.S.C.A. (1940 Edition) § 155(a), because he had been convicted prior to his entry into the United States of assault with intent to murder, an offense involving moral turpitude. At the conclusion of the hearing on this first charge the Service lodged an additional charge that relator was also subject to deportation under the Immigration and Nationality Act of 1952, 8 U.S. C.A. § 1251 et seq., because he had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, which crimes were committed after his entry into the United States in 1902. The second crime was conspiracy to interfere with trade and commerce by violence, threats and coercion in violation of the Anti-Racketeering Act, former Title 18 U.S.C.A. § 420a,¹ repealed in 1948.

In the hearing conducted before a special inquiry officer concerning the deportation, evidence was offered by the Service to show that the relator was born in Italy, August 24, 1898; that he first entered the United States on January 26, 1902; that he had never been naturalized; that his first conviction of a crime was on September 14, 1916, in the Criminal Court of Cook County, Illinois, which was an assault with intent to murder; and that on his conviction of this crime relator was sentenced to the Illinois State Reformatory at Pontiac for an indeterminate number of years. On February 2, 1929, the relator made a trip by plane from Miami, Florida, to Bimini in the Bahamas, returning to Florida on the same day. It was also shown that on April 7, 1942, relator was convicted of the crime of conspiracy to interfere with trade and commerce by violence, threats and coercion in violation of 18 U.S.C.A. § 420a.

On April 14, 1953, the special inquiry officer who conducted the hearing entered an order that the relator be deported on the original charge and on the lodged charge. The relator's appeal from this order was, on August 3, 1953, dismissed by the Board of Immigration Appeals.

On September 10, 1953, Marcus T. Neelly, the respondent, issued a warrant of deportation against the relator. Shortly thereafter counsel for the relator notified the respondent that there would be a petition for a writ of habeas corpus filed on behalf of the relator and was informed by the respondent that such a petition might be filed at the time the relator was arrested. On September 14 the relator and his attorney, pursuant to an arrangement made with Mr. Cushman, an officer of the Immigration Service, went to the office of the Immigration and Naturalization Service for a conference with Mr. Cushman concerning the relator's bond. In a telephone conversation Mr. Cushman had informed the relator's attorney that it was not the purpose of the Service to arrest the relator for immediate deportation. However, on their arrival at the Service office the relator was immediately placed under arrest and he and his attorney were informed that the relator was to be immediately deported to Italy. At that time counsel for the relator informed Mr. Neelly that he intended to immediately petition the United States District Court for the Northern District of Illinois for a writ of habeas corpus and served on Mr. Neelly a typewritten notice to that effect. Without paying any regard to the notice that a petition for a writ of habeas corpus was to be filed the respondent caused the relator to be handcuffed, removed from the building and placed in an automobile to be transported to Hammond, Indiana. After the relator had been taken from the building his attorney proceeded to the United States District Court and at 12:05 P. M. filed the petition for a writ of habeas corpus. Shortly thereafter, at 12:08 P. M., the relator was returned by automobile to the building where the Service maintained its offices in order that relator's custodians might pick up certain necessary papers relating to his deportation. The relator was then taken to Hammond, Indiana, out of the jurisdiction of the United States District Court for the Northern District of Illinois. At Hammond, Indiana, the relator was placed in a detention cell to await a train to New York. That same afternoon at 2:05 P. M. a writ of habeas corpus was issued by Judge Barnes of the United States District Court for the Northern District of Illinois commanding the respondent to produce the body of the relator before that court on September 21, 1953. That evening about five o'clock the relator was placed on a New York Central train which originated in Chicago, taken to New York City, New York, and detained at Ellis Island in the Southern District of New York.

On September 15, 1953, a petition for a writ of habeas corpus was filed on behalf of the relator in the United States District Court for the Southern District of New York. The petition in that court was denied after a very brief hearing.

On September 21, 1953, the respondent filed his return to the writ of habeas corpus, stating that at the time the writ was issued the respondent did not have custody of relator but that relator was then in the custody of the Immigration Service in New York.

On September 28, 1953, relator's case was again called before the United States District Court for the Northern District of Illinois and at that time the United States Attorney asked leave to withdraw the return which had been filed by his office challenging the jurisdiction of the court. This leave was granted and the United States Attorney was thereupon ordered to file a return meeting the petition on its merits, which he did. To this the relator filed a traverse and thereafter a hearing, at which the relator was present, was held before Judge Campbell of that court. Judge Campbell rendered a memorandum opinion, and entered findings of fact and conclusions of law and an order dismissing the writ of habeas corpus. United States ex rel. Circella v. Neelly, 115 F.Supp. 615. From this order the relator prosecutes this appeal.

On this appeal the relator states that the United States District Court for the Northern District of Illinois had jurisdiction to issue the writ of habeas corpus on September 14, 1953, and the United States Attorney agrees that the jurisdiction of that court is not in question. Of course, the parties cannot bestow jurisdiction by agreement, Ahrens v. Clark, 335 U.S. 188, 193, 68 S.Ct. 1443, 92 L.Ed. 1898, but we also agree that the court, under the facts of this case, had jurisdiction. At the time the petition for habeas corpus was filed the relator, Circella, in charge of two subordinates of the respondent, Neelly, was still in the territorial jurisdiction of the United States District Court for the Northern District of Illinois. His subsequent removal by the respondent to Indiana did not rob the Illinois court of jurisdiction. Ex parte Mitsuye Endo, 323 U.S. 283, 305, 65 S.Ct. 208, 89 L.Ed. 243.

It is true, as counsel for the relator states, that the 1917 Immigration Act was expressly repealed by the Immigration and Nationality Act of 1952, but it is also true that the provisions of the 1917 Act here involved were saved by Section 405 of the 1952 Act. 8 U.S.C.A. (Copyright 1953) § 1101 note.

The relator next attacks the conclusion of the special inquiry officer that the relator was subject to deportation because, prior to his entry into the United States, he had been convicted of assault with intent to murder. The relator attacks this conclusion because it is based on the finding that the relator "entered" the United States by plane at Miami, Florida, on February 2, 1929. The evidence to support this finding was, first, the testimony of the pilot who flew the plane from Miami to Bimini and back on February 2, 1929. The pilot testified that on that trip he transported Circella and three other passengers. The witness identified the relator in the courtroom as the Circella who made that trip. The Government manifests of the trip also showed that a man by the same name as the relator and who was born on the same day as the relator was one of the passengers on the trip. Although Circella was present in the courtroom during the taking of the testimony concerning the trip he did not deny that he was the Circella who was one of the passengers on that trip.

The Supreme Court has defined entry as used in the 1917 Act as including "any coming of an alien from a foreign country into the United States whether such coming be the first or any subsequent one." United States ex rel. Volpe v. Smith, 289 U.S. 422, 425, 53 S.Ct. 665, 667, 77 L.Ed. 1298. In the instant case, as in the Volpe case, the alien departed from the United States, went to the foreign land and returned to the United States, knowingly and voluntarily. The 1952 Act has adopted this definition...