Caranica v. Nagle

23 F.2d 545 | 9th Cir. | 1928

GILBERT, Circuit Judge.

The Secretary of Labor issued a warrant directing the deportation of the appellant, an alien, upon the ground that he was found in the United States in violation of the Immigration Act of February 5, 1917 (Comp. St. § 428914a et seq.), in that he was found connected with the management of a house of prostitution and sharing in and deriving benefit from the earnings of a prostitute. To the appellant’s petition for a writ of habeas corpus in the court below the appellee demurred. The demurrer was sustained, and the petition denied. From that order the appellant appeals.

The petition alleged that the appellant was deprived of a fair hearing in that (1) he was denied an opportunity to cross-examine the witnesses Harris and Nullett; (2) that the testimony of Inspector Howell was admitted to show that the petitioner, under the name of Walker, had been convicted in Marysville of violation of tbe National Prohibition Act (27 USCA), which was subsequently shown to be untrue; (3) that Inspector Farley had filed a report that certain persons in Vallejo had given detrimental testimony as to the character of the appellant, and had refused to disclose the names of his informants; (4) that the said witness Howell testified to statements made by one Bessie- Cohn, but she was not subpoenaed to attend the hearing, nor was the appellant given an opportunity to cross-examine her; and (5) that the evidence was insufficient to prove that the appellant had committed any offense against the immigration statutes of the United States.

By consent of the parties the immigration records were filed and considered as part of the original petition. It appears therefrom that the appellant was arrested at 216% C street, Marysville, Cal., a plaóe which was shown to be a notorious open house of prostitution. He was found occupying a room with a connecting door to the bedroom occupied by Mary Hams, who managed the establishment. He at first persisted in denying that he occupied that room, but he later admitted it. In his possession in that room were several canceled checks, which had been drawn in favor of Mary Harris; also two receipts for money paid by her to. the former manager for the purchase of the establishment. The petition alleged that these represented loans to Mary Harris, and the appellant offered in evidence a chattel mortgage to sustain that statement; but the testimony was not believed, and in the inspector’s summary of the case for the Secretary-it was said: “I believe the record clearly shows that the alien was the actual owner and operator of the house of prostitution involved, and that the mortgage offered in evidence by the defense is nothing more than a common subterfuge resorted to by persons engaged in such enterprises, for the purpose of concealing their actual interest in sueh houses of prostitution.”

As to the first specification, that the hearing was unfair, in that the appellant was denied an opportunity to examine the witnesses Harris and Nullett, the records show that their statements were taken on June 4, 1927, without objection by the appellant, but that on the next hearing, which was on June 25, he objected thereto on the ground that he had no opportunity to cross-examine the witnesses ; but he made no request for their production for cross-examination. The bureau thereupon, upon its own motion, postponed the hearing until an effort could be made to locate the witnesses. On a subsequent hearing in November it was shown that efforts had been made to find them without result. Owing to the faet that they had not been cross-examined the board of review in its recommendation said: “These persons were not presented for the purpose of cross-examination, and objection of counsel was therefore well taken, and the statements have not been considered.”

As to the testimony of Howell, which was later found to be untrue, that the appellant, under the name of Walker, had been convicted of the unlawful possession of liquor, the error is not one that should be held to vitiate the proceeding, for that testimony was not included in the summary of the ease which was presented to the Secretary, and the other evidence which was received was in itself amply sufficient to support the. order of deportation. The faet that Inspector Farley testified to hearsay statements that the appellant was a Greek pimp, and had a wife practicing prostitution in San Francisco, and that upon cross-examination he refused to disclose the names of his informants, does not show that the hearing was unfair. Arnstein v. United States, 54 App. D. C. 199, 296 F. 946, 950; Mitrovich v. United States (C. C. A.) 15 F.(2d) 163; Segurola v. United States (C. C. A.) 16 F.(2d) 563.

Nor is the hearing shown to have been unfair, in that the appellant was given no opportunity * to cross-examine the witness Bessie Cohn upon the statements made by her. She stated that she had recently bought the furniture from the prior manager of the establishment, and that she owed the appellant a balance of $1,550, and considered him the owner, and she showed a receipt, signed by him, for the payment of an installment. The appellant admitted that the furniture was in the establishment, and that he was receiving installments on account of the purchase thereof. Bessie Cohn’s testimony, in any view, afforded little information upon the issues, and, even if it be conceded to have been incompetent, it is not ground for reversal, for it was not relied upon or mentioned in the summary which was submitted to the Secretary.

We find no merit in the assignment that the court below erred in holding the evidence sufficient to sustain the order of deportation. The appellant admitted that he had been living several months in the house, which was a notorious house of prostitution. The officers testified that the room occupied by him had all the appearance of being used jointly with the room occupied by the landlady, who was admittedly a prostitute, and that in it on a table were found articles generally used by women of that class. A police officer testified that on one occasion, when he visited the house in connection with his official duties, the appellant in his hearing rebuked the manager for having the electric lights out at the entrance, and asked, “What the hell the lights were out for; that you could not' make any money with the lights out.” In denying the writ, the court below properly summed up the ease in saying: “There is ample competent evidence that, at the very least, the petitioner is connected with — that is, has a part in and with the manager of — the immoral house involved.”

The judgment is affirmed.