Maroon v. Immigration & Naturalization Service

• Decision Date: 25 August 1966
• Docket Number: No. 17926.,17926.
• Citation: 364 F.2d 982
• Parties: Nagel Jacob MAROON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

364 F.2d 982 (1966)

Nagel Jacob MAROON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 17926.

United States Court of Appeals Eighth Circuit.

August 25, 1966.

James Daleo, Kansas City, Mo., for petitioner; Norman E. Greene, Kansas City, Mo., on the brief.

Paul Nejelski, Attorney, Department of Justice, Washington, D. C., for respondent; Maurice A. Roberts, Attorney, Dept. of Justice, Washington, D. C., Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., and Stephen H. Gilmore, St. Louis, Mo., on the brief.

Before VOGEL and MATTHES, Circuit Judges and REGAN, District Judge.

REGAN, District Judge.

Before us is a petition for review of a final order of deportation. We have jurisdiction to determine the validity of the deportation order under Section 106 (a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a). The District Director should not have been named or joined as a party-respondent. We substitute the Immigration and Naturalization Service as respondent. 8 U.S.C. § 1105a(a) (3).

An Order to Show Cause dated November 16, 1962, was served upon petitioner. In substance, the order alleges that petitioner is neither a native nor a national of the United States, but is a native and citizen of Mexico, who last entered the United States on or about October 5, 1909, and that he is subject to deportation pursuant to Section 241(a) (4) of the Immigration and Nationality Act, in that he had been convicted on September 29, 1950, for the offenses proscribed by Section 145(b), 26 U.S.C., of willfully and knowingly attempting to evade a large part of his income tax due for each of the calender years of 1946, 1947, and 1948, and that said offenses did not arise out of a single scheme of criminal misconduct. A hearing on the order to show cause was held in four sessions before a special inquiry officer. Evidence bearing on the issues of alienage and deportability was introduced. The petition for review, filed after all administrative remedies were exhausted, relates to both issues.¹ We consider them in inverse order.

Deportability

Petitioner makes no contention that he was not in fact convicted of two crimes involving moral turpitude which did not arise out of a single scheme of criminal misconduct. Under the evidence, the special inquiry officer could not have fairly reached any other conclusion. Petitioner frankly admitted several times his convictions for the three offenses alleged in the order to show cause, and that the allegations relating thereto were true. These admissions were with respect to the specific offenses alleged in the order to show cause, including the date of sentencing and the length of sentence imposed upon him after conviction.

The sole points urged by petitioner on the issue of deportability are that Exhibits 3 and 3A were inadmissible on the theory that they were not properly authenticated, and that in any event Exhibit 3 was not actually received in evidence. Exhibit 3 is the record of conviction consisting of a copy of the indictment returned in the United States District Court for the Western District of Missouri against Nagel J. Maroon, also known as Jake Maroon, charging him in four separate counts with the crimes of income tax evasion for the years 1945, 1946, 1947 and 1948, and a copy of the judgment, sentence and commitment on counts 2, 3 and 4.

In his original decision, dated June 17, 1963, the special inquiry officer found, inter alia, that petitioner was deportable because of his conviction for the three income tax evasion offenses. On appeal to the Board of Immigration Appeals, petitioner challenged the admissibility of Exhibit 3 as not being properly authenticated in accordance with the procedure set forth in Rule 44 of the Federal Rules of Civil Procedure. Thereafter, on August 23, 1963, the Board ordered the case remanded to the special inquiry officer "for authentication of the exhibits which serve as the basis for the finding of deportability", suggesting that although Rule 44 does not control in an administrative proceeding, the procedure therein set forth should be followed to the extent possible. The hearing was then reopened on November 20, 1963, at which time Exhibit 3A was introduced in evidence. This exhibit is an exemplification certificate (AO Form 132) of the United States District Court for the Western District of Missouri.

Petitioner argues that the exhibit was erroneously admitted "because of the failure of the attesting officer to certify that he has custody of the record of which the exhibits is a copy." The exemplification certificate, attested by the Clerk of the United States District Court for the Western District of Missouri, states in part,

"I, J. C. TRUMAN, Clerk of the United States District Court for the Western District of Missouri, and keeper of the records and seal thereof, hereby certify that the documents attached hereto are true copies of Indictment — FILED June 29, 1950 and Judgment and Commitment — FILED September 29, 1950 in our criminal case No. 17802 wherein the United States is plaintiff and Nagel J. Maroon, also known as Jake Maroon is defendant.

In testimony whereof I hereunto sign my name and affix the seal of said Court, in said District, at Kansas City, Mo., this 11th day of September, 1963."

On the same date, immediately under the foregoing attestation, Judge Floyd R. Gibson, then United States District Judge for the Western District of Missouri, certified that, "J. C. TRUMAN, whose name is above written and subscribed, is and was at the date thereof, Clerk of said Court, duly appointed and sworn, and keeper of the records and seal thereof, and that the above certificate by him made, and his attestation of record thereof, is in due form of law."

Was Exhibit 3 sufficiently authenticated? We think so. We judicially know that "the clerk is the legal custodian of the records in his office". 14 C.J.S. Clerk of Courts § 39, page 1246. "He has custody of the court's records and seals, with power to certify to the correctness of the transcripts from such records * * *". 15 Am.Jur.2d, Clerks of Courts, § 1, page 515. "As a general rule the officer who is required to keep a judicial record is authorized, and is the only person authorized, to give certified copies thereof." 32 C.J.S. Evidence § 665, page 867.

In our view, the Clerk of the United States District Court, who is the "keeper" of the records and seal of his court, is necessarily the "legal custodian" of such records. It follows that the certificate that Mr. Truman is the Clerk of the District Court and the "keeper" of the records and seal of such court sufficiently constitutes a certificate that Mr. Truman has the "legal custody" of the records of that court.

Petitioner cites Chung Young Chew v. Boyd, 9 Cir., 309 F.2d 857, and Mullican v. United States, 5 Cir., 252 F.2d 398, as indicating an opposite conclusion. We do not so read these cases. The reported opinion in Chung Young Chew v. Boyd does not sufficiently enlighten us factually concerning either the official capacity of the attesting officer or the content of his certificate. The court held that "the method (of authenticating the copy of the judgment, sentence and conviction) which was followed provided no assurance that the attesting officer had actual custody of the original record, without which he would not be in a position to make such attestation." We are not advised as to what method was used in that case. Here, the method of authenticating the record does provide adequate assurance that the Clerk of the United States District Court for the Western District of Missouri had actual custody of the original records of that court and that he was in a position to make such attestation.

The other case relied on by petitioner, Mullican v. United States, 5 Cir., 252 F.2d 398, is clearly distinguishable on its facts. One of the exhibits there involved was a group of photostatic copies of documents which were certified by the Acting Director of the Bureau of Prisons to be true and accurate photocopies of documents, the originals of some of which were recited to be on file at the penitentiary in Atlanta, and the original of another was stated to be in the files of the United States Marshal in Houston. Obviously, the Bureau of Prisons did not have actual custody of the files of the United States Marshal. And even as to those documents, the originals of which were in the custody of the Bureau of Prisons, the certificate wholly failed to show "that the copies, from which the photocopies were made, were of themselves official documents, or that they were true copies of the originals." The other exhibit which Mullican held to be erroneously admitted in evidence was a group of photostatic copies of certain documents which were certified by the Chairman of the United States Board of Parole to be "exact copies" of official documents issued by that Board. The certificate "in addition to having some of the infirmities inherent in" the other exhibit, contained no recitation whatever that the officer making the certificate had the custody of the records. However, we find nothing in Mullican holding that Rule 44 mandatorily requires that the specific word "custody" be employed, the court's concern there being with the absence of any showing that the certifying officer had the necessary nexus to the documents. We note that the court also held that proof of conviction was shown by copies of district court records "authenticated by the certificate of the clerk of the court with the seal of the court affixed."

Section 1738, 28 U.S.C., enacted pursuant to the full faith and credit clause of the Constitution, sets forth a method for proving the records and judicial proceedings of the several states, territories and possessions. It is sufficient thereunder that the copies of such records be attested by the clerk with seal of the court annexed, if a seal exists, together with a certificate of a judge...