A-7049377.
Decided by Board July 28, 1954.
Subversive — Membership in Communist Party of the United States after entry — Evidence — Silence.
(1) Where it is found that the record as a whole presents a prima facie case of deportability, the unfavorable inference which follows from the respondent's privileged refusal to testify gives sufficient substance and probative value to the prima facie case to reach the conclusion that the respondent was a member of the Communist Party as charged.
(2) It is proper to draw an unfavorable inference from refusal to answer pertinent questions after a prima facie case of deportability has been established where such refusal is based upon a permissible claim of privilege as well as where privilege is not a factor. The prohibition against the drawing of an unfavorable inference from a claim of privilege arises in criminal proceedings, not in civil proceedings. The logical conclusion to be drawn from the silence of one who claims his answers may subject him to possible prosecution or punishment is that the testimony withheld would be adverse to the interests of the person claiming the privilege.
CHARGES:
Warrant: Act of October 16, 1918, as amended — After entry, member of organization that advocates overthrow of United States Government by force and violence.
Act of October 16, 1918, as amended — After entry, member of an organization that distributes written material advocating overthrow of the United States Government by force and violence.
Lodged: Act of October 16, 1918, as amended — After entry, member of the Communist Party of the United States.
BEFORE THE BOARD
Discussion: This is an appeal from an order of the special inquiry officer finding respondent deportable on the lodged charge set forth above. Respondent, a 50-year-old married female, a native of Russia and last a citizen of Canada, has been a resident of the United States since her admission for permanent residence in 1923. Alienage is conceded. Her deportation is sought under sections 1 and 4 of the act of October 16, 1918, as amended. This law provides for the deportation of an alien who is, or at any time after entry has been, a member of the Communist Party of the United States. The special inquiry officer found respondent had been a member of the Communist Party of the United States at Los Angeles, Calif., from the fall of 1935 to the fall of 1940. The sole issue presented by this appeal is whether the Service has borne the burden of establishing this membership by reasonable, substantial, and probative evidence.
To establish deportability, the Service relies upon the testimony of L----, V----, and R----, each admittedly a former Communist. No documentary evidence of membership has been presented. The witnesses mentioned each testified that respondent had been in attendance at closed meetings of the Communist Party and that they considered her a Communist Party member. No two witnesses testified for the same meeting. Each witness testified that he had never seen respondent pay dues to the Communist Party and that he had never seen respondent's membership card in the Communist Party.
At the hearing, respondent did not testify. On advice of counsel she refused to answer all questions on the ground that she was not required to establish the Government's case; as to questions concerning membership in the Communist Party, she, on advice of counsel, refused to answer on the additional ground of her privilege against self-incrimination; and as to questions concerning membership in the Communist Party after 1938, on the further ground that such information was not pertinent under the warrant charge which counsel believed involved membership only between 1935 and 1938.
We assume for the purpose of this proceeding that the claim was properly made, since the answer to questions concerning Communist Party membership might involve respondent in a prosecution for violation of the Smith Act ( Estes v. Potter, 183 F. (2d) 865 (C.A. 5) certiorari denied 340 U.S. 290).
Counsel urges that the Government witnesses must be held lacking in credibility because of their character; the fact that in his opinion their testimony is contradictory; and the fact that in his opinion material portions of their testimony have been established to be false. For all these reasons, he urges that the evidence of record is insufficient to support a finding of deportability.
We believe that the Government carried its burden of establishing deportability by reasonable, substantial, and probative evidence and will dismiss the appeal.
All the evidence of record and contentions of counsel have been carefully examined. We will not enter into a detailed analysis of these matters. We find that the positive evidence produced by respondent's witnesses and the results of the cross-examination of Service witnesses have weakened the case presented by the Service, but that the record as a whole presents a prima facie case of deportability on the lodged charge. We believe an unfavorable inference follows from respondent's privileged refusal to testify and that this inference gives such substance and probative value to the prima facie case that we reach the conclusion that the respondent was a member of the Communist Party as charged.
Counsel argues that it is improper to draw an unfavorable inference from the exercise of the privilege. He explains that in 1949 respondent had made a sworn statement denying membership in the Communist Party; that the Service, by proceeding with deportation proceedings, indicated its disbelief of her statement; that he therefore advised respondent that since the Service refused to believe her and would believe the witnesses they would produce, she would be indicted for perjury and would face prosecution in a "hectic hysterical time"; and that she should therefore not testify.
The statement made in 1949 is not a part of the record and will not be considered by us. The irrelevancy of the argument is clear. The privilege is a personal one. Respondent's own motive in claiming the privilege would be immaterial ( Ex parte Irvine, 74 Fed. 954, 965 (C.C., S.D. Ohio)). Moreover, we cannot attribute counsel's motive to the respondent and say that his motive was her motive. In fact, a claim of privilege should not be honored upon the theory advanced by counsel. Respondent's fear that an act she contemplated doing (testifying) might involve her in a possible prosecution for perjury under Federal laws could not form the proper basis for an invocation of the Fifth Amendment because the protection applies only to past acts and not to future acts ( United States v. Nadler, 105 F. Supp. 918 (N.D. Calif.); United States v. Kahriger, 345 U.S. 22, 32, 97 L. Ed. 754).
We believe it proper to draw the unfavorable inference from respondent's privileged refusal to answer pertinent questions after a prima facie case of deportability had been established. Silence where privilege is not a factor has been held to be evidence of a most persuasive character ( United States ex rel. Bilokumsky v. Tod, 263 U.S. 149). We believe the same unfavorable inference should be drawn where silence is based upon a permissible claim of privilege.
We do not believe our conclusion is violative of respondent's constitutional right. The prohibition against the drawing of an unfavorable inference from a claim of privilege arises in a criminal proceeding. The protection of the Fifth Amendment provides in pertinent part that "No person * * * shall be compelled in any criminal case to be a witness against himself." In order that the constitutional protection may not be impaired indirectly, Federal courts are prohibited from drawing an unfavorable inference from the claim of privilege in connection with the "trial of all persons charged with the commission of offenses against the United States" ( 18 U.S.C.A. 3481). No criminal charge is pending against the respondent. There is no indication that any is contemplated. The instant proceeding is civil in nature. It is not a trial for offenses against the United States; it is a deportation proceeding, one in which there is no right to remain silent, similar to that which exists in criminal proceedings. On the contrary, there is a duty upon the alien to speak ( United States ex rel Bilokumsky v. Tod, ( supra); see section 242 (b), Immigration and Nationality Act). This is not to say that the alien may not claim the privilege of silence when to answer will link her with the commission of a Federal offense. This she may do. We do not compel her to testify under such circumstances. However, we will draw the logical inference from this failure to comply with her duty. The drawing of an inference in this deportation proceeding will not in any way make respondent more subject to prosecution or diminish her rights in any criminal trial, if any, which may arise. Protection in any possible criminal prosecution remains in full vigor. The drawing of such inference from the silence and the existence of a prima facie case may result in the loss of the right to remain in the United States. This consequence is no more a denial of the constitutional immunity than the loss of employment which may follow a claim of privilege (See United States v. Field, dissenting opinon 193 F. (2d) 92, C.A. 2, certiorari dismissed on motion of Field's counsel, 342 U.S. 908; Christel v. Police Commissioner, 33 Calif. App. (2d) 564, 92 P. (2d) 419), or the prohibition placed upon a union's activity where it fails to file a non-Communist affidavit ( National Maritime Union of America v. Herzog, 78 F. Supp. 146, D.C., aff'd 334 U.S. 854).
We have spoken of the logical inference to be drawn from silence. The logical impact of evidence and not its admissibility is of course our concern in these administrative proceedings. What then is the logical conclusion to be drawn from the silence of one who claims his answer may subject him to possible prosecution or punishment for violation of a Federal law? Our reading of the authorities reveals the inference is that the testimony withheld would be adverse to the interests of the person claiming the privilege. This is the rule established in these cases in which the claim is a proper subject of comment ( Ikevas v. Curtis, 261 P. (2d) 684 (Supreme Court of Washington, Department II); Andrews v. Frye, 104 Mass. 234; Philipps v. Chase, 201 Mass. 444, 87 N.E. 755; Fross v. Wotton, 44 P. (2d) 350, Supreme Court, California; Caminetti v. United States, 242 U.S. 470, 493-5, 61 L. Ed. 442; Raffel v. United States, 271 U.S. 494, 70 L. Ed. 1054; see also United States v. St. Pierre, 128 F. (2d) 979, 981 (C.A. 2); Brown v. Walker, 161 U.S. 591, 605, 40 L. Ed. 819).
Dean Wigmore states that on the basis of logic, it is "impossible to deny that the very claim of privilege involves the confession of the fact * * *," and that "The inference (of guilt), as a matter of logic, is not only possible but inherent, and cannot be denied" (Evidence, vol. 3, 3d ed., sec. 2272, pp. 409-410). We also note that the Model Code of Evidence promulgated by the American Law Institute in 1942 recommends that even in a criminal case, the judge and jury should have the right to comment upon failure to testify and draw all reasonable inferences from such failure; and that several states permit such comment (Rule 291 (3), pp. 130-132).
Counsel argues that it is erroneous to draw an adverse inference from a refusal to testify because the person involved may be innocent and the refusal to testify may be based on grounds other than fear of admitting guilt. We do not believe that the possibility that an innocent person may claim the privilege need prevent our arriving at a logical conclusion which the facts of a particular case may require. We have pointed out that courts have not hesitated to draw unfavorable inferences from privileged silence although in each case, the argument that the claim may be made by the innocent was applicable. Furthermore, it can be pointed out that nonprivileged silence has been based on other grounds than fear of admitting guilt, yet adverse inferences have been drawn. So, in United States ex rel. Circella v. Neelly, 115 F. Supp. 615 (N.D. Ill), refusal to testify was on the ground that the alien was not required to be a Government witness, yet the court did not hesitate to draw the strongest inference from the fact of silence. In Schoeps v. Carmichael, 177 F. (2d) 391 (C.A. 9), refusal to testify was on an improper claim to the privilege of self-incrimination, yet the court drew an inference from the silence. (See also United States ex rel. Vajtauer v. Commissioner, 273 U.S. 103, 111; Matter of K----, A-5204481, 5 IN Dec. 175 (B.I.A., March 18, 1953); Matter of R----, A-9764935, 4 IN Dec. 720 (B.I.A., August 1, 1952). Inference must follow from the probabilities not the possibilities. To draw the inference in a case of nonprivileged silence where there is no likelihood that the alien has violated the law, and to refuse to do so in a privileged case where the alien by his actions had placed himself in such a position that he fears prosecution or punishment for violation of Federal laws, would be to treat the least deserving with the greatest solicitude. We do not believe any rule binds us to do this.
Moreover, in a deportation proceeding, deportability need not be established with certitude or beyond a reasonable doubt. It is sufficient that evidence on which a finding of deportability is based is reasonable, substantial, and probative (sec. 242 (b) (4), Immigration and Nationality Act). The possibility that the claim can be made by an innocent person would therefore not prevent the logical conclusion that where a prima facie case of deportability is established, in all probability, the claim is made by one who is not innocent.
From what has been said before, it is clear that an unfavorable inference is a logical one from the claim of privileged silence; that the use of such an unfavorable inference is permissible in many cases; and that we, in an administrative proceeding, should not reject a cogent, and persuasive fact because, in a criminal trial, the inference must be ignored.
Finally, we have clear precedents for drawing an unfavorable inference from silence on a claim of privilege in a deportation proceeding. In United States ex rel. Zapp et al. v. District Director, 120 F. (2d) 762 (C.A. 2), an alien who was under indictment for crime sought release in habeas corpus proceedings. One of his contentions was that since he was under indictment, and since the facts on which the criminal indictment was made and the deportation was sought were "essentially the same," and since he would be compelled to testify in the deportation proceedings to avoid having an unfavorable inference drawn, he would be required to incriminate himself with respect to accusations of crimes. The court answered that argument as follows:
We think it quite clear that the right of Congress to provide for the elimination of undesirable aliens is not hampered or limited by the fact that such aliens may have become entangled with other prohibitions of law. The proceedings in deportation matters are entirely apart from any proceeding to enforce the criminal laws and must proceed according to the statutes regulating them. * * * the privilege against self-incrimination may be operative in those [deportation] proceedings; but in that event the alien's silence may be evidence against him. [See also Kent v. United States, 157 F. (2d) 1 (C.A. 5), cert. denied 329 U.S. 785, but see (assumption of court for purpose of argument) United States ex rel. Vajtauer, (supra), p. 112; United States ex rel. Belfrage v. Shaughnessy, 212 F. (2d) 128 (C.A. 2).]Butterfield v. Zydok considered together with Carlson v. Landon, 342 U.S. 524, 96 L. Ed. 547, was a review of a habeas corpus proceeding. One Zydok had been arrested in deportation proceedings on a charge relating to membership in the Communist Party and had been denied release on bail. He brought a habeas corpus proceeding. At his hearing in the district court, he remained silent on a claim of privilege as to membership in the Communist Party and his activities therein. The district court ( Zydok v. Butterfield, 94 F. Supp. 338 (E.D. Michigan), made findings of fact that there was evidence of Communist Party membership, that he had failed to deny such membership, and that Zydok, "while under cross-examination by the Chief Assistant United States Attorney, was a consistently evasive witness and his evasive demeanor in testifying in relation to his Communistic activities convinces this Court that he is knowingly and wilfully participating in the Communist movement" (p. 341). The writ was denied. The Court of Appeals ( 187 F. (2d) 802 (C.A. 6)) criticized the drawing of an unfavorable inference from Zydok's refusal to testify on the claim of self-incrimination and reversed the district court. A majority of the Supreme Court found that the testimony of Zydok "justifies the district court's finding set out in the margin." In the margin is set forth the finding of fact we have previously quoted. This was considered by the three dissenting justices as drawing an unfavorable inference from the claim of privilege (pp. 554-555, 566).
The Supreme Court of the United States in Orloff v. Willoughby, 345 U.S. 83, 97 L. Ed. 842, has recently refused to ignore the fact that a claim of privilege was made. Orloff in habeas corpus proceedings sought his discharge from the army or in the alternative the granting to him of a commission as a medical officer. After Orloff's induction, under a special law relating to doctors, he applied for a commission and when asked concerning membership in the Communist Party of the United States or other organizations on the list designated by the Attorney General as subversive, he claimed his privilege against self-incrimination. The commission was denied him, but he was retained in the army and assigned to medical work in a noncommissioned status. The following statement from the majority opinion is appropriate:
Could this court, whatever power it might have in the matter, rationally hold that the President must, or even ought to, issue the certificate [commission] to one who will not answer whether he is a member of the Communist Party?
It is argued that Orloff is being punished for having claimed a privilege which the Constitution guarantees. No one, at least no one on this Court which has repeatedly sustained assertion by Communists of the privilege against self-incrimination, questions or doubts Orloff's right to withhold facts about himself on this ground. No one believes he can be punished for doing so. But the question is whether he can at the same time take the position that to tell the truth about himself would incriminate him and that even so the President must appoint him to a post of honor and trust. We have no hesitation in answering that question "no."United States ex rel. Belfrage v. Shaughnessy, ( supra), contains a statement criticizing the drawing of an unfavorable inference from silence on a claim of privilege. However, we believe that Belfrage is distinguishable. Belfrage, an alien, was held without bail pending deportation proceedings. Bail was refused by the immigration authorities on the ground that there was substantial danger that Belfrage would abscond or engage in activities inimical to the public welfare if admitted to bail. As some evidence of the reasonableness of its apprehensions, the Service listed, along with other reasons, the fact that Belfrage had invoked his constitutional privilege when called as a witness before congressional committees shortly before being arrested in deportation proceedings. The district court sustained the writ. On appeal, the circuit court affirmed. The circuit court stated that Belfrage's refusal to answer questions before the congressional committees was "no rational basis" for inferring that if admitted to bail there would be substantial danger that in the future the alien would abscond or engage in activities detrimental to the public welfare, and that the invocation of the Fifth Amendment was no ground for an inference of guilt or of criminal proclivities.
Detention of Belfrage could be justified only if reasonable grounds existed for the belief that his being at large would lead to certain undesirable situations. The question of his future conduct was before the court. It is in this context that we must view the court's criticism concerning the drawing of an inference from silence. In our case, respondent's future conduct is neither material nor in issue. The issue before us is as to past conduct and as to that, we have demonstrated that silence where a prima facie case exists is a rational basis for the inference that one who is silent conceals matters that are adverse to him.
The relation of Belfrage to our problem must also be considered in view of the following matters. Belfrage, cites as authority, Spector v. United States, 193 F. (2d) 1002 (C.A. 9), and Wigmore on Evidence, Third Edition, Vol. VIII, section 2251. Spector involved a habeas corpus proceeding. Spector and two others had been indicted for the crime of conspiracy to violate the Smith Act. They were jailed and were awaiting trial. The district court denied bond. Appeal was taken to the Court of Appeals which granted bond. Here again, future conduct was involved. Moreover, it is clear that the Court of Appeals considered a habeas corpus proceeding as a criminal case (see footnote 2, p. 1005 of the opinion). Since the case was considered a criminal one, the provisions of 18 U.S.C. 3481, ( supra), barring the making of an unfavorable inference from the failure to testify would apply. Furthermore, the Government attempted to justify the detention of Spector on the ground that he was under the control of the Communist Party and would do its will, absconding if necessary. The court pointed out that the Government offered no evidence that Spector was connected with the Communist Party, and that it was improper to draw an unfavorable inference from the mere allegation in the indictment. In the instant case, we have more than allegations, we have a prima facie case established by evidence. Thus, we distinguish Spector on the ground that it dealt with future conduct; it was a criminal case; and a prima facie case had not been established by the Government. The section from Wigmore cited by the court is a 15-page analysis of the pros and cons for continuing the privilege in criminal matters. We do not deem it particularly appropriate to the discussion of our problem. Finally, Belfrage makes no note of Zapp, ( supra), the direct pronouncement in the same circuit permitting the drawing of an unfavorable inference from a claim of privileged silence in a civil matter.
We believe that what we have said heretofore answers counsel's contention that no inference should be drawn from the claim of privilege. In view of our conclusion that a prima facie case exists and that respondent's refusal to answer questions concerning the lodged charge cloaks this prima facie case with substance and probity, we will not discuss counsel's many contentions although we have fully considered them.
We have not heretofore fully stated our position on the propriety of drawing an unfavorable inference from silence on a claim of privilege. The subject is one in which the courts of the different states have taken opposing views. There is language in Federal cases which considered without careful examination appears to support a view contrary to the position we have taken. In view of the effect these matters may have had upon the respondent in taking the position that she would not testify, we will afford her an opportunity to testify fully and freely as to matters pertinent to the lodged charge if she petitions for such privilege.
Order: It is ordered that the appeal be and the same is hereby dismissed.