NG CHOY FONG v. UNITED STATES. 1. CONSTITUTIONAL LAW TION OF INNOCENCE. No. 2864. 266-POISONS 2-DUE PROCESS-PRESUMP Act Cong. Feb. 9, 1909, c. 100, 35 Stat. 614, as amended by Act Jan. 17, 1914, c. 9, 38 Stat. 275, providing in section 2 (Comp. St. 1916, § 8801) that, if any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any opium, or derivative thereof, contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation or concealment of, such opium, knowing the same to have been imported contrary to law, shall be punished, and that whenever, on trial for a violation, the defendant is shown to have had possession of such opium, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the jury, and in section 3 (Comp. St. 1916, § 8801a) that on or after July 1, 1913, all smoking opium or opium prepared for smoking found in the United States shall be presumed to have been imported after the 1st day of April, 1909, on which date the importation of opium, save for medicinal purposes, etc., was forbidden, and that the burden of proof shall be on the accused to rebut the presumption, is not invalid, as violating Const. Amend. 5, declaring that no person shall be compelled in any criminal case to be a witness against himself, for the statute did not do away with the presumption of innocence, or require accused to take the stand, but merely declared a rule of evidence; the presumption declared not rebutting the inference of innocence. 2. CRIMINAL LAW 789(4) TRIAL-INSTRUCTIONS-REASONABLE Doubt. In a prosecution for violating Act Cong. Feb. 9, 1909, c. 100, as amended by Act Jan. 17, 1914, c. 9, §§ 2, 3, by concealing and facilitating the transportation and concealment of opium, where the court charged that accused was presumed to be innocent, and that such presumption continued to operate in her favor until overcome by evidence establishing her guilt beyond a reasonable doubt, but that such presumption should be considered with the statute declaring that possession of opium should be deemed to make out a prima facie case, etc., the instructions were not misleading, and could not have led the jury to believe that accused should be convicted without proof of guilt beyond a reasonable doubt. In Error to the District Court of the United States for the First Division of the Northern District of California; Maurice T. Dooling, Judge. Ng Choy Fong was convicted of violating Act Cong. Feb. 9, 1909, c. 100, as amended by Act Jan. 17, 1914, c. 9, by having concealed and facilitated the transportation and concealment of opium prepared for smoking purposes, and which she knew was imported into the United States contrary to law, and she brings error. Affirmed. George J. Hatfield, of San Francisco, Cal., for plaintiff in error. John W. Preston, U. S. Atty., and M. A. Thomas, Asst. U. S. Atty., both of San Francisco, Cal. Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District Judge. HUNT, Circuit Judge. Plaintiff in error, a Chinese woman, was convicted of violation of the act of Congress of February 9, 1909, as For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 245 F.-20 amended January 17, 1914, in having on August 12, 1915, concealed and facilitated the transportation and concealment of 660 five-tael cans of opium prepared for smoking purposes, which she well knew had been imported into the United States contrary to law. Under the writ of error she assails the constitutionality of the portions of sections 2 and 3 of the act of February 9, 1909, which provide that on and after July 1, 1913, all smoking opium found within the United States shall be presumed to have been imported after April 1, 1909, and that possession of such opium shall be deemed sufficient evidence to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the jury. We quote the material parts of the sections: "That after the first day of April, nineteen hundred and nine, it shall be unlawful to import into the United States opium in any form or any preparation or derivative thereof: Provided," etc. Sec. 2: "That if any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any opium or any preparation or derivative thereof contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such opium or preparation or derivative thereof after importation, knowing the same to have been imported contrary to law, such opium or preparation or derivative thereof shall be forfeited and shall be destroyed, and the offender shall be" punished, as provided. "Whenever, on trial for a violation of this section, the defendant is shown to have, or to have had possession of such opium or preparation or derivative thereof, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant shall explain the possession to the satisfaction of the jury." Sec. 3: "That on and after July first, nineteen hundred and thirteen, all smoking opium or opium prepared for smoking found within the United States shall be presumed to have been imported after the first day of April, nineteen hundred and nine, and the burden of proof shall be on the claimant or the accused to rebut such presumption." [1] The position taken is that the provisions referred to are in conflict with article 5 of the Amendments to the Constitution, in that they take away from a defendant the protection of the presumption of innocence, and that they "tend to compel the defendant to take the witness stand," whether or not she wishes to, at the peril of being convicted of a crime not proved against her. The question is presented by objection to the following instructions given by the lower court to the jury: "These provisions are made a part of the law because of the difficulty of proving guilty knowledge, and render it necessary only that the government prove that the defendants had, after July 1, 1913, smoking opium in their possession, when the presumption at once arises that it had been imported after April 1, 1909, and such possession imputes to the defendants a guilty knowledge sufficient to warrant a conviction unless the defendants shall explain such possession to your satisfaction. If, therefore, you are satisfied from the evidence beyond a reasonable doubt that defendants did have possession of this opium, and that it was smoking opium, then such possession will be sufficient to warrant a conviction, unless the defendants have explained such possession to your satisfaction." Examination of section 1 of the act above quoted (Comp. St. 1916, § 8800) shows that it is a general prohibition against importing opium. after Ápril 1, 1909, except for use in certain purposes not here relevant. Section 2 is a declaration that it is unlawful for any person to conceal or facilitate the concealment of opium which has been unlawfully imported, knowing it has been imported contrary to law. These are the substantive commands of the law with relation to the opium. But, in order to make the law as effective as might be, Congress, in its wisdom, meant to facilitate the practical administration of the statute by establishing these rules: (1) That if, upon trial, a person is shown to have had opium illegally imported in his possession, such possession shall be deemed enough evidence to authorize conviction unless such possessor shall explain the possession to the satisfaction of the jury. (2) That after July 1, 1913, all opium found shall be presumed to have been imported since April 1, 1909, and the accused must take it upon himself to rebut this presumption. There can be no doubt of the general power and authority of Congress to create a rule changing the burden of proceeding in a criminal. case, by providing that upon the production of certain facts it shall rest upon the defendant, and also to establish a rule of evidence making proof of one fact prima facie evidence of another related thereto. We must, of course, keep it in mind that the statute under examination has not attempted to make a rule that any inference or presumption of fact shall be conclusive at law. Wigmore on Evidence, § 1354. The statute has laid down a rule, not of substantive law at all, but merely of evidence. It does not in any way conclusively shut out all evidence from defendant; it has declared that, a prima facie case being made, the duty of producing evidence to avoid the effect of such prima facie case is upon the defendant. The great weight of authority confirms our belief that such a law is in no way in excess of power. Ogden v. Saunders, 12 Wheat. 213, 6 L. Ed. 606; Morgan v. State, 117 Ind. 569, 19 N. E. 154; Voght v. State, 124 Ind. 358, 24 N. E. 680; Com. v. Smith, 166 Mass. 370, 44 N. E. 503; Board v. Merchant, 103 N. Y. 143, 8 N. E. 484, 57 Am. St. Rep. 705; People v. Cannon, 139 N. Y. 32, 34 N. E. 759, 36 Am. St. Rep. 668; State v. Higgins, 13 R. I. 330, 43 Am. Rep. 26 note. [2] The court in its instructions expressly told the jury that defendant was presumed to be innocent, and that such presumption continued to operate in defendant's favor until it was overcome by evidence establishing guilt beyond a reasonable doubt, but that the presumption of innocence must be considered in connection with the statutory inferences read to the jury, and that the prosecution must establish every element of the crime charged beyond a reasonable doubt. These several instructions made no conflict with respect to the inferences from the evidence in the case. The jury, in effect, were told that the possession of the opium, if a fact, was enough to authorize conviction, unless the defendant went forward with evidence which accounted for such possession; and again, that the inference or presumption to be drawn was that the opium found was imported after a certain date unless the defendant went forward and overcame such inference. Thus, the duty of production of evidence could not have been misunderstood, while upon the whole case it was for the prosecution to establish guilt beyond a reasonable doubt. Wilson v. U. S., 162 U. S. 613, 16 Sup. Ct. 895, 40 L. Ed. 1090; Agnew v. U. S., 165 U. S. 36, 17 Sup. Ct.. 235, 41 L. Ed. 624; Dunlop v. U. S., 165 U. S. 486, 502, 17 Sup. Ct. 375, 41 L. Ed. 799; Greenleaf on Evidence (16th Ed.) §§ 32, 33, 34. The position of defendant at the close of the evidence for the prosecution was like that of any other defendant against whom a prima facie case is made. She could elect whether or not she would proceed, or stand upon her plea as against the evidence of the government. She chose to proceed; and, having failed to satisfy us that the verdict of guilty is violative of any of her rights, she must abide the result of the trial. The judgment is affirmed. GIN DOCK SUE v. UNITED STATES. * (Circuit Court of Appeals, Ninth Circuit. October 1, 1917.) No. 2858. 1. ALIENS 32(12)-DEPORTATION OF CHINESE-REVIEW OF PROCEEDINGS. A Chinese person's application for admission to the United States as a returning Chinese merchant was denied by the Commissioner of Immigration. An appeal to the Secretary of Labor was dismissed, and pending an application for reopening the case, he escaped from detention. Held that, on a subsequent proceeding for deportation, the mercantile status of the Chinese person could not be inquired into, having been determined by the judgment of the immigration officials, and not being open to review, unless the proceedings were unfair. 2. ALIENS 31-CHINESE PERSONS-PROCEEDINGS FOR DEPORTATION. Where a Chinese person, applying for admission to the country as a returning merchant, escaped from detention pending a petition to reopen his case, his application having been denied and admission refused, he may, though by reason of his escape he continued in the country for more than three years, be thereafter deported under Immigration Act Feb. 20, 1907, c. 1134, § 21, 34 Stat. 905 (Comp. St. 1916, § 4270); for though an alien, who has violated no law, except that he is in the country through an irregular entry, cannot after three years' residence be deported, unless charged with immorality, etc., the order denying such Chinese person's application for admission stood as a judgment requiring deportation throughout the period of his entire residence. 3. ALIENS 23(1)—DEPORTATION OF CHINESE PERSONS-DEFENSES. That a Chinese person sought to be deported was a merchant did not entitle him to remain, where his status as such was acquired subsequent to his entry into the country surreptitiously, by escaping from detention quarters after he had been denied permission to land. 4. ALIENS 23(1)—DEPORTATION OF CHINESE PERSONS-DEFENSES. A Chinese person, who resided in the United States for over six years, carrying on the business of a merchant, does not, by reason of his connection with an association of Chinese attached to the Chinese consulate, fall within the exemption of Act May 6, 1882, c. 126, § 13, 22 Stat. 61, as amended by Act July 5, 1884, c. 220, 23 Stat. 118 (Comp. St. 1916, § 4300), declaring that exclusion provisions shall not apply to diplomatic and other officers of the Chinese or other governments traveling upon the business of that government. 5. ALIENS 23(1)—DEPORTATION OF CHINESE-ATTENDANT OF CONSUL. A Chinese person, who became secretary of an association of Chinese persons attached to the Chinese consulate, who had no credentials from his government or passport from the minister at Washington, is not an For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes *Rehearing denied January 7, 1918. attendant of a consular officer, within Act Sept. 13, 1888, c. 1015, § 14, 25 Stat. 479 (Comp. St. 1916, § 4314), exempting Chinese diplomatic or consular officers and their attendants from provisions for the deportation of Chinese persons, though such Chinese person did some work for the consul and was a member of an advisory board; the association being benevolent in its nature and composed of Chinese from a particular province. Appeal from the District Court of the United States for the First Division of the Northern District of California; Maurice T. Dooling, Judge. Deportation proceedings by the United States against Gin Dock Sue. Deportation was directed by the commissioner, and a like order (230 Fed. 657) being entered, on appeal to the District Court, defendant appeals. Affirmed. From the stipulation of counsel, the following facts are gleaned: Appellant departed from the United States for China July 9, 1907. He returned July 14, 1908, and, under the name of Yeung Lung Soo, applied for admission as a returning Chinese merchant. His admission was denied by the commissioner of immigration at the port of San Francisco August 26, 1908. An appeal was taken from the commissioner's decision, which was dismissed by the honorable Secretary of Labor October 1, 1908. An application was made for a reopening of the case November 4, 1908, but on November 28, 1908, appellant escaped from his place of detention, and on December 8, 1908, the commissioner of immigration denied the application because of the fact that appellant had escaped from the place where detained and was a fugitive. The present proceeding was instituted before a United States commissioner, by complaint of an immigration inspector, seeking the appellant's deportation on the ground that he was then illegally within the United States. The commissioner ordered him to be deported, and on appeal to the District Court a like order was made and entered. The case is now here on appeal from the judgment of the District Court. George A. McGowan, of San Francisco, Cal., for appellant. John W. Preston, U. S. Atty., and Casper A. Ornbaun, Asst. U. S. Atty., both of San Francisco, Cal. Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District Judge. WOLVERTON, District Judge (after stating the facts as above). Three contentions are made opposing appellant's deportation: First, that he is a Chinese official, and on that account may not be excluded; second, that he has been engaged in business in California as a Chinese merchant for the past 61⁄2 years, and for that reason may not be excluded, although ordered deported for a prior irregular re-entry; and, third, that the court has jurisdiction, and should now inquire into the mercantile status of appellant for the year prior to his departure from the United States, it being claimed that his status was that of a merchant, and for that reason that he should not now be deported. We will consider these in their inverse order. [1] The obstacle in the way of our inquiry into the mercantile status of the appellant for the year prior to his departure from the United States is that the decision, order, and judgment of the commissioner of immigration are final, and a bar thereto, and preclude further action by the courts, unless the appellant has not been accorded a fair hearing; |