Varga v. Rosenberg
| Citation | 237 F. Supp. 282 |
| Decision Date | 23 September 1964 |
| Docket Number | Civ. No. 64-796. |
| Parties | Petition of Roberto Rodriguez VARGA for Writ of Habeas Corpus, Petitioner, v. George K. ROSENBERG, District Director of Immigration and Naturalization Service at Los Angeles, Respondent. |
| Court | U.S. District Court — Southern District of California |
David C. Marcus, Los Angeles, Cal., for petitioner.
Manuel L. Real, U. S. Atty., Donald A. Fareed, Asst. U. S. Atty., Chief Civil Section, James R. Dooley, Asst. U. S. Atty., by James R. Dooley, Los Angeles, Cal., for respondent.
Petitioner made application for a writ of habeas corpus and the Court issued an order directing the respondent to show cause why the petition should not be granted. The matter came on regularly for hearing on the 21st day of July, 1964, and after hearing the evidence and arguments of counsel, the Court now renders its memorandum of decision.
Petitioner is a Mexican citizen who was admitted to the United States on March 31, 1961, as a permanent resident. On December 9, 1963, he was convicted of a violation of Section 11721 of the California Health and Safety Code, which provides in part:
"No person shall use, or be under the influence of narcotics, excepting when administered by or under the direction of a person licensed by the State to prescribe and administer narcotics."
Petitioner served sixty-five days in the County Jail under sentence of the Superior Court of Los Angeles.
On February 7, 1964, a hearing was held on an order to show cause why petitioner should not be deported pursuant to Subsection (11) of Section 1251(a) of Title 8 U.S.C.A. This section provides that any alien in the United States shall be deported who:
"* * * is, or hereafter at any time after entry has been, a narcotic drug addict, or who at any time has been convicted of a violation of, or a conspiracy to violate, any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marihuana, or who has been convicted of a violation of, or a conspiracy to violate, any law or regulation governing or controlling the taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, exportation, or the possession for the purpose of the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of opium, coca leaves, heroin, marihuana, any salt derivative or preparation of opium or coca leaves or isonipecaine or any addiction-forming or addiction-sustaining opiate; * * *."
Petitioner orally waived his right to counsel at the hearing and after the oral order of deportation, waived the right to appeal to the Board of Immigration Appeals. The time for this appeal has long since expired. Petitioner also failed to seek review in the Court of Appeals, pursuant to Section 1105a of Title 8 U.S.C.A. The six-month period allowed for such review has also passed.
Petitioner was ordered deported to Mexico, but was released from physical custody on the posting of a $1,000.00 bond, prior to the date this petition was filed.
The Court deems it expedient to take up the jurisdictional issues following a discussion of the merits.
The substantive issue is whether petitioner's conviction under Section 11721 of the California Code renders him deportable pursuant to Section 1251(a) (11), Title 8 U.S.C.A. From the face of the record of the deportation hearing, especially the oral decision of the Special Inquiry Officer, and from the official charge made in those proceedings, it is clear that petitioner was held deportable because of his conviction in the State Court of the crime of unlawful use and being under the influence of narcotics. He was not convicted in the State Court of being addicted or of having been addicted to the use of narcotics, nor was he so charged in the deportation hearing.
The question is whether the Federal Statute referring to "the conviction of a violation of * * * any law or regulation relating to the illicit possession of * * * narcotic drugs," includes the crime of which petitioner was convicted in the California Court. Legislative history is cited as indicative of the congressional intent to include the California offense, to wit, unlawful use of, and being under the influence of, narcotics.
While Congress undoubtedly intended to close "every possible loophole where a person had been convicted of a crime relating to the possession of narcotics," the legislative history indicates that the Committee's aim was to eliminate traffic in narcotics as distinguished from use. For example, the Committee concludes its report in the following words:
1956 U.S. Code, Congr. & Adm.News, p. 3274, et seq., 3281. (Emphasis added.)
Congress undoubtedly has aimed its attack upon possession which would give the possessor "such dominion and control of the liquor as would have given him the power of disposal." The quoted words are borrowed from Toney v. United States, 62 App.D.C. 307, 67 F.2d 573, a case involving the crime of possession of liquor.
Petitioner in the case at bar was convicted for use or being under the influence of narcotics. In other words, the narcotics were in his system. At this point the defendant was hardly in a position to traffic in the drug and can hardly be said to have possession which would give him such dominion and control as to include the power of disposition.
Prior to amendment of 8 U.S.C.A. § 1251(a) (11), the statute referred only to possession "for the purpose of the manufacture, production, compounding, transportation, * * * giving away, importation or exportation" of the narcotic. It is consonant with the aforementioned purpose of Congress to include a provision relating to possession alone to obviate the burden of proving possession for a specific purpose. Any disposable narcotic in the possession of anyone is potentially in the narcotic traffic. The object was to accomplish by the best means possible the elimination of the illicit traffic.
A distinction between being under the influence of narcotics or having possession is likewise to be found in the laws of California. Section 11500 of the Health and Safety Code of California prohibits possession of narcotic drugs. Penalties for conviction of this crime range from two to ten years for first offenders with no parole for at least two years, to from fifteen years to life imprisonment with no parole for fifteen years in the case of the third offense. On the other hand, Section 11721 of the Health and Safety Code of California under which petitioner was convicted sets imprisonment at from ninety days to one year with probation possible after ninety days. In addition, violation of Section 11500 is a felony triable only in Superior Court, while violation of Section 11721 is a misdemeanor triable in Municipal Court. A person under the influence of narcotics is a public hazard in the category of a drunk, and is treated that way, while the trafficker in narcotics is a real menace to society.
The argument that use necessarily includes possession is unsound. The District Court of Appeal of California in People v. Ayala, 167 Cal.App.2d 49, 334 P.2d 61 (1950), commented:
"It is not necessary that one must have narcotics in his possession, in the sense that term is used in section 11500, in order to be under their...
To continue reading
Request your trial
-
United States ex rel. Parco v. Morris
...§ 1252(d); United States ex rel. Marcello v. District Director of INS, Civil No. 76-957 (E.D.La., June 11, 1976); Varga v. Rosenberg, 237 F.Supp. 282 (S.D.Cal. 1964). See generally "Developments in the Law — Federal Habeas Corpus," 83 Harv.L.Rev. 1038, 1238-59 (1970). As a district court, w......
-
United States v. Tarlowski
...condition that petitioner comply with municipal housing codes constitutes a restraint not shared by public generally); Varga v. Rosenberg, 237 F.Supp. 282 (S.D.Calif.1964) (petitioner free on bond pending deportation); Reis v. United States Marshal, 192 F.Supp. 79 (E.D.Pa.1961) (petitioner ......
-
Ijoma v. INS
...8 U.S.C. § 1252(d); United States ex rel. Marcello v. District Director of INS, Civil No. 76-957 (E.D.La., June 1976); Varga v. Rosenberg, 237 F.Supp. 282 (S.D.Cal.1964); see generally "Developments in the Law Federal Habeas Corpus," 83 Harv.L.Rev. 1038, 1238-59 11 See note 3 supra. 12 Agai......
-
Matter of Esqueda
......§ 1182(a)(23) (1970). In reaching that conclusion, we followed Varga v. Rosenberg, 237 F. Supp. 282 (S.D. Cal. 1964), which rejected the position that use of a drug necessarily includes its possession, and we ......