Weinstein v. Attorney General of the United States, 122.
| Decision Date | 01 March 1921 |
| Docket Number | 122. |
| Citation | 271 F. 673 |
| Parties | WEINSTEIN v. ATTORNEY GENERAL OF THE UNITED STATES et al. |
| Court | U.S. Court of Appeals — Second Circuit |
By affidavit and extracts from the records of the District Court Weinstein showed that he was an alien residing in Brooklyn and pursuant to a warrant issued by the Acting Secretary of Labor had been arrested as being found in the United States in violation of the Immigration Act of 1918 (Comp. St. Ann Supp. 1919, Sec. 4289 1/4b(1)), in that he was a member of or affiliated with an organization believing in the overthrow by force and violence of the government of the United States etc. Pursuant to this warrant he was taken to Ellis Island and subsequently released on bail pending hearing. The affidavits then assert, on information and belief, that persons believed to be 'agents of the Department of Justice' seized and removed from his Brooklyn residence certain books, magazines, papers, and letters belonging to him, which books, etc., had not been returned, but had remained 'in the custody of the agents of the Department of Justice under the guidance of the deputy Attorney General thereof, or in the custody of the Commissioner of Immigration or his subordinates or agents. ' The books and papers aforesaid are not alleged to have been seized under search warrant therefor, but the seizure was (apparently) contemporaneous with the aforesaid arrest of Weinstein on executive warrant.
On this showing Weinstein procured an order to show cause, directed specifically to the attorney for the Southern District, Mr. Hoover, a deputy Attorney General, Mr. Uhl, Commissioner at Ellis Island, Mr. Schell, inspector of immigration, and Mr. Scully, chief of the Bureau of Investigation of the Department of Justice, requiring them severally to show cause 'why an order should not be entered directing that they return to the petitioner the books and papers' above referred to. Service of the order was made upon the United States attorney alone. On the return day that attorney appeared 'specially' and moved that the order be discharged (1) as having been ineffectively served, and (2) because it had been improvidently granted, in that the court was without power to grant the relief demanded. After argument, the order was discharged, and Weinstein took this appeal.
Charles Recht, of New York City (Isaac A. Hourwich and Rose Weiss, both of New York City, of counsel), for Weinstein.
Francis G. Caffey, U.S. Atty., and Theodore Megaarden, Sp. Asst. U.S. Atty., both of New York City, opposed.
Before WARD, ROGERS, and HOUGH, Circuit Judges.
HOUGH Circuit Judge (after stating the facts as above).
There is not even a suggestion that the books sought to be recovered by Weinstein are now or ever have been in the possession or under the control of the United States attorney for the Southern district of New York. Under such circumstances the service of the order to show cause was, to say the least, insufficient, in that it did not bring before the court any of the parties accused of alleged wrongdoing. it may have been thought (though not argued at bar) that service on the attorney somehow affected or was sufficient in respect of all the other enumerated representatives of divers...
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...of the court. See United States v. Maresca (D. C.) 266 F. 713; United States v. Hee (D. C.) 219 F. 1019, 1020. Compare Weinstein v. Attorney General (C. C. A.) 271 F. 673. Where an application is filed in that form, its essential character and the circumstances under which it is made will d......
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...bring into court any representative of the government in any of its divers branches. This is wholly erroneous. See Weinstein v. Attorney General, 271 F. 673, 675 (C. C. A. 2); Applybe v. United States, supra. We are not informed of any statutory provision which gives the District Court summ......
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Weinberg v. United States, 206.
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