United States v. Spector, Cr. No. 21844.

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Writing for the CourtMargolis & McTernan, Los Angeles, Cal., for defendant
Citation99 F. Supp. 778
PartiesUNITED STATES v. SPECTOR.
Decision Date12 September 1951
Docket NumberCr. No. 21844.

99 F. Supp. 778

UNITED STATES
v.
SPECTOR.

Cr. No. 21844.

United States District Court S. D. California, Central Division.

September 12, 1951.


99 F. Supp. 779
COPYRIGHT MATERIAL OMITTED
99 F. Supp. 780
Ernest A. Tolin, Ray H. Kinnison and Angus D. McEachen, all of Los Angeles, Cal., for plaintiff

Margolis & McTernan, Los Angeles, Cal., for defendant.

A. L. Wirin, Los Angeles, Cal., amicus curiæ.

MATHES, District Judge.

Defendant stands indicted for alleged violations of those provisions of § 23 of the Internal Security Act of 1950, 64 Stat. 1010, 8 U.S.C.A. § 156(c), which declare that:

"Any alien against whom an order of deportation is outstanding * * * who shall willfully fail or refuse to depart from the United States within a period of six months from the date of such order of deportation, or from September 23, 1950, whichever is the later, or shall willfully fail or refuse to make timely application in good faith for travel or other documents necessary to his departure * * * shall upon conviction be guilty of a felony, and shall be imprisoned not more than ten years * * *."

The indictment contains four counts averring that defendant is an alien against whom an order of deportation entered August 13, 1930 is outstanding, and that "during the period of six months from September 23, 1950," defendant did wilfully "fail to depart from the United States" Count 1; "fail to make timely application in good faith for travel or other documents necessary to his departure from the United States" Count 2; "refuse to depart from the United States" Count 3; and "refuse to make timely application in good faith for travel or other documents necessary to his departure from the United States" Count 4.

Defendant moves to dismiss the indictment. In support of the motion he urges the above-quoted provisions of § 23 of the Act must be held unconstitutional, see Yick Wo v. Hopkins, 1886, 118 U.S. 356, 369, 6 S.Ct., 1064, 30 L.Ed. 220; Wong Wing v. United States, 1896, 163 U.S. 228, 238, 16 S.Ct. 977, 41 L.Ed. 140, upon the grounds inter alia that the statute denies defendant due process of law, U.S.Const Amend. V, is an ex post facto law, U.S.Const. art. 1, § 9, and imposes cruel and unusual punishment. U.S.Const. Amend. VIII.

In "The Chinese Exclusion Case" Chae Chan Ping v. United States, 1889, 130 U.S. 581, 606-607, 609, 9 S.Ct. 623, 630, 32 L.Ed. 1068, the Supreme court said: "The power of the government to exclude foreigners from the country whenever, in its judgment, the public interests require such exclusion, has been asserted in repeated instances, and never denied * * *. The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States * *."

Later in Fong Yue Ting v. United States, 1893, 149 U.S. 698, 707, 13 S.Ct. 1016, 1019, 37 L.Ed. 905, the Court declared that: "The right of a nation to expel or deport foreigners * * * rests upon the same grounds, and is as absolute and unqualified, as the right to prohibit and prevent their entrance into the country."

The statute at bar was enacted in exercise of this inherent right of sovereignty. The Congress in effect has ordered all aliens against whom an order of deportation is outstanding to depart from this country within a specified period, and provided for the punishment of any who wilfully fail or refuse "to depart" or "to make

99 F. Supp. 781
timely application * * * for travel or other documents necessary to * * * departure". 8 U.S.C.A. § 156(c)

Defendant asserts that this congressional enactment "is so vague and indefinite that it fails to give due notice of what it punishes" and hence falls within the constitutional prohibition of the Fifth Amendment that "No person shall be * * * deprived of life, liberty, or property, without due process of law * * *."

The due process clause of the Fifth Amendment requires that "criminal statutes * * * give due notice that an act has been made criminal before it is done * * *", Jordan v. DeGeorge, 1951, 341 U.S. 223, 230, 71 S.Ct. 703, 707, because "Every man should be able to know with certainty when he is committing a crime", United States v. Reese, 1875, 92 U.S. 214, 220, 23 L.Ed. 563. Hence "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Connally v. General Construction Co., 1926, 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed 322.

If challenged as repugnant to the due process clause of the Fifth Amendment, a statute must be tested "on its face"; for it is "the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression." Lanzetta v. New Jersey, 1939, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888; United States v. Petrillo, 1947, 332 U.S. 1, 6-7, 67 S.Ct. 1538, 91 L.Ed. 1877; cf. Dennis v. United States, 1951, 341 U.S. 494, 515, 71 S.Ct. 857, opinion of Vinson, C. J.

First challenged by defendant are those provisions of § 23 of the Internal Security Act of 1950, 64 Stat. 1010, 8 U.S.C.A. § 156(c), which declare guilty of a felony "Any alien against whom an order of deportation is outstanding * * * who shall willfully fail or refuse to depart from the...

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4 practice notes
  • United States v. Spector, No. 21940 and 21883.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • December 14, 1951
    ...in part that at the time of his arrest in this case he was at liberty on $15,000 bail, see United States v. Spector, D.C.S.D.Cal.1951, 99 F.Supp. 778, and was working as a house painter earning "approximately $65 per week"; that prior to his arrest in June of this year for alleged......
  • United States v. Schneiderman, No. 21888
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • November 28, 1951
    ...aliens. See Carlson v. Landon, 9 Cir., 1950, 186 F.2d 183; id. 9 Cir. 1951, 187 F.2d 991; United States v. Spector, D. C., S.D.Cal. 1951, 99 F.Supp. 778. As Mr. Chief Justice Vinson recently declared for the majority of the court in Stack v. Boyle, supra 72 S.Ct. "From the passage of t......
  • United States v. Spector, No. 443
    • United States
    • United States Supreme Court
    • April 7, 1952
    ...of the travel documents necessary for departure nor indicate to which country or to how many countries the alien should make application. 99 F.Supp. 778. The case is here on appeal. 18 U.S.C. (Supp. IV) § 3731, 18 U.S.C.A. § 3731. While a statute, plain and unambiguous on its face, may be g......
  • United States v. O'BRIEN, Cr. No. 40081.
    • United States
    • U.S. District Court — Western District of Michigan
    • May 26, 1965
    ...count, even though there may seem a surface inconsistency." To the same effect is the case of United States v. Spector, D.C., 99 F.Supp. 778. At page 783 of the opinion the court says: "It is permissible to charge a single offense in 255 F. Supp. 768 different ways and separate co......
4 cases
  • United States v. Spector, No. 21940 and 21883.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • December 14, 1951
    ...in part that at the time of his arrest in this case he was at liberty on $15,000 bail, see United States v. Spector, D.C.S.D.Cal.1951, 99 F.Supp. 778, and was working as a house painter earning "approximately $65 per week"; that prior to his arrest in June of this year for alleged violation......
  • United States v. Schneiderman, No. 21888
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • November 28, 1951
    ...aliens. See Carlson v. Landon, 9 Cir., 1950, 186 F.2d 183; id. 9 Cir. 1951, 187 F.2d 991; United States v. Spector, D. C., S.D.Cal. 1951, 99 F.Supp. 778. As Mr. Chief Justice Vinson recently declared for the majority of the court in Stack v. Boyle, supra 72 S.Ct. "From the passage of the ju......
  • United States v. Spector, No. 443
    • United States
    • United States Supreme Court
    • April 7, 1952
    ...of the travel documents necessary for departure nor indicate to which country or to how many countries the alien should make application. 99 F.Supp. 778. The case is here on appeal. 18 U.S.C. (Supp. IV) § 3731, 18 U.S.C.A. § 3731. While a statute, plain and unambiguous on its face, may be g......
  • United States v. O'BRIEN, Cr. No. 40081.
    • United States
    • U.S. District Court — Western District of Michigan
    • May 26, 1965
    ...on another count, even though there may seem a surface inconsistency." To the same effect is the case of United States v. Spector, D.C., 99 F.Supp. 778. At page 783 of the opinion the court says: "It is permissible to charge a single offense in 255 F. Supp. 768 different ways and separate c......

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