56131/448
Decided by the Board February 6, 1943.
Evidence — Admissibility of statement in preliminary investigation — Prostitution — Assisting a prostitute.
1. A statement made by an alien in a preliminary investigation that was neither signed nor offered to the alien for his signature, as required by section 150.1 (c) and (d), title 8, Code of Federal Regulations, is not admissible in evidence in a deportation hearing notwithstanding that a police officer, who was present when the statement was made, testified that the alien made the statement attributed to him.
2. An alien who lives as man and wife with a prostitute and does not share the earnings that she derives from the trade or business of prostitution is not assisting a prostitute within the meaning of section 19 of the 1917 act.
CHARGES:
Warrant: Act of 1917 — Found managing a house of prostitution, and assisting a prostitute and sharing in her earnings.
Mr. Louis B. Traycik, of Detroit, Mich., for the respondent.
Mr. Leon Ulman, Board attorney-examiner.
STATEMENT OF THE CASE: This record relates to a native and citizen of Mexico, 40 years of age, single. He has resided in the United States since October 8, 1913. The presiding inspector has found the respondent subject to deportation on the charge above specified. The district director and the Central Office concur.
DISCUSSION: The Government's case is predicated on a statement by the alien made to an investigating inspector prior to the issuance of the warrant of arrest, and on the testimony of a local police officer to the effect that he was present when the respondent made the statement and that the respondent testified to the facts recorded in the statement. We are of the opinion that [the statement] was improperly received in evidence. Without consideration of the facts there set forth, there is no evidence to sustain the charge. Although at the hearing the respondent gave testimony contradicting the statements made during the investigation, that fact alone does not warrant its admission. Section 150.6 (i), title 8, Code of Federal Regulations, provides that a recorded statement made by an alien during an investigation may be received in evidence only if the maker of such statement gives contradictory testimony. Section 150.1 (c), (d) provides that the investigating inspector in obtaining a "recorded statement," that is a statement "taken down in writing," must seek by specific request to obtain the statement over the signature of the maker. When section 150.6 (i) is fairly read in conjunction with section 150.1 (c) (d), it is such a "recorded statement," so safeguarded, that is permitted as evidence under section 150.6 (i) when the maker of the statement gives contradictory testimony at the hearing. The statement received and considered as evidence herein was not signed by the respondent; and there is no showing that he was asked to sign, or that being asked he refused. The testimony of the local police officer is clearly of no significance on the question of the statement's reception. We find that the use of the statement as affirmative, probative evidence was error. The testimony of the police officer was admissible for purposes of impeachment. He testified to no facts of his own knowledge that might sustain the charge.
However, even if we assume the admissibility of the statement of the respondent, the charge is not sustained. The respondent there stated that he lived with a woman, not his wife, from 1928-38, and that during this period he obtained his livelihood by gambling. As the respondent put it "she was just my woman." He assisted her when she was ill and purchased clothes for her on occasions. It is true that the woman was a prostitute and that with the proceeds of her trade, she contributed to their joint expenses. However, the respondent testified that on no occasion did he directly receive the earnings of prostitution. The facts are similar to those in Ex parte Abeldano, 11 F. Supp. 1021, where the charge was held not sustained. In that case the alien lived with a prostitute, drove her to places where she practiced prostitution, but did not participate or benefit by her earnings except indirectly in jointly contributing to the payment of the rent of a room jointly occupied by them. The court said:
The Immigration Act in question does not apply or extend to circumstances where the relations of the alien with prostitutes or places of prostitution are personal and private as distinguished from public, and further are not connected with the promotion of the trade or business of prostitution as such ( Nagle v. Eizaguirre, 41 F. 2d 735; United States ex rel. Louros v. Lindsay, 51 F.2d 303).
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Mexico;
(2) That the respondent last entered the United States on October 8, 1913, and was admitted for permanent residence;
(3) That the respondent has not been found managing a house of prostitution, assisting a prostitute, or receiving, sharing in, or deriving benefit from the earnings of a prostitute.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 19 of the Immigration Act of 1917, the respondent is not subject to deportation on the ground that he has been found managing a house of prostitution, assisting a prostitute, or receiving, sharing in, or deriving benefit from the earnings of a prostitute.
ORDER: It is ordered that the warrant of arrest be canceled and the proceedings dismissed.