Opposition Brief — Costanzo v. Tillinghast

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~ ALBERTO Costaxz0, ‘PETITIONER *

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Ayna C M. TnisoH ise, Gisew STaTEs

COMMISSIONER OF epoca caved

ON. PRTITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES orrourr COURT OF APPHALS FOR THE FIRST

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CITATIONS

Be Cases:

ri Bugajewitz v. Adams, 228 U. 8. 585.....-.....-.-.------ 6

: DiFilippo, In re (Cafara v. Tillinghast), 31 F. (2d) 384,

8

Gin Kato, Ex parte, 270 Fed. 348__.-....--------------- 8

Hughes v. Tropello, 296 Fed. 306__.-......-.---------- 8, 9, 10

Lauria v. United States, 271 Fed. 261, certiorari denied, 257

MeLeod v. Nagle, 48 F. (2d) 180..........-.-.-......... 7,

Pillise v. Smith, 46 F. (2d) 769.........-.-.-.-------.--

Ranieri v. Smith, 49 F. (2d) 537, certiorari denied, 284

Tillinghast v. Creswell ex rel. DiPierro, 54 F. (2d) 459.--_-- 5

Vajtauer v. Commissioner of Immigration, 273 U. 8. 103__. 1

Statutes:

Immigration Act of February 5, 1917, c. 29, Sec. 19; 39

Stat. 889, 890 (U. 8S. C., Title 8, Sec. 155)_-.._.----_--

General Laws of Rhode Island, 1923, Chap. 399, Sec. 6...

127350—32 (1)

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Guthe Supreme Court of the Gnited States

OctoseR TERM, 1932

No. 110

ALBERTO COSTANZO, PETITIONER

v. |

Anna ©. M. TruuinaHast, Unirep States ComM1s-

sioner of Immigration

‘ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPHALS FOR THE FIRST

CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The District Court rendered no opinion. The

majority and concurring opinions in the Circuit

Court of Appeals (R. 37, 41) are reported in 56 F.

(2d) 566.

JURISDICTION

The judgment sought to be reviewed was entered

February 25, 1932. (R. 42.) The petition for

certiorari was filed May 25, 1932. Although he

does not so state, petitioner presumably invokes the

jurisdiction of this Court under Section 240 (a) of

the Judicial Code as zmended by the Act of Febru-

ary 13, 1925.

(1)

2

QUESTIONS PRESENTED

If they may properly be considered, the petition

for certiorari presents the following questions:

1, Whether, under Section 19 of the Immigration

Act of 1917, an alien found managing a house of

prostitution must be taken into custody and de-

ported within five years after entry or whether

such arrest and deportation may be effected at any

time after entry.

2. Whether there was sufficient evidence to sup-

port the administrative finding that petitioner was

managing a house of prostitution.

STATUTE INVOLVED

Section 19 of the Immigration Act of February

5, 1917, c. 29, 39 Stat. 874, 889-890 (U.S. C., Title

8, Sec. 155), reads in part as follows:

That at any time within five years after

entry, any alien who at the time of entry was

a member of one or more of the classes ex-

cluded by law; * -* * any alien who

shall be found an inmate of or connected

with the management of a house of prosti-

tution or practicing prostitution after such

alien shall have entered the United States,

or who shall receive, share in, or derive

benefit from any part of the earnings of any

prostitute; any alien who manages or is em-

ployed by, in, or in connection with any

house of prostitution or music or dance hall

or other place of amusement or resort

habitually frequented by prostitutes, or

_ as

3

where prostitutes gather, or who in any way

assists any prostitute or protects or prom-

ises to protect from arrest any prosti-

tute; * * * shall, upon the warrant of

the Secretary of Labor, be taken into cus-

tody and deported: * * * Provided

further, That the provisions of this section,

with the exceptions hereinbefore noted,

shall be applicable to the classes of aliens

therein mentioned irrespective of the

time of their entry into the United States:

STATEMENT

Petitioner, a citizen of Italy, who entered this

country about 1905, was arrested on an immigra-

tion warrant dated March 16, 1926, which charged

him with being in the country unlawfully in that,

after entry, he was found managing a house of

prostitution. (R. 4, 11, 13, 24.) It appears from

petitioner’s testimony at the various hearings be-

fore the immigration authorities that he was born

in Italy and came to this country at the age of five.

He has never taken any steps to become a citizen.

(R. 9, 12, 13, 14, 18.) In 1916 or 1917 he was con-

victed of stealing a machine, for which he served

six months in jail. (R.14.) In December, 1927, he

was convicted in a State court in Rhode Island, fol-

lowing a plea of ‘‘nolo,’’ of the charge of ‘‘harbor-

ing for prostitution,’’ and was sentenced to three

years in prison, of which sentence he served six-

teen months and fourteen days, when he was

4

paroled. (R. 7-8, 14-15.) As the result of infor-

mation supplied by the judge who sentenced him,

an investigation, out of which the present charge

grew, was begun by the immigration authorities.

(R, 8.) Although petitioner denied that he was

running a house of prostitution, he admitted that

the premises were leased in his name, and that,

while he paid but $30.00 a month rent, he sub-

leased the premises for $60 a month to one Ritchie,

who, he claimed, ran the place, and was sentenced,

on account thereof, to two years in prison. (R. 15,

19, 21-22.) He also admitted that on one occasion

he took a gir] to this place in his car, knowing her

to be a prostitute. (R. 15-16, 19-20.) She ap-

parently remained there as one of the two inmates,

for three days later, when the place was raided by

the State police, she was still there. (R. 16, 20.)

Petitioner was also present at the time the house

was raided. (R. 16.) At least twice a week peti-

tioner was at the place to collect the ‘“‘rent’’ and to

bring ‘‘supplies.”’ (R. 19, 21-22.) While he was

serving his sentence for the State offense, peti-

tioner’s wife divorced him and was awarded the

eustody of their two children. (R. 17, 18.)

As a result of this testimony the immigration

authorities found that petitioner was managing a

house of prostitution, and on August 26, 1927,

issued a warrant for his deportation. (R. 24-26.)

Petitioner thereupon filed in the United States Dis-

trict Court for Massachusetts a petition for writ of

habeas corpus, which appears to have been based

principally upon the ground that the effect of de-

porting him would be to impose additional punish-

ment for the crime against the State of Rkode Is-

land which he had already expiated, and that de-

portation would consequently constitute cruel and

unusual punishment, in violation of the Eighth

Amendment. (R. 1-4.) A summons was then is-

sued to respondent to show cause why the writ

should not be granted. (R. 5.) After a hearing

the court dismissed the petition. (R. 5-6.) On

appeal its judgment was affirmed. (R. 42.)

ARGUMENT

Before di, cussing the questions which petitioner

seeks to present, it should be noted that the petition

and supporting brief do not eomply with the rules

of this Court, They contain no assignment of er-

rors and no reference to the statutory provision

supporting this Court’s jurisdiction. (Rules 12,

27, 38, par, 2.)

Furthermore, so fay as the record discloses,

neither of the two questions which petitioner now

urges were raised in the District Court or covered

in his assignment of errors filed in connection with

his appeal to the Cireuit Court of Appeals. (R. 33.)

The only questions discussed by that court were

whether a five-year period of limitation applied to

petitioner’s deportation, and also whether deporta-

tion would constitute cruel and unusual punish-

ment. The latter question is not discussed in the

petition and supporting brief, and evidently has

6

been abandoned as clearly without merit. (See

Bugajewitz v. Adams, 228 U. 8. 585, 591.)

2

The charge made against petitioner in the war-

rant of arrest (R. 11) and in the warrant for de-

portation (R. 26) was that he was found, after

entry, managing a house of prostitution. It was

not, as he assumes in his statement of the ques-

tions presented (Pet. p. 2), ‘‘harboring for pros-

titution,’’ the offense of which he was convicted in

the State court. Deportation was not based upon

that conviction. Of course, as a prerequisite to

deportation, an alien need not be convicted of any

offense if he is in fact found to be managing a

house of prostitution.

This Court has recently declined to review a

decision holding, as did the court below in the in-

stant case, that Section 19 of the Immigration Act

of 1917 (supra, p. 2) does not prescribe a five-

year period of limitation upon the deportation of

1 The record does not disclose the particular section of the

State statutes which petitioner was convicted of violating.

Section 6, Chap. 399, General Laws of Rhode Island, 1923,

makes it an offense punishable by imprisonment for not more

than five years “ for any person to secure a female for a house

of ill-fame, or to procure for a female a place as inmate of

a house of ill-fame, or by any promise * * * to cause,

induce, persuade or encourage a female to * * * be-

come an inmate of a house of ill-fame, or enter a place in

which prostitution is encouraged or allowed, or remain

therein as such inmate * * *.”

7

aliens falling within the class to which petitioner

was found to belong. Ranieri v. Smith, 49 F. (2d)

537 (C. C. A. Tth); No. 361, October Term, 1931,

certiorari denied October 26, 1931, 284 U. 8S. 657.

In that case the Government pointed out in its

brief in opposition that while time limitations

affecting deportability are expressly prescribed in

Section 19 as to certain classes of aliens, there is

none affecting those engaged in activities connected

with prostitution, and that the third proviso of the

section, which reads—

That the provisions of this section, with the

exceptions hereinbefore noted, shall be ap-

plicable to the classes of aliens therein

mentioned irrespective of the time of their

entry into the United States: * * *,

prevents the application of time limitations to

aliens of the class here involved. The Government’s

‘brief also referred to the decision of the Circuit

Court of Appeals for the Ninth Circuit in McLeod

v. Nagle, 48 F. (2d) 189, which dealt with a paral-

lel class of aliens and in which the court held that

the construction for which petitioner contends

would be contrary to commonly accepted gram-

matical rules, saying (p. 190):

* * * the beginning phrase, ‘‘at any time

within five years,’’ can not be carried over

to each of the succeeding clauses; each of

the latter must be modified only by the time

limit specifically stated therein, and, if no

time limit is expressed, then the section must

be interpreted to mean ‘‘at any time after

the entry of the alien into the United

Sta ”?

In addition to the McLeod case, the Government

cited the following cases as supporting the decision

in the Ranieri case: Pillise v. Smith, 46 F. (2d) 769,

771 (©. ©. A. Ith); In re DiFilippo (Cafara v.

Tillinghast), 31 F. (2d) 384 (Mass.), aff’d. 31 F.

(2d) 1009 (C. C. A. 1st) ; Lauria v. United States,

271 Fed. 261 (C. C. A. 2d), certiorari denied, 257

U. 8. 635; Ea parte Gin Kato, 270 Fed. 343 (W. D.

Wash.).

Since the denial of the petition for certiorari in

the Ranieri case two cases have been decided by the

Cireuit Court of Appeals for the First Circuit sus-

taining the Government’s position, the instant case

and Tillinghast v. Cresswell ex rel. Di Pierro, 54 F.

(2d) 459,’ which reversed a decision rendered by

the concurring judge in the instant case while

sitting in a District Court (45 F. (2d) 658). In

each of these cases the authorities are reviewed at

length and several additional decisions supporting

the Government’s view are cited which were not

referred to in the Government’s brief in the Ranieri

case. In both opinions the OCireuit Court of Ap-

peals stated that the only case reaching a contrary

conclusion which it found is Hughes v. Tropello,

*In this ease a petition for certiorari was denied by this

Court on May 31, 1932 (No. 980, October Term, 1931),

because the petition was not filed within the time provided

by law.

9

206 Fed. 306 (C. C, A. 3d). It is true that in that

case the Cireuit Court of Appeals for the Third

Oirenit stated, with reference to Section 19, that

‘the five-year limit therein fixed must prevail,

unless such limitation is removed by an exception

specified therein,’’ but it should be pointed out that

the Government in that court conceded in its brief

(pp. 9-10) that the applicable period of limitations

was five years, and addressed its argument to the

question whether, under Section 19, deportation

proceedings must not only be instituted but con-

cluded within the five-year period. The analysis

of the Tropello decision contained in the opinion

in the Di Pierro case leaves no doubt as to its

unsoundness upon the point involved in the instant

ease. It was decided in 1924, and was apparently

ignored by the various Circuit Courts of Appeals

which have since passed upon the question until the

decision of the Di Pierro case in 1931. Its influence

has been negligible, and even if it may be considered

as in conflict with the instant decision, we do not

think that the conflict requires the exercise by this

Court of its supervisory power at the present

time.’ Certiorari may, we submit, well await an-

other decision by the Circuit Court of Appeals for

the Third Circuit rendered in the absence of a con-

* The petitioner in the Ranieri case, supra, did not rely

upon the 7'ropello case as presenting a conflict of decisions

upon the question of the proper construction of Section 19

of the Immigration Act of 1917. The T’ropello case was

not discussed in the Government’s brief in opposition.

10

cession by the Government and in the light of the

numerous cases sustaining the Government’s posi-

tion which have been decided since the Tropello

case.

II

As stated above (supra, p. 5), the contention

that there was insufficient evidence to warrant the

immigration authorities in finding that petitioner

was managing a house of prostitution was not

raised in his assignment of errors in the court be-

low nor passed upon by that court.

The evidence has been summarized at pp. 3-4,

supra. Even if the question were now open, we

think the evidence was clearly sufficient to support

the order of deportation, particularly in view of

the rule expressed by this Court in Vajtawer v.

Commissioner of Immigration, 273 U.S. 103, 106—

Upon a collateral review in habeas cor-

pus proceedings, it is sufficient that there

was some evidence from which the conclu-

sion of the administrative tribunal could be

deduced and that it committed no error so

flagrant as to convince the court of the es-

sential unfairness of the trial. Tisi v. Tod,

supra [264 U. 8. 131, 133].

11

CONCLUSION

The case was correctly decided below, and we do

not think it presents any question requiring the

consideration of this Court at the present time.

The petition should be denied.

Respectfully submitted.

¥ Tuomas D. THACHER,

Solicitor General.

VY Nuaent Dopps,

- Assistant Attorney Gleneral.

/ Wuirney Norra SEYMOUR,

Special Assistant to the Attorney General.

Y Frank M. Parrisn,

/ W. Marvin Smita,

Attorneys.

JULY, 1932.

U.S. GOVERNMENT PRINTING OFFICE: 1932