United States v. Minker

PETITIONER:United States

DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Third Circuit

ARGUED: Nov 14, 1955 / Nov 15, 1955
DECIDED: Jan 16, 1956

Facts of the case


  • Oral Argument, Part 2: United States v. Minker – November 14, 1955 (35)
  • Oral Argument, Part 1: Falcone v. Barnes – November 14, 1955 (47)
  • Oral Argument, Part 2: Falcone v. Barnes – November 15, 1955 (47)
  • Audio Transcription for Oral Argument, Part 2: United States v. Minker – November 14, 1955 (35) in United States v. Minker
    Audio Transcription for Oral Argument, Part 1: Falcone v. Barnes – November 14, 1955 (47) in United States v. Minker
    Audio Transcription for Oral Argument, Part 2: Falcone v. Barnes – November 15, 1955 (47) in United States v. Minker

    Audio Transcription for Oral Argument, Part 1: United States v. Minker – November 14, 1955 (35) in United States v. Minker

    Earl Warren:

    Number 35, United States of America versus Abraham Minker.

    Mr. Frankel.

    Marvin E. Frankel:

    May it please the Court.

    This case, on certiorari for the Third Circuit in the Falcone case, which follows, presents the same problem.

    The question in both cases is whether under Section 235 (a) of the Immigration and Nationality Act of 1952, the Attorney General and immigration officers have power to subpoena a person in an administrative investigation to determine whether judicial proceedings should be brought to seek revocation of that persons’ naturalization on a ground that it was unlawfully procured.

    Section 235 (a), which gives rise to the problem, appears in the Government’s brief, beginning at page 51.

    The particular sentence, on which the controversy turns, begins at the bottom of page 52.

    Some six lines from the bottom of the page reads as follows, “Thus, the Attorney General and any immigration officer, including special inquiry officers, shall have power to require by subpoena the attendants and testimony of witnesses before immigration officers and special inquiry officers, and the production of books, papers and documents relating to the privilege of any person to enter, reenter, reside in, or pass through the United States, or concerning any matter which is material and relevant to the enforcement of this Act and the administration of this service.”

    On page 11 of our brief, focusing on the particular words that are in dispute, we have used asterisks and set out the pertinent coercion of the statute as we read it.

    The facts are not disputed and may be simply stated.

    In September 1953, the respondent, Minker, was subpoenaed under Section 235 (a), and directed to appear before an immigration officer.

    Before the date directed for his appearance, he moved in the Eastern District of Pennsylvania to quash the subpoena.

    The motion to quash was denied in an opinion by Judge Welch that begins at page 13 of the record, and the primary issue there as it was below and as it is here, and as it is in the Falcone case which follows was whether Section 235 (a) authorized the subpoena of this kind for this kind of investigation.

    Following the denial and the motion to quash, a letter was addressed to Minker, directing his appearance in accordance with the subpoena.

    When he failed to appear, an order was sought in the District Court in accordance with Section 235 (a) to require to compel his obedience.

    The order was issued and Minker again, failed to appear, disobeying the District Court’s order.

    On motion of the Government, he was held in contempt by the District Court and fined $500.

    On appeal to the Court of Appeals for the Third Circuit, that judgment of contempt was reversed.

    The Court of Appeals agreed with the Government that Section 235 (a) authorizes the use of subpoenas in investigations of the type involved here that is in investigations to determine whether a naturalization certificate has been fraudulently procured and whether proceedings in court for its revocation should be instituted.

    The Court held, however, that the word “witnesses” in Section 235 (a) does not include in an investigation of this type, the persons whose certificate of naturalization is being investigated.

    And on this ground held that there was no power to subpoena Minker, and as I say, reversed the judgment.

    As I pointed out in summarizing the Court of Appeals’ opinion, the problem here can be broken down into two parts.

    First, the question whether in investigations of the type in these cases of the subpoena power in Section 235 (a) may be used at all.

    And if that question is answered affirmatively, there was a further narrower question on which the court below decided the case, whether the person whose naturalization is under inquiry can be subpoenaed under that — under Section 235 (a).

    Felix Frankfurter:

    Does that — on the brief, I don’t know if the first — your first question in controversy.

    Marvin E. Frankel:

    Well, the — there are two cases, Your Honor.

    The first question is not in controversy in this, the Minker case.

    The Court of Appeals held that this kind of investigation was certainly — the word the Court used was certainly a matter as to which Section 235 (a) applied, that is, it was an investigation of a problem, material and relevant in the enforcement of the Act, and therefore, came within that language of Section 235 (a).

    And what I would like to do since these are two half-hour cases —

    It agreed with the Second Circuit on that proposition.

    Marvin E. Frankel:

    That’s Correct Your Honor.

    It agreed with the Second Circuit and the Fifth Circuit, a case from which is pending before the Court on petition for certiorari, so that all three Courts of Appeals have unanimously agreed that the subpoena power in Section 235 (a) is available for denaturalization investigations of this type.

    What I would like to do because this first point is controverted, though, we have won it in the three Courts is —

    Felix Frankfurter:

    Do you mean it’s controverted by counsel?

    Marvin E. Frankel:

    By our opponent.

    Felix Frankfurter:

    I see.

    Marvin E. Frankel:

    Yes, Your Honor.

    I would like first, since it’s a broader point in some ways that — and perhaps illogically a prior point to state just summarily our position on it, and then turn to the second question on which we have our quarrel with the Court of Appeals for the Third Circuit.

    Briefly, we think the three Courts of Appeals are right for the reasons I’ve already sketched, I think.

    We think that the language, any matter, which is material and relevant to the enforcement of this Act, clearly includes the matter of investigating to see whether the powers of the Attorney General and the duties of the Attorney General with respect to revocation of fraudulently obtained naturalization certificates should be exercised and asserted.

    We think, moreover, that if there could be any doubt as to this, the legislative history of the provision would have emanated.

    This broad language, any matter, material and relevant to the enforcement of this Act, was deliberately and purposefully added when Section 16 of the 1917 Immigration Act was carried over into Section 235 (a) of the 1952 Act.

    Therefore, the language that applied pretty plainly only the questions of exclusion and deportation at the instance of the immigration service, this broad additional language was added.

    And though our opponents attempt now to limit the subpoena power in 235 (a), still to exclusion and deportation of aliens, we think that could only be accomplished by assuming and we think this is an unavailable and improper assumption that Congress didn’t know what it was about when it added this broad plain language.

    As —

    Felix Frankfurter:

    If it —

    Have any other circuits go on the other way on this proposition?

    Marvin E. Frankel:

    No Your Honor, the three — the only three Courts of Appeals which have considered it are the Third, Second and Fifth, and they have all, without dissent, agreed with us on this broad question.

    Felix Frankfurter:

    It happened merely as a matter of construction, isn’t it?

    Marvin E. Frankel:

    The problem throughout is a matter of statutory construction.

    Felix Frankfurter:

    So, no possession of any constitution of difficulty which might lead one way or the other in construction with —

    Marvin E. Frankel:

    Belatedly and we think insubstantially, there are suggestions of constitutional problems in the brief of the respondent which were never raised below.

    And we think even as a source of attempting to generate construction doubts, this kind of tardy act for — to raise constitutional problem should be rejected.

    Now, turning to the narrow question on which the Third Circuit decided this case against the Government, the Court and its analysis of this problem begins on page 18 of the record and — and I plan to pitch my argument to some extent on a criticism of — of this analysis.

    The Court of Appeals began with a proposition that the word “witnesses” is an ambiguous word.

    It said that there are many occasions where it is difficult to know whether the word “witnesses” includes a party.

    Earl Warren:

    In this case or the — or the Third Circuit?

    Marvin E. Frankel:

    The — this is the Third Circuit case and — and the opinion — I refer to page 18 of this slim Minker record where the opinion begins with this statement to the problem.

    In this connection, the Court refers to three state cases, dealing with state discovery statutes where the problem of what the word “witnesses” includes was considered, and where I think in each instance, the state court held that it’s particular discovery statute when it was referred to witnesses did not refer to a party.

    Now, we think that the error of the Third Circuit begins right here.

    Marvin E. Frankel:

    I think it’s significant that although it mentioned these state cases, unlike the Second Circuit and unlike the District Judge in this case, the Court of Appeals made no reference whatsoever to any of the many statutes and cases dealing with the administrative subpoenaed power, which is what concerns us here.

    Tom C. Clark:

    You said administrative subpoena, is the subpoena here?

    Is the subpoena in the record?

    Marvin E. Frankel:

    Yes, Your Honor.

    Tom C. Clark:

    Was he — was he summoned to appear before the administrative hearing?

    Marvin E. Frankel:

    He was summoned to appear before an immigration officer.

    This is an investigative inquiry.

    Tom C. Clark:

    Why, would it to be?

    Was anybody to be there, with him, and the officer?

    Marvin E. Frankel:

    There, the summons was only to him.

    He didn’t come.

    In the Falcone case, the two Falcone’s did come and they came with their lawyers.

    The immigration service for its purposes, did not invite guests in the subpoena, but there’s no indication that others than the — than Minker would be excluded.

    It’s simply a subpoena to him as his customary directing his appearance.