Diaz v. Chasen

• Decision Date: 13 April 1981
• Docket Number: No. 80-3605,80-3605
• Parties: Warren DIAZ, Sr., d/b/a Diaz Trucking Company, Plaintiff-Appellant, v. Robert E. CHASEN et al., Defendants-Appellees. Summary Calendar. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 764

642 F.2d 764

Warren DIAZ, Sr., d/b/a Diaz Trucking Company, Plaintiff-Appellant, v. Robert E. CHASEN et al., Defendants-Appellees.

No. 80-3605

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit A

April 13, 1981.

Peter J. Compagno, New Orleans, La., for plaintiff-appellant.

John Volz, U. S. Atty., Michaelle Pitard, Asst. U. S. Atty., New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CHARLES CLARK, REAVLEY and JERRE S. WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Appellant, Warren Diaz, for several years had held a customhouse cartman's license, doing business in New Orleans, Louisiana. On January 9, 1979, he was convicted of the possession of stolen goods and received a one-year sentence of imprisonment, suspended, with a two-year inactive probation. One June 29, 1979, his sentence was terminated by order of the Louisiana court in order to bring about an automatic pardon and in an attempt to enable him to obtain or retain his customhouse cartman's license. Article IV, Section 5(E)(1) of the Louisiana Constitution provides: "... (A) first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor."

On October 1, 1979, the District Director, U.S. Customs, notified Mr. Diaz that it was proposed to revoke his cartman's license pursuant to § 112.30(a)(5) of the Customs Regulations which authorizes the District Director to revoke or suspend a cartman's license if: "the holder of such a license or an officer of the corporation holding such a license is convicted of a felony, or is convicted of a misdemeanor involving theft, smuggling or a theft-connected crime."

Pursuant to Customs Regulations Mr. Diaz was given a hearing on November 1, 1979, before a designated hearing officer. The hearing officer recommended that his license be revoked even though the automatic pardon under the Louisiana constitutional provision had taken effect because of the termination of his sentence by court order. This recommendation was adopted by the Commissioner of Customs who ordered that Diaz' license be revoked effective at midnight June 2, 1980.

Diaz brought this suit in federal court for a temporary restraining order, a preliminary injunction, a permanent injunction, and declaratory relief, challenging the action of the Commissioner of Customs in revoking his customhouse cartman's license. His contention is that his pardon from the felony conviction deprives the Commission of the authority to revoke his license. The district court dismissed his action, and he appeals.

We affirm. The sole question in this appeal is whether the automatic pardon provision of the Louisiana statute has rendered ineffective the Customs Commissioner's decision to revoke appellant's license.

Our decision must turn upon the effect of the particular pardon which Diaz received automatically under the Louisiana constitutional provision. In Gurleski v. United States, 405 F.2d 253, 266 (5th Cir. 1968), this Court said: "A pardon for any other reason than subsequent proof of innocence does not obliterate the defendant's previous transgressions particularly as they may bear on his present character and veracity. Any number of reasons may lie behind the granting of an executive pardon, but the granting of a pardon does not in itself...