Interim Decision *1283 

MAn.J. K OF PAUL 

In DEPORTATION Proceedings 

A-5142538 

Decided by Board May 14, 1903 

Since respondent was represented during the deportation hearing by counsel 

who had notice of the existence of pre-hearing statements made by a Government witness but did not request that the statements be made available, he 

is not subsequently entitled to the production of the statements. 

CHAZGE : 

Order: Act of 1952—Section 241(a) (6) [8 U.S.C. 1251(a) (8)3—After entry, 

an alien who was a member of the Communist Party of the United 

states. 

Before us are an appeal from the order of the special inquiry officer 

requiring respondent's deportation upon the ground stated above and 

a motion for the production of documents. The appeal will be dismissed and the 'notion denied. 

On February 4, 1963, the special inqury officer ordered respondent's 

deportation upon the charge stated above. The special inquiry officer 

found the charge sustained on the basis of the testimony of Service 

witness Pikes. The attorney of record became ill; notice of appeal 

was filed by a new attorney who thereafter handled the case. In the 

notice of appeal deportability was contested on the ground that the 

evidence did not support an order of deportation. 

A day after the appeal was filed, =nisei filed a motion asking that 

the appeal be held in abeyance and that she be furnished with copies 

of all statements made by Government witness Pikes to any agency of 

the Federal Government. The motion was forwarded to the special 

inquiry officer who informed counsel that the record. contained no 

copies of statements made by Pikes and that the motion was belated 

since the proceedings before himhad been completed. This motion 

is now before us. 

Respondent, a 66-year-old married male, a native and last a citizen 

of Ruagift, has resit-led in the United States since his admission for 

permanent residence in 1922. The order of deportation is based on the 

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Interim Decision 4fr1283 

finding that respondent had been a member of the Communist Party 

after his entry. Counsel raises four main issues; laches, lack of 

credibility, meaningfulness of membership, and nonaccess to 

documents. 

The special inquiry officer has dealt in great detail with the facts 

of record and we shall state no more than is required to understand 

the contentions of counsel. 

Deportation hearings required three sessions. At the first (April 

13, 1959) counsel conceded the accuracy of all findings of fact contained in the order to show cause except the one which charged the 

respondent with having been a member of the Communist Party after 

entry. The respondent refused to be sworn and testify at this session 

or at those which followed. 

At the second session (May 19, 1959) the Service produced Abraham 

Zide who testified he had attended Communist Party meetings with 

respondent from the end of 1946 to about August 1948. At the conclusion of his examination, the Service asked for an adjournment to 

arrange for the appearance of another witness. Counsel objected; 

when he was overruled he stated that in view of the courtesies which 

had been extended to him by the examining officer he would have no 

objection to the case going over sine die. 

At the third session (November 1, 1962) counsel moved for termination of proceedings on the ground the Government was guilty of 

lathes. The motion was overruled. (We believe the special inquiry 

officer has adequately discussed this issue.) The testimony of Government witness Fikes was taken at this session. 

Fikes testified that he had joined the Communist Party in Birmingham, Alabama, in 1949, that in late 1949 or early 1950, he had gone to 

New York where a Communist Party representative arranged that he 

stay with the respondent, that he stayed about four weeks, that during 

the stay he attended four or five Communist Party meetings held at 

the respondent's apartment, that respondent presided at the meetings, 

that respondent paid Communist Party dues, and that in discussions 

with the witness, respondent admitted that he was a member of the 

Communist Party. 

Fikes testified that the Stockholm Peace Petition had been one of 

the subjects of discussion at the meetings, that on two or three occasions 

between 1953 and 1958, he stayed at the respondent's home in New 

York, that he last saw respondent in 1957'when he received a donation 

for the Communist Party from him, and when in the respondent's 

presence and in respondent's apartment, and after the respondent had 

helped arrange the meeting, the witness met on Communist Party 

matters with Communist Party officials, Silvia Hall and Jim Jackson 

(pp. 77-75, 97-98, 104). 

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Interim Decision #1283 

Pikes admitted, that in completing a United States Army form 

which asked for information concerning Communist Party membership, he had lied about membership in the Communist Party (p. 79). 

He testified that' e had' een a witness before the grand jury in a case 

involving the Mine, Mill and Smelter Workers Union. He stated on 

cross-examination that from 1953 to 1958 he had made weekly reports, 

some oral and some in writing on Communist Party matters to the 

Federal Bureau of Investigation and that some of the reports mentioned respondent (pp. 83-85) . At the hearing, counsel did. not request 

production of these reports, nor did counsel v...sk for a continuation 

of the hearing to enable him to determine whether material existed 

which would be of use in cross-examining Pikes. 

It is contended that Pikes' testimony is lacking in probity and 

reasonableness. Counsel contends that Pikes' testimony that he attended Communist Party meetings at respondent's home strains 

credulity because the Party's concern with membership exposure 

would have made it unlikely that a nonmember of a Communist Party 

would have been invited to attend Communist Party meetings. We 

find no merit in this contention. There is no evidence in the record 

that a Communist Party member who had moved from the area where 

his unit was located and who presumably would be away from that area 

for some time would not have been permitted to attend. meetings of 

other Communist Party units. On the contrary, it appears to us most 

likely that arrangements would have been made to continue Pikes 

under the direction and discipline of the Communist Party by requiring him to attend a unit in the place where he found himself. 

Counsel contends that meetings at respondent's home were meetings 

of members of a furniture workers union who were interested in union 

problems. Pikes was a knowledgeable member of the Communist 

Party : he had attended a Communist Party school, he had collected 

Communist Party dues, he had been the chairman of the Communist 

Party unit to which he had belonged in Birmingham, Alabama, he was 

the liaison man between the Communist Party and the Mine, Mill and 

Smelter Workers Union unit there, he was a member of the Southern 

Regional Section of the Communist Party and was sent by the Communist Party of Alabama to New York to represent them at meetings. 

Pikes testified that the meetings were Communist Party meetings 

composed of persons who were furniture workers; that Communist 

Party literature was distributed; that Communist Party dues were 

collected.; that meetings would be stopped at the prospect of a person 

not a member of the Party coming to the apartment (p. 60) ; and that 

the respondent had told him that he was attempting to recruit furniture workers for the Communist Party (p_ 65). The witness knew 

that there was a rank and file committee of furniture workers union 

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Interim Decision #1283 

(p. 99) ; he knew that the meetings he attended at respondent's home 

were not meetings of the rank and file committee (p. 100) ; and he 

identified the meeting as Communist Party meetings, although he was 

aware that at the meetings there was discussion of problems confronting the furniture workers union (pp. 103,104) . 

Counsel contends that Pikes' description of what occurred at the 

Communist Party meetings he attended is so lacking in details that 

what is described is nothing but the general procedure at any Communist Party club meetings, and could be used by Pikes to place himself at any Communist Party meeting he desired to testify about. 

The contention is without merit. Pikes testified in 1962 about meetings which had occurred some 12 years previously. He knew they 

were Communist Party meetings; he placed the respondent at these 

meetings; he stated that the respondent's wife would check on persons 

coining to determine if they were communists and eligible to attend 

the meeting. Neither of the persons specifically mentioned contradicted this testimony. It is understandable that the specific details of 

matters handled at these meetings cannot be given at this date. The 

special inquiry officer who had the opportunity to observe Pikes testify, 

found him credible. After careful review of the record we find the 

witness credible, and accept his account of attendance at Communist 

Party meetings with the respondent. 

Pikes testified that one of the items considered at the Communist 

Party meetings in respondent's apartment was the Stockholm Peace 

Petition. Counsel drawing upon matter not in the record contends 

that the petition could not have been discussed at these meetings which 

Fikes stated occurred in late 1949 or early 1950 because the Stockholm 

Peace Appeal was first passed in March 1950 and circularization of 

petitions started at the end of May or beginning of June 1950. Counsel has not asked for a reopening of proceedings to cross-examine the 

witness on the basis of this information. For the sake of argument we 

shall assume that the facts alleged by counsel concerning the petition 

could be established at the hearing. Since the witness revealed his 

uncertainty about the exact period of time that he lived with the respondent, placing it as late 1949 or early 1950, it is not significant that 

he could have been in error a month or two concerning the period he 

spent with the respondent. In any event, discussions which may 

have taken place in April to June 1950 could well fall within Fikes' 

testimony that the meetings could have taken place in early 1950. In 

view of this fact and noting that counsel does not request reopening of 

proceedings to cross-examine Pikes on this matter and give him a 

chance to explain the conflict if any, we do not believe that Pikes' credibility is lessened. 

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Interim Decision #1283 

Counsel contends that the respondent, a person of mature years, 

would not have divulged Communist Party membership to Fikes, then 

a youth. There would appear to be no reason for concealing the fact 

of membership if Pikes was considered a proper person to invite to the 

Communist Party meetings in respondent's home. 

Counsel takes issue with Pikes' designation of a social affair as a 

closed one on the ground the record clearly establishes that admission 

was open to anyone who paid the admission price. Pikes' testimony 

is that the dance was open only to individuals who were members of 

the Party, even though tickets were sold (pp. 66-57, 94-96). We do 

not find it clearly established the meeting was open to the general 

public. Fikes denied that it was so open. 

Counsel contends the Service has failed to carry its burden of proof 

that respondent was a member of the Communist Party and that 

membership was meaningful. We believe that the fact of membership 

is established by the testimony of Pikes. As to meaningfulness, Pikes' 

testimony—that the respondent acted as chairman at meetings, that 

unwanted people would have been prevented from attending, that he 

attempted to recruit people for the Communist Party (p. 65) and 

that the respondent with his wife attended a special meeting at which 

Pikes made a report on activities of the Party for the South, and that 

respondent was active in arranging the meeting (p. 74)—reveals• more 

than a nominal membership. The appeal will be dismissed. 

Counsel requests that if the appeal is not sustained, that his motion 

be granted. The motion is not for reopening of proceedings but that 

respondent be furnished with copies of statements, memoranda and 

reports made by Pikes to the Service and other Federal agencies relating to the respondent. In particular all reports relating to the 

respondent's whereabouts in 1949, 1950 and 1957 are requested. At 

oral argument, counsel stated that she would be satisfied if the information was made available to the special inquiry officer presumably 

for disposition in the spirit of 18 U.S.C. 3500. 

The request for reports relating to the whereabouts of Fikes is occasioned by the fact that Pikes testified, at the deportation hearing, 

that late in 1949 or early 1950 (pp. 52, 57, 67,102) he spent four weeks 

with 

with 

 respondent in New York, and that this testimony is in conflict 

with testimony counsel now presents which shows that at a trial in 

November 1959 in Denver, Pikes testified that from about the summer 

or fall of 1949 until about the fall of 1950 he had been a member of 

the Communist Party club in Birmingham, Alabama, and had apparently spent his time in Birmingham during this period. Counsel also 

cites from the report of an FBI agent on the same trial that Pikes 

had informed him that ho came to Birmingham in 1950 and joined the 

Communist Party there and counsel contrasts this with Pikes' testi272 
Interim Decision #1283 

mony at the deportation hearing that he came to New York City in 

late 1949 or early 1950 and remained until January 1951 at which 

time he returned to Birmingham and entered the United States Army. 

Counsel has not requested the right to cross-examine the witness 

on either of these matters. On this record we do not find that a conflict 

of a serious nature exists. At the deportation hearing, Fikes testified that he remained in Birmingham, Alabama, to late 1949 or early 

1950; the transcript of trial testimony merely reveals that it was 

around the fall of 1950 that he had left Birmingham rather than early 

1950 as his deportation testimony indicates it could have been. But 

it is not clear from the trial testimony that Fikes actually left Birmingham late in 1950; the trial testimony reveals that Fikes was uncertain 

as to the time he left Birmingham, indicating that it was "sometime in 

1950" and that the best he could recall was that it had happened in the 

fall. As to the report of the FBI agent that Fikes stated he joined the 

Communist Party in 1950 in Birmingham we do not see how Fikes 

can be held responsible for the agent's testimony. The FBI report 

is in conflict with Fikes' own testimony at the trial that he had joined 

the Communist Party in Birmingham in the summer or fall of 1949 

and if the quotation furnished by counsel is accurate, it shows the 

respondent as having attended a Communist Party school in New York 

in 194f (the respondent attended in 1949) . 

The request for production of reports made by Fikes concerning 

the respondent must be denied. As the Service representative has 

pointed out, counsel who represented the respondent at the hearing 

had notice of the existence of the report (pp. 83-84) but did not request 

that "statements" be made available. Respondent is, therefore, not 

entitled to the production of the statements. Ogden v. United States, 

303 F. 2d 724,733,9th Cir., and cases cited in footnote 27. 

ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

It is further ordered that the motion for production of documents 

be and the same is hereby denied. 

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