United States v. Uhl, 190.

• Decision Date: 12 May 1920
• Docket Number: 190.
• Citation: 266 F. 34
• Parties: UNITED STATES ex rel. DIAMOND v. UHL, Acting Immigration Com'r.
• Court: U.S. Court of Appeals — Second Circuit

266 F. 34

UNITED STATES ex rel. DIAMOND v. UHL, Acting Immigration Com'r.

No. 190.

United States Court of Appeals, Second Circuit.

May 12, 1920

Charles Recht, of New York City (Elinor Byrns and David Barr, both of New York City, of counsel), for appellant.

Francis G. Caffey, U.S. Atty., of New York City (David V. Cahill, Sp Asst. U.S. Atty., of New York City, of counsel), for appellee.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS Circuit Judge.

The petitioner applied for a writ of habeas corpus and alleged that he was being unlawfully detained at the immigration station at Ellis Island, N.Y., and was about to be deported to Italy. A hearing was had before the District Court for the Southern District of New York, and the writ of habeas corpus has been dismissed, and the petitioner remanded to the custody of the acting commissioner of immigration at the port of New York.

It appears that the relator is an alien, a native of Italy, born in 1876, and that he came to the United States in 1901, and declared his intention to become a citizen in 1917. It also appears that he was arrested on July 18, 1919, under a warrant of arrest issued by the Department of Labor which charged 'that he advocates the assassination of public officials, and that he advocates the unlawful destruction of property. ' His arrest was followed by hearings, one on July 23, 1919, and another on September 16, 1919, before the United States immigrant inspector. The inspector at the close of the hearings found the following facts:

'(1) That the said Rocco Di Blasis is an alien, namely, a subject of Italy. (2) That he is in the United States in violation of law in that he is an anarchist, that he believes in or advocates the overthrow by force or violence, of the government of the United States, and that he advocates the unlawful destruction of property. It is recommended that the said Rocco Di Blasis be deported.' The report of the hearings and the findings were submitted to the Department of Labor.

The relator being unable to speak and understand the English language satisfactorily, an interpreter in Italian was sworn who interpreted all questions asked and answers given at the hearings. The relator was informed at the time that the purpose of the hearings was to afford him an opportunity to show cause why he should not be deported to the country whence he came. He was represented throughout the hearings by counsel, and witnesses called by him were heard.

The arrest of the relator was due to a riot in the city of Rome, N.Y., on July 14, 1919. In June and July there was a strike on among the operatives at certain mills in that city. The petitioner was a restaurant keeper, and apparently not connected with any of the mills. He appears, however, to have been active in the strike, and to have taken part in an attack made on one Spargo, the president and manager of one of the mills, who was assaulted and stabbed while in his automobile. The result was that relator was placed under arrest by the state authorities, charged with two offenses, and was released on bail; $3,000 on one charge and $5,000 on the other charge. An affidavit made by Spargo is in the record, which is as follows:

'James A. Spargo, being duly sworn, says that he is president of the Spargo Wire Company, of Rome, N.Y.; that on July 14, 1919, as he was going down East Dominick street, in the city of Rome, N.Y., in his automobile about 8 o'clock in the morning, a large crowd of people led by Rocco Di Blasis attacked deponent, stopping his automobile and breaking same; that the said Rocco Di Blasis jumped on the running board of said car and stabbed deponent on the arm; that after deponent was stabbed he grabbed his gun, but deponent was overpowered, stabbed, bruised, clubbed, and beaten about the head and body and by the crowd led by Di Blasis; that deponent had been told that he was a marked man and would be killed; that deponent has been told that his house would be blown up, and that the houses and plants of the various manufacturers of the city of Rome would be destroyed, and that the manufacturers themselves would be gotten.'

This affidavit was read to relator, and he was asked whether it was true. He denied that it was, and denied that he was leading the crowd, but admitted that he was present. The following is an excerpt from the record:

'Q. Were you present? A. I was.

'Q. Tell me what happened. A. I was present and saw Mr. Spargo with a revolver in his hand, and he shot three times; then for don't let somebody killed I jumped upon his automobile; in meantime he started to shoot me; I give him a punch on the arm and let the revolver knock down. I took the revolver in my hands and I give it away to first man, then I come out of automobile. Mr. Spargo claims I had a knife in my hand, but I did not have anything. If I wanted to hurt Mr. Spargo, I could use his gun on him. I think I save his life.'

There is in the record an affidavit from a policeman which is as follows:

'Joseph M. Nero, being duly sworn, says that he was on duty as patrolman on East Dominick street, in the city of Rome, N.Y., on the morning of July 14, 1919, at the time of the riot when Spargo was stabbed; that Di Blasis was the leader of the mob, and opened the door of Spargo's automobile, and jumped in on Spargo; that deponent saw Di Blasis in the car and pulled him out; that the same morning, previous to the Spargo incident, deponent saw Di Blasis in a trolley car putting people off and insisting that no one could ride on the trolley; that deponent argued with Di Blasis that he had no right to put people off the car, but Di Blasis insisted no one should ride; that deponent arrested Di Blasis, and in searching his residence found I.W.W. literature, consisting of paper, 'Il Nuovo Proletario,' pictures of Rosa Luxemburg and Liebknecht, the speech of Debs at Atlanta prison gates, 'La Russia Socialists,' preamble and constitution and due books of the I.W.W., application blanks for membership, etc.; that deponent has been informed and believes that said Di Blasis has been advocating violence during the strike in the city of Rome during the last two months, and advocating destruction of persons and property, and has been the leader of agitation, and has known of said Di Blasis addressing crowds; that deponent found revolver in the kitchen of Di Blasis residence; that Officer Uhl saw Di Blasis at 3 o'clock one morning during the strike with a baseball bat walking the street; that June 30th, during a riot in the city, Di Blasis was urging and inciting the crowd, by hollering, 'Get um!' ' Get um!' A large quantity of literature was found.'

The relator's attention was called to this affidavit and he was asked:

'Q. Is any or all of that true? A. Some is all right. I went up to the street car, I was last one to go in and last one to go out; Nero told me I had no right to ask people if they had a book of the Union. I did not force them; I merely asked for their union card.'

'Q. Did you lead that crowd? A. No; I was with the people, but I was not leading them.

'Q. Are you a member of the I.W.W.? A. I was a member, but not now. Now I am a member of the A.F. of L.'

The following affidavit was also read to the relator, and he was asked whether the statements it contained were true, and he admitted that they were:

'Joseph Rizzuto, being duly sworn, deposes and says: I am a citizen of the United States, over 21 years of age, residing at 219 East Dominick street, Rome, N.Y., and a merchant at the same address. I know Rocco Di Blasis, and about three days before he was arrested, I called Di Blasis to my place and talked to him. I asked him why he got out early in the morning and went with the crowds; that I had heard that he was causing lots of trouble, talking to these people, getting them excited. I told him he had a wife and children and should not do that, that he should attend to his own business, and that if he did not stop, he would be getting into trouble himself. I gave him advice, and told him not to go out, but to stay at home, and take care of his own business, and stop his noise. I told others the same.'

An affidavit was presented at the hearing, made by one Capozzoli, which in part is as follows:

'* * * Di Blasis claims to be a member of the I.W.W. and the chief leader of the organization in the city of Rome. Di Blasis has shown deponent a certificate issued to him in 1917, showing him to be a duly credited representative of the I.W.W. organization, and he is the collector of the dues for said organization in the city of Rome. Di Blasis claims that there are 40 or 50 members of his organization in this city, and that, if this strike situation does not break right in the very near future, it may be necessary for him to take control of the situation with the members of his organization. He is the distributor of a semiweekly publication of the I.W.W. organization, and has also distributed pamphlets containing a speech of Debs made at the threshold of Atlanta prison, a copy of which he gave to deponent. Di Blasis claims that he procured an I.W.W. organizer by the name of Valentine or Valenda to speak in Rome on June 29, 1919, for which he paid $26 out of his own pocket, and which amount he expects to collect from other members of his organization.

'Di Blasis further stated to deponent that he is not a reformatory Socialist, but he is a revolutionary Socialist and that ...