In re McNeil, 35041.

• Decision Date: 14 April 1936
• Docket Number: No. 35041.,35041.
• Court: U.S. District Court — Northern District of California
• Parties: In re McNEIL.

14 F. Supp. 394

In re McNEIL.

No. 35041.

District Court, N. D. California, S. D.

April 14, 1936.

Chauncey Tramutolo, of San Francisco, Cal., for petitioner.

Paul Armstrong, Asst. Dist. Director, Immigration and Naturalization Service, of San Francisco, Cal., for the United States.

ST. SURE, District Judge.

John McNeil entered the United States for permanent residence on June 10, 1924. In February, 1927, he was indicted for felony embezzlement. Upon advice of counsel he pleaded guilty in the state superior court, and applied for probation, which was denied. He was sentenced to an indeterminate term of imprisonment in the state penitentiary. In February, 1929, he was paroled. On January 26, 1932, he was granted an unconditional pardon by the Governor. He filed a petition for citizenship in this court on November 27, 1935, three years and ten months after termination of parole by pardon.

Applicant states that he was ill-advised when he entered a plea of guilty to the felony charge, that he never received a cent of the money which was the subject of embezzlement, and that his guilt, if any, was purely technical. These claims of the applicant are undisputed; the government admitting that there was no criminal intent in the commission of the offense charged.

The government moves to dismiss the petition upon the ground that applicant cannot comply with the requirement of the naturalization law (Act June 29, 1906, § 4, subd. 4, as amended by Act March 2, 1929, § 6 (b), 45 Stat. 1513, 8 U.S.C.A. § 382), which provides that "No alien shall be admitted to citizenship unless (1) immediately preceding the date of his petition the alien has resided continuously within the United States for at least five years * * * and (3) during all the periods referred to in this section he has behaved as a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States."

It is the contention of the government that "good moral character contemplated by the naturalization law can only be established by an applicant for citizenship during such period as the applicant is a free moral agent with the same liberties and the same limitations which are the common lot of other residents"; that a prisoner on parole is still serving a part of his sentence, the bounds of his confinement having been merely enlarged (Pen.Code Cal. § 1168); that, while a full executive pardon relieves the offender from punishment and blots out his guilt (Ex parte Garland, 4 Wall.71 U.S. 333, 380, 18 L.Ed. 366; Knote v. United States, 95 U.S. 149, 153, 24 L.Ed. 442), it does not change the past nor annihilate the fact that he was guilty; the effect of the pardon is prospective rather than retrospective (In re Spenser, 22 Fed.Cas. page 921, No. 13,234); and that therefore the applicant cannot be heard upon a petition for citizenship until five years after termination of parole.

The contention of the government must be sustained. The statute expressly fixes a period of five years during which it is incumbent upon the applicant for citizenship to prove to the satisfaction of the court that he has behaved as a person of good moral character, is attached to the...