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
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 stated, constitute error or deprive the plaintiff of due process of law in the subject hearing.
This Court is of the opinion that the findings and conclusions of the Special Inquiry Officer and those of the Board of Immigration Appeals are supported by substantial, reasonable and probative evidence. The facts and circumstances proven, together with the reasonable inferences which the fact finding officials were entitled to draw therefrom, clearly authorized if it did not compel the conclusion that the plaintiff was an alien who was voluntarily and actively a member of the Communist Party of the United States in each of the years specified. There is no evidence to indicate that plaintiff was anything less than a 'voluntary' member of the Communist Party at the times in question, and in such a situation the concept of 'nominal membership' can have no application.
The order of deportation before this Court is based upon findings and conclusions supported by competent and sufficient evidence adduced at a hearing conducted pursuant to law and in all respects consistent with the requirements of due process of law.
It is ordered, adjudged and decreed by the Court that the order of deportation entered by the defendant against the plaintiff, Harry Carlisle, be, and the same hereby is, affirmed.