Schoeps v. Carmichael

¶4BONE, Circuit Judge.

¶5Appellant-petitioner Schoeps was born on November 27, 1893 in Germany and was admitted to this country -in 1911. He has resided here continuously from that time but has remained a citizen of Germany. He is not married and has no dependents.

¶6Appellant admitted that while residing in New York City on or about 1923, he committed acts of a loathsome nature upon the sexual organs of a 7 year old girl. This type of conduct, clearly involving moral turpitude, is denounced as a felony under the New York Penal Law.1 It escaped discovery until 1943, and he was never charged with or punished for this state crime. The New York statute of limitations has also barred a prosecution for this offense.2

¶7In November, 1939, appellant voluntarily departed from the United States for a visit to Mexico, returning the same day.

¶8On March 9, 1943, appellant again committed acts of sexual perversion, this time upon a 3 year old baby girl. For this offense he was arrested by the police of Los Angeles, California, and charged with lewd and lascivious conduct toward a child, this offense being a felony under California law.23 His conduct was essentially the same, although more repulsive in nature, as the offense in New York.

¶9Appellant freely admitted these acts of sexual perversion and also his trip to Mexico, to Immigration officials. He made two statements to them which were made under oath after the officials had identified themselves and after he had been warned that anything he said might be used in subsequent deportation or criminal proceedings against him. These statements, one made while appellant was in the custody of the Los Angeles police, the other the day following his release, were typed, signed, and each page initialed by appellant, and covered substantially the same facts. This procedure was in all respects in conformance with the applicable regulations.4

¶10On March 10, 1943, while appellant was in police custody, Dr. DeRiver, a Police *395Psychiatrist employed by the City of Los Angeles conducted an examination of appellant, in which appellant recounted his acts of perversion in detail. He there stated that the acts of perversions involving the child in New York occurred “two or three times.” The examination was made as a part of DeRiver’s routine duties to investigate persons arrested on sex offenses and was recorded in DeRiver’s normal report of such official investigation.

¶11Subsequent to his release from police custody, appellant was arrested by Immigration officials and charged with being a deportable alien under authority of 8 U.S.C.A. § 155(a): “… any alien who was convicted, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude … shall, upon the warrant of the Attorney General, be taken into custody -and deported. … ” Formal deportation hearings were held at which appellant was represented by counsel, and upon final administrative consideration appellant was ordered deported.

¶12Appellant sought freedom from his detention by immigration authorities in an application for a writ of habeas corpus to the district court. ' His petition, based upon a claim of administrative error in admitting appellant’s sworn statements into evidence, was denied. This appeal followed.

¶13The deportation of a resident alien is not a criminal action. United States ex rel. Bilokumsky v. Tod, 1923, 263 U.S. 149, 155, 44 S.Ct. 54, 68 L.Ed. 221, but because of the serious consequences to the deportee, the substantive fairness of the administrative hearings requires close scrutiny. Bridges v. Wixon, 1945, 326 U.S. 135, 153-156, 65 S.Ct. 1443, 89 L.Ed. 2103. Common law rules of evidence are not based in constitutional interdictions5 and administrative tribunals are not bound by such rules except those perpetuated in governing regulations.6 However a slavish and formalistic approach to the regulations is not necessary to due process. In habeas corpus proceedings, the 'court should examine no further than to see that those procedures, designed for and necessary to the intrinsic fairness of the deportation proceedings are scrupulously observed, Bridges case, supra; and, there is substantial reliable and probative evidence to justify the finding that the alien is dcportable.7 We find that the evidence in this case was substan*396tial and reliable, and that it fully sustains the order of deportation.

¶14Appellant’s Return From Mexico as an “Entry”

¶15In order for an alien’s return to this country to constitute an “entry” as contemplated by 8 U.S.C.A. § 155(a), supra, bis departure must have been voluntary, with knowledge that his destination is foreign.8 The intention to return to this country, whether after a mere few hours or an extended vacation abroad, is immaterial. If the length of time spent abroad is an element to be considered, it must be made so by Congress, not the courts. Compare Madokoro v. Del Guercio, 9 Cir., 1947, 160 F.2d 164; Cahan v. Carr, 9 Cir., 47 F.2d 604, 605; Lewis v. Frick, 233 U.S. 291, 297, 34 S.Ct. 488, 58 L.Ed. 967. This is not a “sleeping car” case, Di Pasquale v. Karnuth, 2 Cir., 158 F.2d 878, nor does it present a situation similar to that shown in Del Guercio, etc., v. Delgadillo, 9 Cir., 159 F.2d 130, reversed in Delgadillo v. Carmichael 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17. Appellant’s visit to Mexico required and was the result of a willful and purposeful intent to depart from the United States. The evidence leaves no doubt that he regarded it as a pleasure trip. To hold that his return into the United States from this trip did not constitute a re-entry would devitalize the law clearly applicable to such an “entry” and leave it utterly meaningless. If this sort of a change in the law is to be effected, Congress and not the Federal Courts should sanction it.

¶16The Alien’s Prior Crime ,

¶17Appellant in no way denies the acts of sexual perversion shown by this record and it is not contested that his conduct in New York in 1923 constituted a felony, and involved moral turpitude. Success in evading deserved punishment in no way mitigated that .offense.

¶18That the crime was committed in the United States is of no consequence so long as it -is “prior to entry.” The obvious purpose of section 155, supra, was to rid the United States of undesirable aliens. See United States ex rel. Volpe v. Smith, 1933, 289 U.S. 422, 425, 53 S.Ct. 665, 667, 77 L.Ed. 1298 where it was said: “Aliens who have committed crimes while permitted to remain here may foe decidedly more objectionable than persons who have transgressed the laws of another country.” 9

¶19Admissibility of Prior Statements

¶20The basic questions in this case are whether the admission of appellant’s sworn statements violated standards of fundamental fairness necessary to the validity of the hearing or violated the procedural regulations here applicable and necessary to assure such fairness. This Circuit has uniformly held such statements to be admissible.10

¶21*397We cannot hold that standards of “fundamental fairness” of the deportation proceedings, which are administrative proceedings not bound by strict common law rules of evidence, are violated when common sense dictates that these statements would have been judicially admissible and accepted as substantive evidence as “admissions.” 11

¶22Appellant denied under oath at the formal deportation hearing on June 12, 1943 before a Presiding Inspector that he had made a sworn statement before an Immigration Inspector (Busselle) in the Los Angeles Jail, and denied that he entered Mexico in 1939. On the latter point he was questioned and made answers as follows:

¶23“Q. Where and when did you last enter the United States? A. In 1910—I came to Los Angeles from New York.

¶24“Q. Were you in Mexico since your entry in 1910 at New York? A. No. I was in San Diego—that’s as far as I got.

¶25“Q. The warrant of arrest states you last entered this country at San Ysidro, California, on Thanksgiving Day, in November 1939. Is that correct? A. No, it isn’t. I went to San Diego with my lady friend and stayed there for Thanksgiving and came back that night.”

¶26The foregoing was a 'blunt denial of his sworn statement made before Inspector Busselle in Los Angeles 'Central Jail on March 10, 1943. That statement, in questions and answers, is as follows:

¶27“Q. When and where did you last enter the United States? A. I last entered the United States at San Ysidro, California on Thanksgiving Day, 1939.

¶28“Q. For what purpose did you enter the United States? A. To get back home again.

¶29“Q. At the time of your last entry into the United States were you questioned by a United States Immigration Officer? A. Well, they stopped us on the border and looked in the window of the car and said ‘where are you from?’ I said ‘New York,’ and they waived us on.”

¶30Confronted with this contradictory testimony which reached to the very heart of the case, the Presiding Inspector ordered the formal deportation hearing continued until he could secure the return of Inspector Busselle who was then on detail in Arizona. Busselle later testified in this hearing concerning the taking of the sworn statement of Schoeps in which the appellant admitted his entry into the United States at San Ysidro in 1939.

¶31*398The prior recorded and sworn statements were dear ly against appellant’s interest. The modern rule, as we see it, is that a statement (even though unsworn) is admissible as substantive evidence, if the fact asserted in the declaration is so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjects him to criminal or civil liability, or renders him an object of hatred, ridicule or social disapproval, that a reasonable man would not have made such a statement unless 'he believed it to be true. See Citizens’ Nat. Bank of Los Angeles v. Santa Rita Hotel Co., 9 Cir., 1927, 22 F.2d 524. The common sense reason underlying the rule is that a statement which asserts “a fact distinctly against one’s interest is unlikely to be deliberately false or heedlessly incorrect, and is thus sanctioned, even though oath and cross examination are wanting.” 5 Wigmore, supra, § 1457. See Gin Soon Ging v. Carmichael, 9 Cir., 1941, 123 F.2d 72. In this case appellant’s statements were under oath and he was present for cross-examination.

¶32Claim That the Regulations Were Violated

¶33Appellant, however, contends that the regulations of the Immigration Service12 forbid the introduction of these recorded statements. The applicable regulation provides: “A recorded statement made by the alien … during an investigation may be received only if the maker of such statement is [1] unavailable or [2] refused to testify at the warrant hearing or [3] gives testimony contradicting the statements made during the investigation.” It is clear that appellant did refuse to testify as to a material matter appearing in his sworn statement taken during the investigation and did give testimony contradicting that statement. Hence the necessity of calling Busselle as a witness.

¶34We are of the view that this record fully establishes that all applicable regulations were scrupulously observed. Their validity is not challenged.

¶35At the very inception of the formal hearings, appellant testified that he had never been in Mexico, either in 1939 or any other year. This was clearly contrary to his prior recorded sworn statement and thus the recorded statement in toto immediately became admissible, including as it did, the admissions of 'his crimes recorded therein. The above regulation sensibly makes the “recorded statement” admissible—not merely that portion of the recorded statement contradictory of appellant’s assertions at the warrant 'hearing. The reason for this would seem obvious. It is assumed since the alien signed the recorded statement under oath that he spoke the truth and will do the same when later testifying at the hearings. Therefore recorded statements, although probative .and credible, will ‘be unnecessary. They will not be the “best” evidence. However, when the alien changes his story, the whole of his testimony at the hearings becomes immediately suspect, and thus the whole of the previously recorded statements is admissible as substantive evidence.

¶36The sworn and recorded statements 'are admissible under yet another exception in the above regulation. When appellant was questioned at the warrant hearing concerning his previously admitted acts of sexual perversion, his counsel immediately and repeatedly claimed for him a “privilege against self-crimination,” respecting these matters, using such language as: “On advice of counsel, he will refuse to answer,” and, “I instruct you not to answer the question.”

¶37The record reveals that he followed t'he advice of his counsel; he remained silent and did not answer any of the questions propounded to him concerning these alleged sex offenses. The record indicates that he did not assert any personal claim of privilege in connection therewith. His silence or refusal to answer on these matters appears to have been due solely to the advice of counsel. The record is also clear that he did not attempt in any way to repudiate his prior written and *399voluntarily sworn confession that he had committed these offenses.

¶38As to the claim of privilege against self-incrimination being personal to him, see Ziegler v. United States, 9 Cir., 174 F.2d 439, 447 and cases cited in notes 26 and 27. For further comments on the personal nature of claim of privilege asserted by a witness, consult Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652; Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771, Ann.Cas.1912D, 558; United States ex rel. Vajtauer v. Commissioner, 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560; United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, 82 L.Ed. 1376; United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542, 152 A.L.R. 1202.

¶39We think that this situation is clearly an instance of a refusal to testify under the second alternative of the above noted regulation relating to the use of statements or admissions made during Investigation. These matters are also discussed at a later point in this opinion.

¶40One further matter suggested on appeal should be noted at this point. Appellant’s answers to the first investigatory interrogation were, at the time, reduced to longhand by the investigator. It was in these answers that appellant made the admissions concerning his acts of perversion and his trip to Mexico in 1939. On cross examination of this investigator, at the warrant hearing, appellant’s counsel asked that these longhand notes be admitted. Appellant cannot now object that this evidence was received.

¶41We hold that the recorded statements, which were made freely and voluntarily under oath and with appellant’s full knowledge that the Government was free to use them against him in any subsequent proceeding, were validly admitted. We further hold that there is substantial probative evidence in the record to fully support the deportation order. As stated in Quon Quon Poy v. Johnson, 1927, 273 U.S. 352, at page 357, 47 S.Ct. 346, at page 348, 71 L.Ed. 680, “We see no reason to doubt that evidence properly taken before an inspector …—which 'has substantially the same effect as a deposition taken in an ordinary case—may be introduced before the Board and considered.” This statement is given added emphasis in this case by the fact that appellant made no effort to repudiate his previous sworn statements except in the manner we have noted,

¶42Admission of the Physician’s Report

¶43The foregoing comments on the admissibility of the sworn written statements bear directly on the issue presented by the admission of the routine report of Dr. DeRiver the Los Angeles Prison Psychiatrist. Appellant contends that the admission of this physician’s report was prejudicial error. We cannot agree with this contention.

¶44The warrant of deportation in this case was not rested upon proof of the 1943 Los Angeles sex offense against a three year old girl. The final determination, and the one which is decisive of appellant’s rights, is recited in the warrant of deportation. The essential and controlling part reads as follows: “Whereas, after due hearing before an authorized immigrant inspector, and upon the basis thereof, an order has been duly made that the alien Jacob Schoeps or .Jack Schoeps who entered the' United States at San Ysidro, Calif., on .Thanksgiving Day of 1939, is subject to deportation under the following provisions of the laws of the United States to wit: The Act of Feb. 5, 1917, in that he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: He being over the age of 18 years, indulged in indecent and immoral practices with the sexual parts or organs of a child under the age of 10 years.” (Emphasis supplied.)

¶45From the foregoing warrant of deportation it clearly appears that the sole and only basis for appellant’s deportation is his admission of the commission of a felony (in New York) involving moral turpitude (at a time) prior to entry into the United States. This “entry” was, of course, the “entry” in 1939.

¶46*400In the vital and end result we have noted, the effect of the DeRiver report is demonstrated to be harmless. We, therefore, need not decide whether the report should have been excluded as “hearsay.” However, we note that Dr. DeRiver testified at the hearing and was cross-examined by appellant’s counsel. Further, his report was properly qualified by him as being an official routine report made in the performance of required official duties.

¶47Congress has apparently not seen fit to legislate on the question of the so-called “physician-patient privilege” and for the reasons above stated we do not follow the suggestion that it is here applicable since we do not believe that it bears on the question of fairness of the administrative hearing given appellant13 or the ultimate and controlling reason for his deportation.

¶48It is our view and we hold that admission of the records above referred to did not deprive this administrative hearing of “fundamental fairness.”

¶49Self-Incrimination Privilege

¶50Appellant strongly contends that an alien may invoke the privilege against self-incrimination in deportation proceedings. In a proper case, we assume the privilege would be applicable. United States ex rel. Vajtauer v. Commissioner, supra. However, for the rule of privilege relied upon to be applicable under the facts in the case at bar, the privilege of refusing to answer would have to rest upon a showing that an answer would involve the claimant in tangible danger of conviction of a Federal offense. United States v. Murdock, 1931, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, 82 A.L.R. 1376.14 None of appellant’s acts of sexual perversion involved, nor is it claimed that they involved, a violation of any Federal statute. Under the circumstances of this case the claim of privilege here asserted lacks merit.

¶51Furthermore, the “privilege” against incriminating himself (as to the New York offense against a seven year old girl, long since outlawed, and also as to the 1943 Los Angeles offense) was clearly waived when appellant made the claimed incriminatory statements to the investigating inspector voluntarily and under oath after he was carefully advised by the inspector that they might be used in subsequent deportation or criminal proceedings -against him. 15

¶52After a hearing on the petition for the writ of habeas corpus, the lower court made and entered Findings of Fact and Conclusions of Law and it is sufficient to say that they proclaim the fairness and regularity of t'he deportation proceedings and provide full support for the order deporting Schoeps to Germany. The decision of the court rests upon a record replete with sustaining evidence of a substantial, convincing, and compelling character, and the order discharging the writ of habeas corpus is affirmed.

¶70JAMES ALGER FEE, District Judge

¶71(concurring).

¶72This is a difficult choice. But there are certain definite lines of force. We should not allow a moral reaction to prevent us from protecting all basic rights of petitioner, even in this civil case. On the other hand, we should not permit the enormity of the actual penalty—exile—to sway us in carrying out a plain mandate of the stat*401ute. As to the first, Judge Bone’s clear and well documented opinion shows that the administrative officers lived up to the letter of the statutes and regulations, although clumsily enough—as is often the case. Under more popular statutes, there would be no question about reaching some distance to support them1 Every right of petitioner was protected in the face of manifest perjury on his part and in the face of his contemptuous refusal to answer questions when a nonexistent privilege against self crimination was claimed by counsel, not by him.2 This criminal should not 'be pardoned because the record shows he is a Hebrew 'and the deportation is to Germany. There is no doubt as to the fact that petitioner committed and admitted the commission of two crimes, each involving moral turpitude. There is no doubt that petitioner did enter the United States after the commission of one of the offenses. The statute in language and intent then covered the exact situation. The findings of fact and the conclusions of the District Judge are binding upon us under these circumstances. This answers the two considerations posed above.

¶73But other beacons attract our attention. In our opinion, the Act makes a foolish and untenable distinction between those aliens who have committed crimes and have thereafter made technical re-entry into the country and those aliens who 'have simply committed crimes of enormity, not political offenses in this country. If it had provided for deportation of the latter, the country would have been spared becoming in many instances a “cesspool of offscourings” instead of a “melting-pot,” as Zangwill movingly and truly portrayed it. But this is beyond the power of the judiciary by interstitial penetration or forthright amendation.

¶74Notwithstanding the highly fortuitous incidence of such a re-entry, the Supreme Court of the United States, in United States, ex rel. Volpe v. Smith, 289 U.S. 422,3 held this type laid the basis for deportation. A fertile mind might suggest distinctions, but we will not chop logic. No obvious answer occurs to the query of how a man can make a re-entry as an alien from a foreign country, on which he has casually set foot, into a country in which he has already been permanently domiciled for more than twenty years.

¶75Since we believe, as a policy, this alien and all others who have committed such crimes should be deported whether they have re-entered or not, we are content to rest concurrence on the authority of the ■highest court.

¶76The District Court should be affirmed and the writ should be dismissed.