Pino v. Nicolls

• Decision Date: 08 November 1954
• Docket Number: 4833.,No. 4832,4832
• Parties: PINO v. NICOLLS (two cases).
• Court: U.S. Court of Appeals — First Circuit

215 F.2d 237 (1954)

PINO v. NICOLLS (two cases).

Nos. 4832, 4833.

United States Court of Appeals, First Circuit.

August 2, 1954.

Writ of Certiorari Granted November 8, 1954.

Reuben Goodman, Boston, Mass. (Paul T. Smith and Manuel Katz, Boston, Mass., on the brief), for appellant.

Jerome Medalie, Asst. U. S. Atty., Boston, Mass. (Anthony Julian, U. S. Atty., Boston, Mass., on the brief), for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

Writ of Certiorari Granted November 8, 1954. See 75 S.Ct. 106.

MAGRUDER, Chief Judge.

Anthony Pino, an alien who has been ordered to be deported pursuant to § 241(a) (4) of the Immigration and Nationality Act, 66 Stat. 204, 8 U.S.C.A. § 1251(a) (4), filed in the district court a petition for a writ of habeas corpus. The district court issued the writ, held a hearing thereon, and on February 1, 1954, entered an order discharging the writ and dismissing the petition, with an accompanying opinion coming to the conclusion, as had the Board of Immigration Appeals, that the warrant of deportation had been lawfully issued by the Special Inquiry Officer. 119 F.Supp. 122. Pino's appeal from this order of the district court is docketed in this court as No. 4832. Also, Pino filed in the district court a motion to be enlarged on bail pending appeal. Upon denial of this motion on February 2, 1954, Pino took an appeal (No. 4833) from the order of denial. On March 11, 1954, this court denied an interlocutory motion by Pino asking us to enlarge him on bail pending appeal. 211 F.2d 393. Subsequently, by administrative action of the Attorney General, Pino was admitted to bail pending these appellate proceedings, with the result that the appeal in No. 4833 has become moot and will be dismissed on that ground. However, we still have before us the main appeal in No. 4832, involving the validity of the warrant of deportation.

Appellant was born in Italy, and was brought to this country in 1908 when he was one year old. He has maintained a residence here since that time, but has not become an American citizen.

It appears from the record that a warrant of arrest was issued against Pino on April 20, 1938, in an earlier attempt to deport him under § 19 of the Immigration Act of 1917, 39 Stat. 889 in that, after passage of that Act, the alien had, as alleged, been sentenced more than once to imprisonment for a term of one year or more "because of conviction in this country of any crime involving moral turpitude, committed at any time after entry". This deportation proceeding was based upon (1) a conviction in Massachusetts by verdict of a petit jury on March 20, 1928, for carnal abuse of a female child, for which offense Pino was sentenced on March 29, 1928, to a term of five years and a day in the Massachusetts Reformatory in Concord, and (2) a conviction in Massachusetts on January 6, 1938, following a plea of guilty to the offense of breaking and entering a building in the daytime with intent to commit a felony therein, for which offense he was sentenced to a term of from three to four years in the Massachusetts State Prison, and (3) a conviction in Massachusetts on January 6, 1938, following a plea of guilty to the offense of illegal possession of burglary tools, for which offense he was sentenced to a term of from three to four years in Massachusetts State Prison, to be served consecutively after expiration of the sentence for breaking and entering. For some undisclosed reason, the deportation proceeding dragged on, until finally, on September 6, 1949, Pino obtained from the Acting Governor of Massachusetts and Council a full pardon for each of the two offenses listed in (2) and (3) above. Under § 19 of the Immigration Act of 1917, those pardons cut the ground from under the earlier deportation proceeding; and on October 26, 1950, an Assistant Commissioner of the Immigration and Naturalization Service ordered the cancellation of the warrant of arrest dated April 20, 1938.

Subsequently, on June 27, 1952, Congress passed the Immigration and Nationality Act, 66 Stat. 163, 8 U.S.C.A. § 1101 et seq. making important changes in the requirements for deportation of aliens.

The presently pending deportation proceeding was initiated by a warrant of arrest issued January 5, 1953, and served a few days thereafter. Deportation was sought pursuant to the provisions of § 241(a)(4) of the Immigration and Nationality Act, reading as follows, 66 Stat. 204:

"Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who — * * *

"(4) is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more, or who at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial; * * *."

The proceeding was based upon two distinct convictions for crimes involving moral turpitude, viz., (1) the aforementioned conviction in Massachusetts by verdict of a petit jury on March 20, 1928, for carnal abuse of a female child, for which offense Pino was sentenced on March 29, 1928, to a term of five years and a day in the Massachusetts Reformatory, and (2) a conviction of petty larceny, contrary to Mass.G.L. c. 266, § 30, upon a finding of guilty on January 4, 1949, after trial in the Third District Court of Eastern Middlesex, for which offense the court originally sentenced Pino to a term of one year in the House of Correction. The execution of this sentence was subsequently suspended by the court, and ultimately the sentence was revoked and the case placed on file, without, however, revoking the finding of guilty. Since the sentence of imprisonment was revoked and Pino served no time for this offense, it could not be used as a basis for deportation in the earlier proceeding under the Immigration Act of 1917. See United States ex rel. Robinson v. Day, 2 Cir., 1931, 51 F.2d 1022. But, as above appears, § 241(a)(4) of the 1952 Act provides for the deportation of aliens convicted, after entry, of two crimes involving moral turpitude "regardless of whether confined therefor".

There is no doubt that the requirements of § 241(a)(4) have been satisfied so far as concerns the offense of carnal abuse of a female child. This offense is defined in Mass.G.L. c. 265, § 23, under the caption "Rape of child." There was introduced in the present proceeding a certified copy of a record in the Superior Court for Suffolk County, Mass., from which the following appears: On January 9, 1928, the grand jury handed down an indictment charging that Pino on November 17, 1927, made an assault upon a certain female child under the age of sixteen years with the intent unlawfully and carnally to know and abuse her; and did then and there unlawfully and carnally know and abuse her. Pino pleaded not guilty. After trial, a petit jury returned a verdict of guilty on March 20, 1928. On March 29, 1928, the Superior Court imposed upon Pino a sentence of commitment to the Massachusetts Reformatory at Concord for the term of five years and one day. Though appellant makes some halfhearted contention to the contrary, it cannot now be questioned that this offense properly belongs in the category of crimes involving moral turpitude. Bendel v. Nagle, 9 Cir., 1927, 17 F.2d 719, 57 A.L.R. 1129; Ng Sui Wing v. United States, 7 Cir., 1931, 46 F.2d 755. See also Commonwealth v. Roosnell, 1886, 143 Mass. 32, 8 N.E. 747; Commonwealth v. Murphy, 1895, 165 Mass. 66, 42 N.E. 504, 30 L.R.A. 734; Commonwealth v. Hackett, 1898, 170 Mass. 194, 48 N.E. 1087.

That brings us to one of the more seriously contested points in the case, whether the record in the Third District Court of Eastern Middlesex, duly authenticated by the testimony of the First Assistant Clerk of that court, compels the conclusion, as a matter of law, that within the meaning of § 241(a)(4) of the Immigration and Nationality Act Pino stands "convicted" in that court of a "crime involving moral turpitude". From this record we derive the following: On December 8, 1948, a complaint was filed in the Third District Court of Eastern Middlesex charging that Pino did steal twelve golf balls of value less than one hundred dollars, the property of R. W. Shattuck Co., Inc. Pino pleaded not guilty. On December 23, 1948, the District Court, sitting without a jury of course, found the defendant guilty and forthwith imposed a sentence of imprisonment for one year in the House of Correction. On December 27, 1948, Pino took an appeal to the Superior Court, which appeal, if it had been persisted in, would have entitled Pino to a trial de novo before a jury in the Superior Court. However, on December 28, 1948, this appeal was withdrawn by leave of court. On the same day a motion for a new trial was filed in the District Court and allowed by that court, which thereupon revoked its previous finding of guilty and continued the case for retrial. On January 4, 1949, after a new trial, the District Court again found defendant guilty and again imposed a sentence of one year's imprisonment in the House of Correction. On January 10, 1949, Pino appealed from this second judgment of conviction. But on January 28, 1949, this second appeal was withdrawn by Pino by leave of court and on the same day the District Court either expressly or impliedly reimposed the original sentence of one year's imprisonment in the House of Correction, and suspended the execution of the same to January 30, 1950. Though the formal entries do not so state, we gather from the testimony of the Assistant Clerk that this was automatically equivalent to putting the defendant on probation for one year beginning January 28, 1949. There was a further entry made on...