642 F.2d 764 (5th Cir. 1981), 80-3605, Diaz v. Chasen

Docket Nº:80-3605
Citation:642 F.2d 764
Party Name:Warren DIAZ, Sr., d/b/a Diaz Trucking Company, Plaintiff-Appellant, v. Robert E. CHASEN et al., Defendants-Appellees.
Case Date:April 13, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 764

642 F.2d 764 (5th Cir. 1981)

Warren DIAZ, Sr., d/b/a Diaz Trucking Company, Plaintiff-Appellant,

v.

Robert E. CHASEN et al., Defendants-Appellees.

No. 80-3605

Unit A

United States Court of Appeals, Fifth Circuit

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.

Page 765

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...

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