carefully considered and found not to be convincing. The theme of
the government's argument appears to be that to let deportable
aliens roam the country unsupervised would create a very
dangerous situation. The Court is of the same opinion. As the
previous memorandum indicated, Congress quite correctly gave the
Attorney General power to make certain of the alien's whereabouts
at all times. To this end, under the statute here considered, the
Attorney General could properly ask, and enforce his right to
receive answers to, questions as to the alien's place of
residence, whether he owns his home or rents, where he works and
how long he has worked there, whether he is married and lives
with his wife, and an endless list of inquiries along the same
line. This power is quite sufficient to ensure that the alien
will not be without supervision. To hold that the statute
intended to give an official the unlimited right to subject a man
to criminal penalties for failure to answer absolutely any
question the official may decide to ask would raise very serious
constitutional questions. The Court accordingly reiterates that
the power given to the Attorney General by the statute in
question is to enforce his right to question a deportable alien
to make certain that the latter is holding himself available for
The defendant's motion asks that the Court now examine the
questions set forth in the indictment, and dismiss the indictment
for the reason that it is apparent that none of them is related
to his availability for deportation. Although there is no
authority under this particular section, such a procedure is
dictated by analogous situations in other fields. Thus it is the
duty of the judge to rule on whether or not the privilege against
self-incrimination has been properly claimed, and "To sustain the
privilege, it need only be evident from the implications of the
question, in the setting in which it is asked, that a responsive
answer to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclosure could
result", Hoffman v. United States, 1950, 341 U.S. 479, 489, 71
S.Ct. 814, 818, 95 L.Ed. 1118; quoted, Emspak v. United States,
1954, 349 U.S. 190, 199, 75 S.Ct. 687, 99 L.Ed. 997. And in a
prosecution for perjury, it is clear that the materiality of the
questions asked is a question of law for the court, Sinclair v.
United States, 1929, 279 U.S. 263, 298, 49 S.Ct. 268, 73 L.Ed.
692; United States v. Orman, 3 Cir., 1953, 207 F.2d 148, 155, and
that materiality "should appear on the face of the indictment",
Markham v. United States, 1895, 160 U.S. 319, 325, 16 S.Ct. 288,
291, 40 L.Ed. 441. Where the questions are not relevant on their
face, but there is any probability that they could be shown to be
relevant, it is proper to give the government an opportunity to
make some sort of showing on the question. Bowers v. United
States, 1953, 92 U.S.App.D.C. 79, 202 F.2d 447, 449; United
States v. Orman, supra. However, where it appears from the
indictment that the questions alleged are not even probably
material, the indictment should be dismissed. United States v.
Garvett, D.C.E.D.Mich. 1940, 35 F. Supp. 644, 646; United States
v. Seymour, D.C.Neb. 1931, 50 F.2d 930, 940; United States v.
Cameron, D.C.Ariz. 1922, 282 F. 684, 692. Where it is perfectly
apparent to the trial judge from the face of the indictment that
the questions set forth are irrelevant, the defendant will not be
exposed to what would be a "mere ceremony of trial". United
States v. Laut, D.C.S.D.N.Y. 1955, 17 F.R.D. 31, 36.
In the present case, the government apparently agrees that a
ruling on the questions now is the proper procedure in this case.
In its brief in opposition to the motion to dismiss, it has not
urged that the questions were relevant, but has confined itself
to urging the court to reverse its previous position. Further, in
a "Motion for Clarification" of the Court's previous memorandum,
prayed "that the Court rule on the legality of the questions
The law in analogous situations, reason, and the explicit
request of both the government and defendant, thus dictate that
I examine the questions set forth in the indictment. This
examination is for the purpose of determining whether they are
(a) clearly relevant, (b) possibly relevant, or (c) clearly
irrelevant, to the matter of assisting the Attorney General to
make certain that the alien is available for deportation.
Of the twenty-two questions on which the indictment is based,
many are so far afield as to require no discussion, since it is
apparent at a glance that they are in no way relevant to this
purpose. These are as follows:
"Can you read in any other language than Slovene
"Have you attended any meeting of any organization
other than the singing club?"
"Have you addressed any lodges of the Slovene
National Benefit Society seeking aid for you, in your
behalf, in your deportation case * * *?"
"Have you distributed petitions or leaflets
published by the (above) Society seeking aid for you,
in your behalf * * *?"
"Since the order of supervision have you attended
any meetings or lectures at the Peoples
Auditorium * * *?"
"* * * Have you attended any meetings or socials at
the Chopin Cultural Center * * *?"
"Have you attended any movies * * * at the Cinema
"Are you now or have you ever been a member of the
Slovene American National Council?"
"Are you now or have you ever been a member of the
United Committee of the South Slavic Americans?"
There is no allegation which would shed any light on how these
activities would in any way affect the probability of the alien's
presenting himself to immigration officials when required to do
so. The questions by themselves are completely meaningless in
The same may be said of ten other questions, eight of which are
"Do you know John Doe?", and two "Have you visited the office of
John Doe?" "We seriously doubt whether the
`Do-you-know-a-certain-person' question, without more, can ever
be said to be pertinent for the purposes of a criminal
prosecution under § 192." Bowers v. United States, supra,
202 F.2d 447, at page 452; see also United States v. Aiuppa,
D.C.N.D.Ohio 1950, 102 F. Supp. 609, 613.
The first question in the indictment is "Do you subscribe to
the Daily Worker?" Quite aside from its obvious irrelevancy to
availability for deportation, to subject a man to criminal
penalties for failure to answer a question as to what he reads
would be an apparent infringement of rights protected by the
The remaining two questions are "Have you attended any meetings
of the Communist Party of the U.S.A.?", and "Are you now a member
of the Communist Party of the U.S.A.?" It is apparent that an
affirmative answer to this question would not indicate anything
about whether or not the defendant was holding himself in
readiness for deportation. Directly in point are the many cases
which have held that whether or not a person is a member of the
Communist Party, by itself, has no relationship to his fitness to
be admitted to bail. The leading case is Stack v. Boyle, 1951,
342 U.S. 1, 5, 72 S.Ct. 1, 4, 96 L.Ed. 3, in which the Court
considered a motion for reduction of bail by persons indicted
under the Smith Act, 18 U.S.C.A. § 2385. The only evidence
offered by the Government was a showing that four persons
previously convicted under
that Act had forfeited bail. The Court found such a showing
insufficient, remarking that "the fixing of bail for any
individual defendant must be based upon standards relevant to the
purpose of assuring the presence of that defendant." (Italics
A similar holding in Christoffel v. United States, 1952, 89
U.S.App.D.C. 341, 196 F.2d 560, 567 is explained in the following
"The Government urges that the fact that
Christoffel is a Communist and is active in party
affairs renders unlikely his appearance when required
to appear. * * * Moreover, even if it be assumed that
(he) is a Communist and is actively engaged in
Communist party affairs, this, without more, is not a
proper ground for denial of bail. * * * In the
instant case the present primary issue is whether
Christoffel will, under the conditions of bail * * *
make appearance before the court when required to do
The opinion then quotes from another bail case which reached
the same result on the same reasoning, Williamson v. United
States, 2 Cir., 1950, 184 F.2d 280, 284:
"`But the right of every American to equal
treatment before the law is wrapped up in the same
constitutional bundle with those of these Communists.
If in anger or disgust with these defendants we throw
out the bundle, we also cast aside protection for the
liberties of more worthy critics who may be in
opposition to the government of some future day.'"
Another authority to the same effect is United States ex rel.
Pirinsky v. Shaughnessy, 2 Cir., 1950, 177 F.2d 708.