# Opposition Brief — Costanzo v. Tillinghast > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0250%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1932 - **Citation:** 287 U.S. 341 ## Text we a “ a te a eee ~ P > ~ , . + ae Ss * - «si we X “ « dime Gt _ 3 - 3 . te « y aN fe N oO, 1 10 % ’ a po hoe , “ oy ~ “ ny - ~ — naan — Yo. 4 he meso . relat, A ‘BRIEF FOR os celeste IN OPPOSITION é =I $ oe g ' ' ' ' ' ' ' ' ' ' ' ' ' ‘ ' t ' 1 ' ' ' ' ' ' ' ' ' ‘ ' ' ' ' ' ' ' ’ ' ' ' ' moo bt te 9 5 é 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) % Sere? Xd en Rie ne SS een ss Chae aoe Spee Pas ig LF RE NEED Ge a « Li Soe wd 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0250%3A4. Public record. Not legal advice.