Samuel H. Taran v. United StatesSamuel H. Taran v. United States
Appellant was found guilty by a jury, on each of the two counts in an indictment, of having violated
In general,
Count I of the indictment charged appellant with having corruptly endeavored to influence, obstruct and impede, and also with having succeeded in doing so, the due and proper administration of the law in relation to a deportation proceeding pending against him before the Immigration and Naturalization Service. Count II made a similar charge against him as to the administration of the law relating to a naturalization proceeding, alleged to have been pending before the Immigration and Naturalization Service from the fact that a preliminary application to file a petition for naturalization had been submitted by appellant to the Service.
Appellant is an alien, who had entered the United States as an immigrant in 1912, at the age of 15. He had sought to become naturalized in the federal district court in Minnesota in 1941, but the court had denied his petition on the ground of “bad moral character”, in accordance with the report and recommendation of an examiner of the Immigration and Naturalization Service. The court, in a later published opinion, In re Taran, D.C.Minn.,
Thereafter, in 1945, appellant moved from Minnesota to Florida, where he has since had his residence. In February, 1951, he undertook to submit to the Immigration and Naturalization Service, at its field office in Miami, Florida, upon official Form N-400, as required by
In submitting the application, he indicated that he would attempt to obtain a pardon from the Minnesota State Board of Pardons on his 1929 conviction, referred to above. The Immigration and Naturalization Service took note of this expressed intention and made return to appellant of his preliminary application on February 28,1951, stating in its letter that “It is requested that you do not submit the application until all required documents can accompany it”. The letter listed, as being required to accompany the application upon its submission, “Pardon for violations in the state of Minnesota”, and “Three photographs of yourself”, of specified size and pose.
Appellant, however, did not again submit a Form N-400 preliminary application to the Service until February, 1955.
1
This apparently was because the Attorney General had, in June, 1951, after the return of appellant’s application to him, as referred to above, issued a warrant of arrest in deportation proceedings against him, under
One of the grounds for deportation on which the warrant of arrest was predicated was appellant’s Minnesota conviction, supra. Another was a claim that, in having gone to Puerto Rico for a week and in returning therefrom to Miami, Florida, in March, 1951, appellant had been guilty of making an illegal entry into the United States.
The first ground asserted was left without any basis on which to proceed, when the Minnesota State Board of Par
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dons, in October, 1951, granted appellant a full and unconditional pardon “for the crime of which he was convicted and from penalties which he thereby incurred by reason of the law and the conviction and sentence aforesaid”. The statute then in effect,
The only ground therefore that remained under the warrant as a basis for proceeding with the deportation attempt was appellant’s Puerto Rico trip. To prevent the order issued on this ground from being carried out, appellant brought suit against the Attorney General in the District Court for the District of Columbia, under the provisions of the Administrative Procedure Act,
The criminal prosecution here involved was instituted in the District Court for the District of Minnesota in September, 1956, alleging that the pardon, which the Minnesota State Board had granted appellant in October, 1951, had been obtained by him through misrepresentation, concealment and fraud against the Minnesota Board. The indictment charged that, in having so obtained the pardon, appellant was guilty, under
The misrepresentation, concealment and fraud, which it was alleged that appellant had perpetrated on the Minnesota Board, and which it was claimed had induced the granting of the pardon, was a false statement which he had made in his application for pardon regarding other arrests, indictments and convictions against him. The official application form prescribed by the Board and used by appellant called for information to be set out on various specified matters. Among the things to which answer was to be made was the following printed provision: “6. Has never been arrested, indicted or convicted of any offense except ....................”. In the blank space provided for answer, appellant inserted this statement: “Liquor law misdemeanor conviction 15 years ago,
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and guilty plea to OPA misdemeanor in 1944; charged with minor violations pri- or but no record of convictions”. The Government’s evidence established the existence of arrests, indictments and convictions, as set out in In re Taran, supra,
We turn to a consideration of whether the charges and verdicts before us are entitled to stand.
I.
The deportation-proceeding conviction.
On the facts in the printed record, there was ample probative basis for the jury to believe and find that appellant had knowingly and intentionally misrepresented his criminal record in his pardon application for purposes of the Board’s consideration. Whether his statement could unspeculatively be found on the circumstances to have been an influencing factor in the granting of the pardon, so as to be capable of representing operative fraud, might, however, constitute a closer question. But more crucial than this in respect to the deportation-proceeding charge is the question whether it was at all competent in the situation shown for the court to have allowed the jury to make a collateral exploration into and determination of what basis the pardon had rested on.
The Government was permitted to prove by the testimony of one of the then-members of the Board (its personnel had since successionally changed) that had he known appellant’s true record, as revealed to him by the Government in relation to this prosecution, he would not have voted for the pardon. Another member testified, however, that the Board’s action had been prompted by its desire not to have the Minnesota conviction used as a basis for deporting appellant — similarly as it had done in a number of other cases where it appeared that the convicted person had since become rehabilitated. The witness stated that the substantial number of communications which had been addressed to the Board by residents of Miami, and which constituted a part of the file, indicated that appellant had, since his removal to Florida in 1945, been a law-abiding person, so that the question of his previous criminal record had not been a matter of any special concern in the pardon situation. The third member testified that he had been new upon the Board at the time, and that he had accordingly been guided primarily by the judgment of the other two in the situation, and more particularly perhaps by that of the witness last referred to.
The record also indicates beyond this that, despite the attempt made by Government counsel, for purposes of this prosecution, to get the State to repudiate the pardon or to take action to have its legal significance annulled, the present Board of Pardons (of which the Attorney General of the State was a member) had refused to do so or to cast any shadow otherwise upon it. Thus, in its relationship to both the deportation proceeding and the present trial, the pardon has, so far as the State of Minnesota is concerned, stood, and been intended to be permitted to stand, as valid, effective and unquestioned official clemency-action on its part.
Whether Minnesota law would allow any attack whatever as to a full and unconditional pardon has apparently never come before the Supreme Court of that State for consideration. Assuming, however, that it would be held that such a pardon can be attacked, it seems clear, from the expressions and holdings of that Court in the related field of conditional pardons, that this would be recognized as being capable of being done only as a matter of direct legal issue and judicial determination between the State and the pardon-holder; and that it is accordingly not possible for a third party to make any collateral attack upon or indirect impeachment of it.
Thus, in Guy v. Utecht,
The point of the preceding discussion is that, in the absence of any repudiation and legal attack by the State of Minnesota upon a full and unconditional pardon, which has been issued by its Board of Pardons within the latter’s constitutional 'and statutory powers, the pardon'has, ih'it’s'state aspect, a conclusive nature and consequence. This would mean that in any legal situation, except one involving repudiation or attack by the State itself, the integrity and effect of the pardon would, so far as Minnesota law is concerned, have to be conclusively recognized, so that examination of its elements, incidents, or setting would necessarily be legally incompetent and immaterial for any purpose.
The pardon furthermore would federally have to be accorded the same recognition in any situation involving its state character and significance, under the full faith and credit statute,
More immediate than this, however, as to the present situation, is the fact that-the statute under which the deportation proceeding was being had made an absolute acceptance of the state nature and consequence of a pardon in relation to the administration of the deportation laws. As previously noted,
Whether Congress could, had it chosen to do so, have allowed a state conviction to be used as a basis for deportation, even though the State had wiped out the conviction by a pardon, there is, of course, no occasion here to consider. It is only important here that Congress has seen fit, for deportation purposes, to give complete recognition to the historic concept and role of pardons, as the element of executive clemency and its legal consequence have come to be rooted in our scheme of justice. That general concept has been typically stated by the Minnesota Supreme Court, as follows: “A pardon * * * completely frees the offender from the control of the state and relieves him of all legal disabilities resulting from his conviction. As a practical matter, it wipes out the conviction itself”. State v. Meyer,
It was with such acceptance that Congress made the prescription that the provision in the statute for the deportation of aliens convicted of a crime involving moral turpitude “shall not apply to one who has been pardoned”. Such a person is, as to a conviction in that status, left outside the application of the statute. He is expressly excepted from its operation. In other words, the Attorney General is without jurisdiction or power to make deportation, or to engage in any consideration thereof, in relation to such a conviction.
*567 We re-emphasize that the lack of jurisdiction or power to act arises from the existence of the pardon. The authority granted the Attorney General to deport an alien who has been convicted of a crime involving moral turpitude does “not apply to one who has been pardoned”. Once a full and unconditional pardon has been issued and is outstanding, a deportation arrest made as to such a crime becomes invalid and the authority to proceed in a deportation-consideration in relation thereto ceases to exist.
The result, as has been stated, is made to occur entirely by the statute itself. It is dependent solely upon the fact that such executive action exists, regardless of the considerations or inducements which may have prompted it. What the statute gives recognition and effect to is the fact of the pardon itself, not its reasons or basis. The only administration of the law which is possible to be involved in respect to a pardon situation is the recognizing of and giving effect to the pardon, as the statute requires. Since the pardon is accorded a legal finality and conclusiveness by the statute, its elements and incidents are inherently without any materiality, or competency, or other legal significance, in relation to the administration of the deportation statute.
Thus, so far as deportation is concerned, the elements and incidents of a pardon, granted in the exercise of constitutional and statutory power, are, by
With
In short, since the deportation statute has left the things charged against appellant as not being contaminative of the pardon for purposes of deportation-law administration, we do not believe that it can be said that
We must accordingly hold that appellant’s motion for a directed verdict of acquittal on the first count of the indictment was legally required to be sustained.
II.
The naturalization-proceeding conviction.
As to naturalization, different than as to deportation, there is no statutory provision which accords to the existence of a pardon such a required legal acceptance as to cloak the basis, processes and incidents thereof with a legal conclusiveness for purposes of the administration of the law in that field, and so to make them legally incompetent or immaterial in relation thereto.
In a naturalization proceeding, a pardon is capable of constituting merely an element of relevance and consideration on the question of good moral character, which the statute requires as a qualification for citizenship. The question of good moral character is necessarily one of prime concern and consideration both on the preliminary application submitted to the Naturalization Service and on the naturalization petition itself.
It would therefore seem to us that an improper obtaining of a pardon by an alien for naturalization use could be capable of constituting such an endeavor
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to influence, obstruct, or impede the due and proper administration of the naturalization laws as to be able to give rise to a violation of
Here, since the naturalization proceeding claimed to be involved was pending (if at all) in Florida, the submission or use made by appellant of the pardon after its obtainment could not, of course, constitute an offense in Minnesota, but only in Florida. Hence, only the obtaining of the pardon, as an endeavor made to influence the proceeding pending in Florida, would be capable at all of having its prosecution laid in Minnesota. The submission to the Naturalization Service of an application to file a petition for naturalization cannot in a legal sense, and within the purpose of
The regulations of the Immigration and Naturalization Service make specific prescription as to the office where an alien is required to submit his application to the Service, related to the place where his petition for naturalization has to be filed.
Thus, within the organizational scheme and set-up of the Naturalization Service, and in relation to the objectivity entitled to be attributed to the term “proceeding pending” in
For purposes of the result which we believe is here compelled, however, it is not necessary to deal with any further considerations as to appellant’s conviction on Count II, except one matter. That is the Government’s attempt to relate the charge and offense of Count II to the fact that appellant had submitted a preliminary application to file a petition for naturalization to the Miami, Florida, office of the Naturalization Service in February, 1951. It was on this basis that the indictment alleged that a naturalization proceeding was pending before the Service in April, 1951, when appellant made application to the Minnesota State Board for a pardon, as well as in October, 1951, when the pardon was obtained by him.
As we have pointed out above, however, the Service had returned the application to appellant on February 28, 1951, with the direction, “It is requested that you do not submit the application until all required documents can accompany it”. Also, as noted, appellant did not again undertake to submit an application to the Service until February, 1955. Thus, at the time of the charged offense, the Immigration and Naturalization Service had no application in its hands; it was not, within the regulations, in a position to make an investigation “based upon the Form N-400 submitted by the applicant”; it indicated by its letter to appellant that it regarded the application as not having been entitled to be submitted and that it was not going to give any consideration to it but was making return of it to him; and it engaged in no correspondence or taking of any action in relation to it, suggestive that it recognized the application as having any possible pendency before it, or as imposing any statutory or regulatory responsibility toward appellant in respect thereto. Appellant similarly so treated *569 the situation, as evidenced by his submission of a new application in February, 1955, after the deportation proceedings had come to an end. And that application was dealt with by the Service as a new and independent matter, having no relationship to what had been done in 1951.
On these facts, the holding is legally compelled, it seems to us, that there had been what amounted to a rejection or withdrawal of the 1951 application, so that there was no proceeding in naturalization pending during appellant’s pardon efforts, or until February, 1955. To be pending is to be subject to and awaiting some form of disposing action. 70 C.J.S. Pendency, p. 420.
Hence, whatever appellant may improperly have done in making application for a pardon and in obtaining it, this could not be held to be an endeavor to influence, obstruct, or impede the due and proper administration of the law in relation to any proceeding pending before the Naturalization Service, as an offense under
No criminal offense would be capable of arising as to the former, until a proceeding had come to pend and there was an endeavor to influence, obstruct or impede it by means of what had previously been done. But there is not charged here, nor could there exist in Minnesota, any crime in relation to what appellant may have improperly done in making use of his pardon in the naturalization proceeding which came to pend in Florida in 1955. And, of course, the questions whether his pardon-obtaining actions were in fact improper, and whether he made an improper use of the pardon, as related to that proceeding, are matters, not for us, but for another court.
III.
The result reached leaves all the other contentions of the parties without need for any consideration. The judgment of conviction on each of the counts of the indictment is reversed, and the cause is remanded with directions to enter a judgment of acquittal in favor of appellant as to each of the offenses charged in the indictment, on the basis of the conclusions set out in the opinion.
Reversed and remanded with directions.
Notes
. On this preliminary application, an examiner of the Service again made a recommendation against the granting of citizenship to appellant, but the District Court for the Southern District of Florida refused to follow the recommendation and granted appellant’s petition for naturalization. The order has, however, not been permitted to become final, presumably because of the institution by the Government of this criminal prosecution and because of the nature of the charges involved therein.