REYFF et al. v. UNITED STATES.* (Circuit Court of Appeals, Ninth Circuit. November 3, 1924.)

No. 4227.

1. Intoxicating liquors 255-Defendant not entitled to return of liquor seized.

Where defendant, while in an automobile, Bold and received payment for liquor, which he stated was in the back of the car, and by direction of the purchaser drove to a garage to deliver it, where he was arrested and the liquor seized, title to the liquor had passed to the purchaser, and defendant was not entitled to an order for its return.

2. Criminal law 395-Liquor seized without a warrant, but while being unlawfully transported by defendant, held admissible in evidence.

Where defendant made a sale of liquor, which he was transporting in an automobile, of which sale prohibition agents had knowledge, they were authorized, under Prohibition Act, tit. 2, § 26 (Comp. St. Ann. Supp. 1923, § 101382mm), to seize the liquor, and it was admissible in evidence against defendant in a prosecution for unlawful transportation. 3. Criminal law 37-Sending person to buy liquor from suspected seller held not entrapment.

Where prohibition agents had evidence that defendant was engaged in unlawful sale of liquor, the sending of a third person to him to buy liquor did not constitute an entrapment.

In Error to the District Court of the United States for the Southern Division of the Southern District of California; Wm. P. James, Judge.

Criminal prosecution by the United States against Louis H. Reyff, E. W. Frederick, and Harry Bigby. Judgment of conviction, and defendants bring error. Affirmed.

Edward A. O'Dea, of San Francisco, Cal., and R. G. Retallick, of Fresno, Cal., for appellants.

Joseph C. Burke, U. S. Atty., Mark L. Herron, Asst. U. S. Atty., and John R. Layng, Sp. Asst. U. S. Atty., all of Los Angeles, Cal.

ment, Kettle saw the defendants Reyff and Frederick, seated in the latter's automobile. He asked Frederick if he had the liquor there, and the latter replied: "Yes; it is in the rear of the car." Kettle directed Frederick to drive around to the garage, and said: "We will take it out there." Kettle counted out $100 and gave it to Frederick. When the car entered the garage, prohibition agents arrested Kettle and the defendants Reyff and Frederick. One of the agents asked Frederick where the case of liquor was, but he denied that he had any liquor. The rear compartment of the car was opened, and therefrom a sack containing the liquors was taken, which was introduced in evidence on the trial of the case. The defendant Frederick made timely application for the restoration to him of the liquor so taken, claiming it to be his own property, and that it had been unlawfully taken from his possession.

[1] The ruling of the court in denying the application for the return of the liquor and in admitting it in evidence is assigned as error. On behalf of the defendant Frederick it is contended that the liquor was his, that title had not passed to Kettle, and that the seizure thereof, without a search warrant, was made without authority of law. At the time when the automobile entered the garage the negotiations between Kettle and the defendants were no longer in the class of mere executory agreements. They had resulted in a sale whereby the right and title to the liquor had passed to the purchaser. The terms had been agreed upon and complied with. The purchase money had been paid, and nothing remained to be done but to deliver the property at the place agreed upon, and the property had been brought to that place, to be taken out of the automobile and placed upon the floor of the

GILBERT, Circuit Judge. The plaintiffs in error were convicted under an indictment which charged them with selling intoxicating liquors, with the unlawful possession of intoxicating liquors, and the unlawful transportation thereof.

At the instance of certain prohibition agents, one Kettle undertook to purchase certain intoxicating liquors, and arranged to have the delivery thereof made to him at a designated time and place. One of the agents furnished Kettle with $100 in bills. At the time and place fixed in the agree

336, 161 C. C. A. 344; Hatch v. Oil Co., 100 U. S. 124, 131, 25 L. Ed. 554; Hurwitz v. United States (C. C. A.) 299 F. 449.

[2] It may be conceded that the mere fact that the liquor was not the property of the defendant Frederick would not be determinative of the question of its admissibility in evidence, if the case were not one in which liquor had been taken from his dwelling without the aid of a search warrant. But the statute applicable here is section 26, title 2, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101382mm), which provides: "When the commissioner, his assistants, inspectors, or

*Rehearing denied January 5, 1925.

any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law."

Here, although the officers had not seen the liquor, they had knowledge that the defendants were in the act of transporting the same contrary to law. They were aware of the contract which Kettle had made for the purchase of the liquor. Before they seized it, they had obtained possession of the money that Frederick had received from Kettle, and upon his arrest had dropped upon the garage floor, and they had been in formed by Kettle that the liquor was in the rear of the car. All the circumstances indicated to the officers that the car had been brought into the garage for the purpose of delivering the liquor as prearranged.

A case in point is Ash v. United States (C. C. A.) 299 F. 277, where it was held that an officer may, if facts and circumstances patent to him are such as would reasonably lead him to believe that the law was being violated by unlawful transportation of intoxicating liquor, search an automobile, and seize the liquor, and arrest the person transporting the same, without a search warrant. Of like import is Milam v. United States (C. C. A.) 296 F. 629. So in Voorhies v. United States (C. C. A.) 299 F. 275, it was held that liquor will not be ordered returned, in the absence of a showing that defendant's possession thereof was lawful. There was no evidence to indicate, and no pretense was made in the present case, that the possession of the liquor by Frederick was lawful.

[3] No merit is found in the contention that the defendants were entrapped into the commission of an offense which otherwise they would not have committed. There is nothing in the case to indicate that the offi. cers of the government resorted to a device to induce innocent men to commit a crime. The officers had before them evidence that the defendant Bigby had the disposition to violate the law and was engaged in unlawfully selling intoxicating liquors. They had evidence that he had theretofore sold liquor to Kettle. All that they did was to induce Kettle to purchase more liquor from Bigby. The case does not come within the decisions of this and other courts wherein entrapment has been defined.

The judgment is affirmed.

JOHNSON, Commissioner of Immigration, v. TERTZAG.

Ex parte SOGHANALIAN. (Circuit Court of Appeals, First Circuit. November 5, 1924.)

No. 1682.

1. Aliens 54-Alien held entitled to admission as fugitive from religious persecution.

Uncontradicted evidence held to entitle an Armenian woman to admission as one seeking entry to avoid religious persecution.

2. Aliens 54-Failure to inform Immigrant of rights held denial of fair hearing.

one

Failure to inform an immigrant of her right to exemption from the literacy test as seeking admission to avoid religious persecution, or to consider such exemption, held a denial of a fair hearing, and also an error of law, which gives the courts jurisdiction. 3. Aliens 54-Immigration officials may not ignore essential provisions of statute.

Immigration officials may not ignore essential parts of the statutes they are administering, and it is as much their duty to admit aliens exempted from the general policy of exclusion as it is to exclude those falling within the excluded classes.

Appeal from the District Court of the United States for the District of Massachusetts; Elisha H. Brewster, Judge.

Petition of Jacob Tertzag, on behalf of Ossana Soghanalian, against John P. Johnson, Commissioner of Immigration, for writ of habeas corpus. From a decree granting the writ, respondent appeals. Affirmed.

John W. Schenck, Asst. U. S. Atty., of Boston, Mass. (Robert O. Harris, U. S. Atty., of Boston, Mass., on the brief), for appellant.

Jacob Tertzag, of Boston, Mass., pro se. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge. This is an appeal by the Commissioner of Immigration from a decree holding, on habeas corpus, that Ossana Soghanalian is entitled to admission to the United States as an alien Armenian fleeing to the United States to escape religious persecution.

Before taking up the merits, the record before us calls for disapproving comment. It covers 38 pages, most of which has no proper place in a record for this court. The real evidence covers 4 pages. The opinion of the District Court is printed twice. An affidavit of the alien's brother (not evidence) appears, with slight changes, three times. A large part of the residue consists of correspondence as to irrelevant procedural matters. But we search in vain to ascertain whether the alien was ordered deported to Armenia, her last domicile, or to Paris, or

to Marseilles, the port of immediate departure. Moreover, in the brief for the appellee, we find a statement that the alien testified before the District Court, but no transcript of her evidence. This is an unwarranted omission. This court should have before it the entire record upon which the District Court based its decision. There is no valid reason why records of cases coming from the Department of Immigration should not present, in orderly, succinct, and adequate form, the evidence and procedural records-and only the evidence and procedural records-upon which the judgment of this court must be based. This court should not be compelled to hunt through a confused and confusing mass of irrelevancies for the evidence and records which must delimit our duty.

The brief and cogent opinion of Judge Brewster in the District Court is as follows: "The applicant was born in Hadjin, Silesia, Turkey, 27 years ago. Upon arrival in this country on her way to her brother, a merchant in Binghamton, N. Y., she was detained, examined by a Board of Special Inquiry at Boston, was found to be unable to read or write in any language or dialect, and for that reason was excluded. Upon appeal the excluding decision was affirmed. "The applicant claims exemption from the provisions of the statute barring illiterates, for the reason that she was fleeing to this country to escape religious persecution. The right to claim such an exemption was not brought to her attention, and seems not to have been considered by the immigration authorities. Evidence was offered from which I find that the applicant was of the Christian religion; that she had left Syria with the United States as her destination; that she had been once deported by the Turks, and had been subjected to persecution by them; that she was obliged to leave her home in Hadjin to escape further persecution. If this phase of her case had been fairly considered, or if it had been brought to the attention of the applicant, her claim to exemption might well have been established. The failure to do either of these things constituted, in my opinion, a denial of that fair and impartial hearing to which an alien may be held to be entitled.

without contradiction, that her last permanent residence was Hadjin, Turkey, still under Turkish rule; that the Turks killed her father and mother, and killed or deported all the Christians in Hadjin; that she was seized and kept in a harem for 32 years, until she was saved by the Allied armies; that, "if the government of the United States sends me back, I will throw myself overboard, as I have no place to go."

On this point her brother testified, also without contradiction: "We were a big family; but the Turks killed them off, and now there is just myself and my sister left of the whole family."

It also appeared that her brother had been an American citizen since 1914; that he owned substantial property in Binghamton, N. Y., and would be fully responsible for his sister's support.

Yet in the face of this uncontradicted evidence the immigration officials excluded her on the ground of illiteracy. On that point she testified that, although she went to school about four years, "when we were deported by the Turks in 1916 to the deserts, and they killed my father and mother, we had gone through so much that I have forgotten all that I learned."

[2] The immigration officials utterly ignored the exemption found in 39 Stat. c. 29, § 3 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42891⁄4b), as follows:

"Provided that the following classes of persons shall be exempt from the operation of the illiteracy test, to wit: All aliens who shall prove to the satisfaction of the proper immigration officer or to the Secretary of Labor that they are seeking admission to the United States to avoid religious persecution in the country of their last permanent residence.

This was at least an error of law, which gives the courts jurisdiction. Gegiow v. Uhl, 239 U. S. 3, 9, 36 S. Ct. 2, 60 L. Ed. 114. If we view the conduct of this case somewhat more critically, it was also, as the District Court held, the denial of a fair and impartial hearing.

The case is, on the facts, radically different from United States v. Commissioner (C. C. A.) 288 F. 756, relied upon by the government, where it appears (see page 759)

[1] The evidence fully warranted the finding of the learned judge that the alien should have been admitted as a fugitive from religious persecution. She testified,

band, in the testimony before the board, had a word to say as to religious persecution in Roumania." This alien disclosed all essential facts before the board, making a plain case of fleeing from religious persecution.

[3] It is as much the duty of the immigration officials to admit aliens exempted from the general policy of exclusion as it is to exclude those falling within the excluded classes. Administrative officials may not ignore essential parts of the statutes they are administering.

This is a case to which the fundamental principle stated by the Supreme Court in Kwock Jan Fat v. White, 253 U. S. 454, 464, 40 S. Ct. 566, 570 (64 L. Ed. 1010) has peculiar and special application. That court there said, with reference to the power of the immigration officials:

"It is a power to be administered, not arbitrarily and secretly, but fairly and openly, under the restraints of the tradition

and principles of free government applica

race.

ble where the fundamental rights of men are involved, regardless of their origin or It is the province of the courts, in proceedings for review, within the limits amply defined in the cases cited, to prevent abuse of this extraordinary power, and this is possible only when a full record is preserved of the essentials on which the executive officers proceed to judgment."

The decree of the District Court is affirmed.

MANSOLILLI v. UNITED STATES. (Circuit Court of Appeals, First Circuit. November 5, 1924.)

No. 1772.

1. Criminal law 555-Determination by court that property not unlawfully seized held not erroneous, in view of conflicting evidence. Where defendant moved for return of property and suppression of evidence obtained, invoking Const. Amends. 4, 5, and called officers seizing property as witnesses, and testimony of officers and defendant's family was contradictory, trial court was not bound to find that testimony of officers was perjured, and did not err in finding that property was not unlawfully seized.

2. Criminal law

1169(5)—Introduction of incompetent evidence not error, where stricken out on court's order.

Admission of preliminary questions on trial for sending bombs through mail, as to another bomb, if incompetent, cannot be complained of, where it was stricken out on court's order, and jury was instructed to disregard it. 3. Indictment and information 180-Difference in names given complaining witness held of no importance.

In prosecution for sending bombs through mail, in violation of Penal Code, § 217 (Comp. St. § 10387), where it appeared one bomb was addressed to Grace L. and another to Gracie L., and in both counts of indictment name was Gracie L., difference in names was of no importance, in view of Judicial Code, § 269, as amended by Act Feb. 26, 1919 (Comp. St. Ann. Supp. 1919, § 1246).

Conviction war4. Criminal law 878 (2)· ranted on general verdict, though there was variance as to one count.

Where two counts of indictment charged sending of bombs through mail to Gracie L., in violation of Penal Code, § 217 (Comp. St. § 10387), and evidence was that bomb described in first count was addressed to Grace L., sentence was properly imposed on general verdict of guilty.

In Error to the District Court of the United States for the District of Massachusetts; James M. Morton, Jr., Judge.

Louis Mansolilli was convicted of sending bombs through the mail, and brings error. Affirmed.

Bernard J. Killion, of Boston, Mass. (Killion, Dimento & Mitchell and Charles Toye, all of Boston, Mass., on the brief), for

plaintiff in error.

Essex S. Abbott, Sp. Asst. U. S. Atty., of Boston, Mass. (Robert O. Harris, U. S. Atty., and Joseph V. Carroll, Sp. Asst. U. S. Atty., both of Boston, Mass., on the brief), for the United States.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

Mansolilli

was convicted of sending through the mail, in violation of section 217 of the Penal Code (Comp. St. § 10387), bombs on May 4, 1923, and July 13, 1923, to Mrs. Grace Lewis, 192 Shurtleff street, Chelsea.

The alleged errors, chiefly relied upon, grew out of the trial court's denial of the defendant's motions for the "return of property seized" and for the "suppression of evidence."

On July 16, 1923, three days after the second bomb was sent to Mrs. Lewis, two post office inspectors, accompanied by a Chelsea policeman, called at the defendant's house, and there talked with him at length concerning the bombs sent to Mrs. Lewis, and obtained from him materials like those which had been used in their manufacture and in packing them for mailing.

The defendant seasonably filed motions for the return of these materials and for the suppression of all evidence thus obtained, invoking the Fourth and Fifth Amendments. Before the beginning of the trial, the court, in the absence of the jury, heard evidence on these motions, and denied them. The defendant himself called the inspectors and the policeman who had visited him, and examined them at length as his own witnesses. The defendant, his wife, and his 12 year old son then took the stand, and

contradicted much of the evidence given by the inspectors and the policeman. In denying the motions, the court made the following findings:

"The evidence is in irreconcilable conflict. The testimony of the little boy corroborates that of the police officers as to the manner in which they approached the house, and tends distinctly to discredit the testimony of the defendant's wife on that point, which appears to be a fabrication. Of course, that greatly weakens confidence in the defendant's evidence. It seems probable that the officers, or some of them, talked to the defendant downstairs rather more roughly than they admitted, but in the main I accept their story of what took place. They have no such interest to misstate as the defendant or his family.

"I find that the papers and articles referred to in the defendant's motion were not obtained by duress or coercion, nor by improper or unconstitutional search and seizure. And I find and rule that they may be used in evidence if otherwise competent."

The trial then proceeded. The inspectors and the policeman, called by the government, testified before the jury substantially as they had testified before the court in the preliminary hearing. There was other evidence for the government. The defendant testified in his own behalf. The court instructed the jury to the effect that, without the evidence obtained by the officers at defendant's house, there was not enough to warrant conviction, and that he was to be acquitted by the jury if it found that this evidence was illegally obtained. And he resubmitted to the jury, in a careful and accurate charge, the question whether the evidence was obtained by the officers by coercive and intimidating methods, instructing them that, if they should find that the evidence was thus improperly obtained, they should disregard it and acquit the accused.

[1] We hold it plain that there was no infringement upon the defendant's constitutional rights. At the preliminary hearing, the defendant called the officers as witnesses in his own behalf. The trial court was not bound to believe the contradictory evidence thereafter adduced by the defendant and his wife and his son. He cannot be heard to say, after having himself called as witnesses the officers whose conduct was in question, that the trial court should, on the testimony of himself and his family, find that the testimony of these witnesses was perjured. The evidence was properly admitted

Moreover, the court by resubmitting the same question to the jury, scrupulously guarded every conceivable right of the defendant. The case falls well outside the doctrines illustrated in the leading cases dealing with rights secured by the Fourth and Fifth Amendments. Compare Ziang Sung Wan v. United States (October 13, 1924) 45 S. Ct. 1, 69 L. Ed. -; Amos v. United States, 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654; Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647; Bram v. United States, 168 U. S. 532, 18 S. Ct. 183, 42 L. Ed. 568; Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; Weeks v. United States, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. The other assignments of error may be briefly disposed of.

[2] The defendant complains of the admission of evidence as to an electric light bomb found in Mrs. Lewis' house on June 14, 1923, not charged to have been sent through the mail. The court allowed a few preliminary questions as to this bomb, thinking they might be a foundation for future evidence. But defendant's assignment itself shows that the court subsequently ordered the evidence stricken from the record, and instructed the jury to disregard it.

Assuming that the evidence was incompetent, which is far from clear (1 Wigmore Evidence, §§ 216, 305, 307; Commonwealth v. Robinson, 146 Mass. 571, 16 N. E. 452; Moore v. United States, 150 U. S. 57, 14 S. Ct. 26, 37 L. Ed. 996; People v. Harris, 136 N. Y. 423, 33 N. E. 65; Thompson v. United States, 144 Fed. 14, 75 C. C. A. 172, 7 Ann. Cas. 62; State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69; People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193), the defendant's rights were fully protected by the court's order that the evidence be stricken out and that the jury should disregard it.

[3] The twelfth assignment is highly technical and without merit. It appears that one of the bombs was addressed to Mrs. Grace Lewis and another to Mrs. Gracie Lewis. In both counts of the indictment the name was given Mrs. Gracie Lewis. The court instructed the jury that this difference in names was of no importance. This was plainly right. Judicial Code, § 269, as amended by Act Feb. 26, 1919, 40 Stat. 1181 (Comp. St. Ann. Supp. 1919, § 1246).

[4] The evidence was that the bomb de