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January 31, 1957

Harry CARLISLE, Plaintiff,
Herbert BROWNELL, Jr., Defendant

The opinion of the court was delivered by: RIZLEY

Plaintiff has been ordered deported from the United States as an alien, who, within the provisions of Section 22, Internal Security Act of 19550, *fn1" was a member of the Communist Party of the United States during certain specified years. The administrative proceedings resulting in the final order of deportation commenced on October 31, 1950, when plaintiff was arrested upon warrant of the Attorney General. The plaintiff was retained in custody until June, 1951, at which time he was released on bond which has been continued in force pending conclusion of this appeal.

The administrative proceedings in determination of plaintiff's states extended over a period exceeding two and one-half years. During such proceedings, a record in excess of thirteen hundred pages, exclusive of exhibits, was compiled; and, three different Special Inquiry Officers *fn2" were assigned to preside over the hearing at its various stages when the preceding officers were unavailable to complete the case. After the conclusion of the protracted hearing and on June 18, 1953, finding § of fact and conclusions were filed by the Special Inquiry Officer, determining that plaintiff was subject to deportation as an alien who had voluntarily been a member of the Communist Party during the periods from 1933 through 1938 and from 1946 through 1947, inclusive. The decision of the hearing officer was appealed to the Board of Immigration Appeals, which affirmed the findings and dismissed the appeal on September 4, 1953, in a 'final' administrative decision on the matter of plaintiff's deportation. The final administrative decision is subject to review before this Court within the limits established by law. *fn3"

 Plaintiff alludes to 'certain weaknesses in the character of the evidence relied upon by the (defendant)', but concedes that the record evidence is sufficient to support the administrative findings. The appeal is predicated upon the contention that plaintiff was not afforded due process of law by virtue of the following occurrences, which are alleged to have transpired during the protracted administrative hearing: (1) That new hearing officers were twice assigned to preside over the proceedings contrary to regulations of the Immigration and Naturalization Service; (2) That the hearing officers were not appointed, qualified or assigned to preside over the subject deportation hearing pursuant to the provisions of Section 11, Administrative Procedure Act of 1946; *fn4" (3) That certain material in the possession of defendant, or his agents, was not made available to plaintiff for purposes of impeachment of two of defendant's witnesses; and (4) That the hearing officer and the Board of Immigration Appeals failed to apply the proper standards in arriving at their determination, that plaintiff was a 'voluntary member of the Communist Party', in that no consideration was given to the concept of 'nominal membership', which form of membership is not embraced within the statute relied upon by the defendant in issuing the subject deportation order. *fn5"

 The defendant contends that the hearing afforded plaintiff conformed to all applicable law and regulations; and, if irregularities did in fact occur during the proceedings, they were harmless and without prejudicial effect upon plaintiff. Defendant concedes that the hearing before the Special Inquiry Officer was in fact achieved by proceedings from November 27, 1950, through December 14, 1950, presided over by Roy Waddell; proceedings from February 12, 1951, through June 27, 1951, presided over by Alfred E. Edgar, Jr.; and proceedings from January 13, 1953 through June 12, 1953, presided over by John Bartos. It is contended that each substitution of hearing officer was affected pursuant to applicable regulations of the Immigration and Naturalization Service.

 The record of the administrative proceedings involving this plaintiff discloses that the hearing opened on November 27, 1950, with Roy Waddell presiding. Testimony of the Government's witnesses Alva L. Pilliod and Donn E. Mire, relating to identification of plaintiff and establishment of the date and place of his entry into the United States was received. The witness John L. Leech, appeared and testified on direct examination relative to his knowledge of the plaintiff's activities and connection with the Communist Party during 1933 through 1935, inclusive. On December 14, 1950, the hearing was continued while the witness Leech was being crossexamined by plaintiff's counsel. When the hearing was resumed on February 12, 1951, Mr. Edgar was substituted as hearing officer for Mr. Waddell. The newly assigned hearing officer certified that he had read and familiarized himself with the record of the prior proceedings, 6 and stated that Mr. Waddell was not available to complete the case. A certificate, dated March 5, 1951, was subsequently filed in the record indicating that Mr. Waddell's appointment as hearing officer had expired during the continuance of the case and that Mr. Edgar had been substituted as hearing officer pursuant the pertinent regulation. *fn7" Mr. Edgar thereafter heard the cross-examination of Leech, the direct and cross-examination of the Government's witness Nat Honig, the testimony of plaintiff's witness, Alfred Gerisch, and the unsworn statement of the plaintiff. The hearing was closed on June 27, 1951.

 On January 13, 1953, the hearing was reopened pursuant to order of the Board of Immigration Appeals, dated October 8, 1952. Mr. Bartos was substituted at such time as hearing officer in the place of Mr. Edgar. Mr. Bartos stated for the record that he had familiarized himself with the prior proceedings, pursuant to the applicable regulations *fn8" and informed plaintiff's counsel that Mr. Edgar had been assigned duties, other than those of a hearing officer, during the period which intervened from July 17, 1951, when the original findings had been filed, and January 13, 1953, the date on which the hearing was reopened. Mr. Bartos thereafter heard the witness Nat Honig testify upon being recalled by the Government. He also heard the testimony of Martin Berkeley, Roy Marshall Huggins and Dr. Howard Wilson Bosworth, as well as a second unsworn statement by the plaintiff. The hearing was closed on June 12, 1953, with the hearing officer thereafter, on June 18, 1953, filing his findings and conclusions.

 A careful examination of the record of the administrative proceedings involving the plaintiff and consideration of the protracted nature of the hearing refutes the contention that the substitution of hearing officers was effected in disregard of the pertinent regulations governing procedure before the Immigration and Naturalization Service. The substitution of Mr. Edgar for Mr. Waddell was required by virtue of the expiration of the latter's term as hearing examiner, which fact is evidenced by the certificate executed by the District Director of the Service and introduced into the record by Mr. Edgar. There is nothing unreasonable in such a procedure and it cannot be said to be in derogation of the regulations of the Service. In like manner, the substitution of Mr. Bartos for Mr. Edgar resulted from the unavailability of the latter to serve as hearing officer due to assignment of other duties. Recognizing, as the Court must, that a period of nineteen months intervened from the time Mr. Edgar concluded the hearings and the time they were reopened by order of the Board of Immigration Appeals, it is not unreasonable that Mr. Edgar, though academically qualified and physically present in the district Office of the Service would be unavailable to complete the reopened hearing due to assignment of other duties of a different nature. Indeed, such was the situation in this case and the Court finds that the substitution of Mr. Bartos, in lieu of Mr. Edgar, as hearing officer was not contrary to the pertinent regulations.

 In any event, plaintiff throughout the course of his hearing before Mr. Edgar constantly attacked the qualifications of the hearing officer and as late in the proceedings as June 26, 1951, moved that Mr. Edgar disqualify himself as hearing officer in the matter. Had the motion been granted, the then applicable regulation *fn9" would seemingly not require commencement of the hearing de novo, but only that the successor familiarize himself with the prior proceedings. Such a situation would have produced the very circumstances which plaintiff now seeks to assert as error. The point is entirely without merit upon the record before this Court and the applicable regulations. Cf. Tom We Shung v. Brownell, 1953, 93 U.S.App.D.C. 32, 207 F.2d 132, reversed on other grds. at 1953, 346 U.S. 906, 74 S. Ct. 237, 98 L. Ed. 405; United States ex rel. Minuto v. Reimer, 2 Cir., 1936, 83 F.2d 166.

 The plaintiff's contention that the hearing officers, before whom the subject proceeding was had, were not appointed, qualified or assigned pursuant to Section 11, Administrative Procedure Act of 1946, 5 U.S.C.A. § 1010, is without a modicum of validity. The procedural provisions under which plaintiff's deportation hearing was conducted are set forth and analyzed in Marcello v. Bonds, 1955, 349 U.S. 302, 75 S. Ct. 757, 99 L. Ed. 1107, and require no further analysis in this action. It is sufficient to state that under the existing decisions nothing could be clearer than the fact that appointment, qualification and assignment of special inquiry officers were excepted from the provisions of Section 11 of the Administrative Procedure Act. Marcello v. Bonds, supra; Ocon v. Guercio, 9 Cir., 1956, 237 F.2d 177; Couto v. Shaughnessy, 2 Cir., 1955, 218 F.2d 758, certiorari denied 349 U.S. 952, 75 S. Ct. 879, 99 L. Ed. 1276; Marcello v. Ahrens, 5 Cir., 1953, 212 F.2d 830; Tsimounis v. Holland, 3 Cir., 1956, 228 F.2d 907.

 Plaintiff contends that material within the possession of the defendant, or his agents, pertinent to his deportation hearing was withheld from him by defendant and that the hearing officers erroneously refused to order and require production of such material upon his request therefor. The materials involved in this point are, for the most part, transcripts of testimony given by the witness Leech in prior deportation proceedings and other inquiries. The record indicates that the subject material was in fact made available to the plaintiff by the hearing officer and a continuance granted from February 12, 1951, to March 6, 1951, in order to permit the plaintiff to secure by purchase or perusal the material requested. On March 6, 1951, plaintiff's counsel advised the hearing officer that the requested material had not been obtained because of lack of funds. There was no showing of an attempt by plaintiff, or his counsel, to secure access to the material at the office of defendant, or his agents, and obtain copies of any portion thereof deemed material to this case. Apart from the lack of diligence by plaintiff and his counsel, the record fails to disclose the relevancy or materiality of the requested material. It was considered by plaintiff to be of significance upon the issue of the credibility of the witness Leech by virtue of alleged discrepancies between the testimony given in the instant case and that previously given. In this regard, the material could at the very best have provided evidence of a cumulative nature. This is true for the reason that the witness admitted from the witness stand that part of his prior testimony *fn10" had been erroneous. The witness also explained the reasons for such admitted inconsistencies in a manner not unreasonable. Twenty pages of cross-examination are devoted to an affidavit the witness executed in 1937, which contained information consistent with prior testimony given by the witness but inconsistent in one particular with the testimony given in this case -- upon a matter not in issue herein but upon a date. The conduct of the hearing, insofar as it pertains to the requests of plaintiff for production of the prior testimony of Leech, was not erroneous. The material was made available to plaintiff and, in any event, there is an insufficient showing in this record to permit the Court to find that such material was relevant to this case except insofar as it would have provided cumulative evidence of the fact that the defendant's witness had actually made the prior erroneous statements he admitted having made.

 What has just been said concerning the materials pertaining to the witness Leech is equally applicable to the materials concerning the witness Honig. And, for the same reasons, the hearing officer did not commit error in declining to require the defendant, or his agents, to furnish such information to the plaintiff. Cf. Jencks v. United States, 5 Cir., 1955, 226 F.2d 540, 553, certiorari granted 350 U.S. 980, 76 S. Ct. 467, 100 L. Ed. 849.

 The request for production of the pretrial statement of the Government witness Roy Marshall Huggins was denied by the hearing officer. The ruling was correct in light of the fact that no showing of relevancy or materiality was made, and for the further reason that it was not shown that the requested statement in any way was contradictory of the testimony of the witness given from the witness stand. Cf. Gordon v. United States, 1953, 344 U.S. 414, 73 S. Ct. 369, 97 L. Ed. 447.

 The rationale of decision in the case of Communist Party of United States v. Subversive Activities Control Board *fn11" has no application to the case before this Court for the reason that the facts which plaintiff sought to prove by means of the records of prior and different hearings; viz., that the witnesses Leech and Honig had made prior inconsistent statements, were admitted by such witnesses and, therefore, were before the triers of fact who held the sole responsibility for determining credibility of the witnesses. In such a situation, it would appear to be improper to attempt to discredit a witness by showing that he had made prior statements inconsistent with his testimony on the witness stand, at least until his attention has been specifically called to the former statements. In re Sawyer, D.C.E.D.Wis.1955, 129 F.Supp. 687. And, when the witness admits having made such prior and inconsistent statements, the record of such statements would be merely corroborative and cumulative evidence thereof.

 It cannot be said that the rulings of the hearing officers concerning the production of the prior records requested by plaintiff did not make such material available to him. But, even if the rulings be so construed as to constitute a refusal to compel production of the material for use by plaintiff, such a ruling would not, for the reasons above ...

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