A-4904219
Decided by the Board October 21, 1953
Communist Party of the United States — Membership after entry — Evidence — Credibility of witness.
(1) The uncontroverted testimony of a Government witness that among the Communist Party records he was entrusted with, there were records relating to the respondent for a period of 3 years and that he had transacted business that was purely the concern of the Communist Party with the respondent on many occasions is substantial and probative and leads to the conclusion that the respondent was a Communist Party member.
(2) The fact that a Government witness has been an undercover agent for the police force is no reflection upon his credibility in the absence of evidence that his reports on Communist Party activities over a period of years were malicious, without basis, or in error. The fact that such witness has appeared as a witness in many deportation proceedings does not necessarily require a finding that he is motivated by bias or a corrupt intention. Failure to produce reports made to the police department by the witness does not affect his credibility in the absence of evidence that such reports would contradict his testimony.
(3) Failure to produce reports of Communist Party activity made by the Government witness to the police department is not a violation of the best evidence rule where the sole issue is whether the respondent was a Communist Party member. Such reports did not create Communist Party membership but reflected the witness' report of such membership; they were not used by the witness or the Government in the hearing; and there was no showing that they were relevant for the purpose of impeachment.
(4) While the Government may have been able to establish its case in more than one way, if it satisfactorily establishes the case in one way, no further evidence is necessary and no unfavorable inference should be drawn because it did not proceed in another manner.
(5) The admission of the witness' testimony regarding existence of membership and registration cards concerning the respondent is not reversible error since the conclusion as to membership is based upon the existence of the cards among cards relating to Communist Party members; the testimony that the respondent engaged in transactions concerning dues stamps of the Communist Party; and the inference to be drawn from the respondent's silence.
(6) There is no prejudicial error in the failure of the special inquiry officer to discuss in his order the testimony of other witnesses or to comment on the favorable evidence of record, although it is desirable for him to indicate that he has considered the evidence of the defense.
CHARGE:
Warrant: Act of 1918 — An alien who was a member of the Communist Party of the United States after entry.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer requiring respondent's deportation on the ground stated above.
Respondent is an alien, a native and citizen of Japan. The sole issue is whether at any time after 1922, when he entered the United States for permanent residence, he became a member of the Communist Party. The special inquiry officer found membership in the Communist Party established in 1936, 1937, and 1938. We concur in this finding.
The special inquiry officer found membership established on the basis of uncontroverted testimony given by Government witness K----, a retired Los Angeles police officer who, from 1928 to 1939, had been a member of the Communist Party of the United States reporting on party activity to his superiors in the police department.
Testimony of two other Government witnesses will be discussed later.
K---- testified: His wife was the dues secretary for the citywide Communist Party organization. It was her duty to sell Communist Party dues stamps to units of the Communist Party which made up the local organization. On some 25 to 30 occasions, he had accompanied her to the address where respondent, his mother, and a Mr. A---- lived. These visits were for the purpose of selling dues stamps to Mr. A---- who was the dues secretary of a Communist Party unit. On some 15 occasions Mr. A---- had been absent, but the respondent, who was present, had taken care of the transaction involving the transfer of Communist Party dues stamps. Furthermore, during the period in question, he (the witness) had been an official of the party with a duty of maintaining membership records. In 1936, he had seen a membership card relating to the respondent, and in 1937 and 1938, while in charge of registration cards which brought Communist Party membership status up to date, had seen a card relating to the respondent.
At the outset of the hearing, respondent refused to testify or be sworn on advice of counsel, on the ground that the burden of proof was on the Government and that the burden must be established otherwise than through the testimony of the respondent. After the Government had produced all its evidence establishing the respondent was an alien and had been a member of the Communist Party, he was questioned as to membership in the Communist Party and on other relevant matters. He refused to answer on advice of counsel that the questions were irrelevant and immaterial and that the Government had the burden of proof.
Contentions of counsel will now be considered. It is urged that evidence establishing membership is not reasonable, substantial and probative. We believe it clear that K----'s testimony that among the Communist Party records he was entrusted with, there were records relating to the respondent for a period of 3 years, and the testimony that he had transacted business that was purely the concern of the Communist Party with the respondent on many occasions, is substantial and probative and reasonably leads to the conclusion that respondent was a Communist Party member.
Counsel urges that the business transacted by K---- and his wife with the respondent was in the absence of the person who regularly handled the matter and was in the nature of a personal favor to the latter so that there is, therefore, no reason to conclude that he was a Communist and no reason to believe that the respondent had knowledge of the purpose of the transactions. We note that the respondent himself has not advanced the explanation under oath. Respondent is silent; we may therefore infer that had he testified on this issue, he would have furnished evidence unfavorable to himself ( Matter of D----, A-5390614, 4 IN Dec. 578; Matter of K----, A-5204481, Int. Dec. No. 427). Furthermore, K----, as an official of the Communist Party, had the Communist Party membership records relating to respondent in his possession. The number of transactions which occurred makes the claim difficult to accept. The contention is not supported by the record.
Counsel contends K---- is not credible. This claim is based upon three grounds; the fact that K----, over a period of 11 years, acted as an undercover agent for Los Angeles police; the fact that K---- has appeared as a paid Government witness in a number of deportation proceedings; and because neither K---- nor the Service produced reports concerning Communist Party activities which K---- testified he had furnished his superiors in the Los Angeles police department.
The fact that K---- has been an undercover agent for the police force is of itself no reflection upon his credibility. In the absence of evidence that in the many years he reported on Communist Party activity, his reports were malicious, without basis, or in error, we do not find credibility impaired by his occupation.
It is true that K---- has appeared as a witness in many deportation proceedings and has been paid expenses or fees as an expert witness. This fact does not necessarily require a finding that he is motivated by bias or a corrupt intention (Wigmore: Evidence, Third Edition, sec. 961). We have, however, taken it into consideration in evaluating his evidence. While our conclusion is not based upon this reasoning, we cannot refrain from stating that from the number of deportation cases involved where K---- appeared as a witness and the absence of indication that he was in error in any of these cases, it is not illogical to assume that his testimony in the past has been truthful and not manufactured for the purpose of earning a witness' fee. Be that as it may, we find K---- was given a searching and prolonged cross-examination and nothing was revealed to indicate that he has testified falsely, or in error, or maliciously, or on the basis of superficial knowledge.
The last ground advanced by counsel for questioning K----'s credibility, i.e., the failure to produce certain reports relating to Communist Party membership will be considered with counsel's contention that by permitting K---- to testify concerning these reports, there was a violation of the best evidence rule.
K---- testified that while he was an undercover agent for the Los Angeles police, and a member of the Communist Party, he submitted reports to his superiors in the police department concerning the membership and activities of the Communist Party. He stated that he had furnished lists of Communist Party members and forms on which he or his wife had entered information appearing on official Communist Party membership and registration cards. Such matter was last in the hands of the police department; there is no indication that either K---- or the Service have copies of these documents and reports. K---- testified that in giving testimony in the instant proceedings, he had no notes available and had not relied upon any written matter. He testified purely from recollection. Nothing in K----'s testimony indicates a contradiction in the reports made to the police department and his present testimony. Neither K---- nor the Service made use of these reports at the hearing and neither offered to produce them in evidence. Counsel's request addressed to the special inquiry officer for the issuance of a subpoena requiring the police department to furnish these records was denied. Counsel contends that the best evidence of the existence of membership records relating to the respondent would be the production of the reports mentioned by K----. He urges that failure to produce these records is a violation of the best evidence rule and that such failure should give rise to the inference that the reports would contradict K----'s testimony that respondent was a Communist Party member.
We do not believe that a violation of the best evidence rule is presented. The issue here is whether respondent was a Communist Party member. The reports in question did not create Communist Party membership; they reflected the witness' report of such membership. The reports would be the best evidence of whether K---- made reports; they are not the best evidence of whether respondent was a Communist Party member. Furthermore, the existence or nonexistence of the reports could not be considered substantive evidence, but would merely go to corroborate or impeach the witness ( Ryan v. United Parcel Service, Inc., 108 F. Supp. 775 (S.D.N.Y.)). Manifestly, a collateral matter at best exists and since this is so, the best evidence rule does not apply ( United States v. Aluminum Co. of America, 35 F. Supp. 820, 827, S.D.N.Y.).
Nor do we believe that an unfavorable inference must be drawn from the fact that these records were not produced at the hearing and a subpoena was not issued for their production. Neither K---- nor the Service made any use of the records at the hearing. K---- did not testify that any reports he had furnished previously would contradict his testimony. There is a complete lack of showing by counsel that the papers were relevant for the purpose of impeachment. It is well settled that where a witness does not use his notes or memoranda at a hearing, an opposing party has no absolute right to have them produced and to inspect them (matter of K---- H---- C----, A-6665545, Int. Dec. No. 464, p. 4, and cases there cited to footnote 5). If this rule is applicable to a case where the documents are in possession of a party to the action, it would appear to apply with equal validity to a situation where the documents sought are in the possession of a third person not a party to the action. Since this is so, we need not discuss whether these reports which were made by a police official in the line of his duty could properly be made the subject of a subpoena or an order. We believe that while the Service may have been able to establish its case in more than one way, if it did so satisfactorily in the way it chose, that is sufficient. It need not produce further evidence, and no unfavorable inference should be drawn because it did not proceed in another manner. Since counsel was not entitled to the reports and they were not in the possession of K---- or the Service, an unfavorable inference as to K----'s credibility because they were not produced is not justified.
Counsel objects that K----'s testimony as to the existence of membership and registration cards concerning the respondent constitutes the admission of hearsay and is reversible error. K----'s testimony that the card existed is, of course, not hearsay. To consider Communist Party membership established merely because the card said so would be to rely upon hearsay; we have not done this. While it is true that hearsay evidence is admissible in administrative proceedings and if found of a probative nature may be relied upon, we do not believe that consideration of the card in the instant case was reliance upon hearsay. Our conclusion as to membership is not based primarily upon what the card said; it is based upon the existence of this card among cards relating to Communist Party members; the testimony that respondent engaged in transactions concerning dues stamps of the Communist Party; and the inference to be drawn from the respondent's silence. The existence of the card is therefore circumstantial evidence of the fact of Communist Party membership (see Braswell v. United States, 200 F. (2d) 597, C.A. 5, p. 599).
We have mentioned the fact that two additional Government witnesses testified. They are a housewife and her husband. They testified that they had been members of the Communist Party from 1936 to 1938, and that they had met the respondent at meetings they felt were membership meetings of the Communist Party. One of these witnesses testified that some of the meetings were restricted to only members of the Communist Party and that the respondent appeared at such restricted meetings, and that only at meetings did this witness meet the respondent. In his order the special inquiry officer did not discuss the testimony of these two witnesses. Whether he found them not credible or their testimony not substantial, or whether he felt that the testimony of K---- was so strong that no further evidence was needed, we have no way of knowing. Counsel contends that there was error in failing to comment upon their testimony. We believe it would have been desirable to comment upon their testimony but find no prejudicial error in the failure to do so. Their testimony does not help respondent. For although the female witness appeared timid and easily confused, her belief that the meetings she attended were those of the Communist Party stands forth clearly; and her husband's testimony that he met the respondent only at meetings, some of which he considered restricted to Communist Party members only, is significant.
Counsel contends that there was error in the fact that the special inquiry officer failed to comment on the favorable evidence of record. Here again, while it would have been desirable for the special inquiry officer to indicate that he had considered the evidence of the defense (and we are certain he did so), we find no prejudicial error committed. The testimony of the two defense witnesses (and the offer of testimony which would be forthcoming from additional defense witnesses) is purely in the nature of character evidence; one of the witnesses did not even know the respondent during the period from 1936 to 1939. Neither was a member of the Communist Party. Their testimony cannot be considered as evidence that the respondent did or did not join the Communist Party, for here we are not presented with a situation where membership is sought to be established by inferences drawn from conduct or because of the lack of credibility of a person. Membership is found from testimony establishing that fact.
The supplemental brief submitted by counsel has been considered and the case cited by him concerning use of hearsay evidence which was contradicted by credible evidence is not applicable, for here the only credible evidence establishes membership in the Communist Party.
The constitutional objections raised by counsel are not within our jurisdiction ( Matter of L----,) A-4942707, 4 IN Dec. 556.
We add one further thought. We have received and considered many letters from people in various walks of life in the community where respondent resides. Writers of these letters do not believe respondent is now or has ever been a Communist. Their letters characterize him as an individual of honor, feeling, integrity and one never known to have harmed his country in any way. Some of these letters come from individuals who knew him during the time he is charged with membership in the Communist Party. The sincerity of these letters causes us to restate the sole issue before us. This is, was the respondent at any time after 1922 a voluntary member of the Communist Party of the United States? We found the record established membership. This is all we decide. His excellence of character, lack of overt action against the United States; and even present hostility to Communism, if such exists; or loyalty to the United States, if that be demonstrated; and discontinuance of membership, if such is the fact, cannot prevent a finding of deportability. These factors become pertinent only when the alien asks that his deportation be suspended. This is the mandate of Congress ( Latva v. Nicolls, 106 F. Supp. 658, D.C. Mass.; Matter of S----, A-9635850, Int. Dec. No. 417).
No application for discretionary relief is before us. The appeal must be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.