Taran v. United States

• Decision Date: 03 June 1959
• Docket Number: No. 15950.,15950.
• Citation: 266 F.2d 561
• Parties: Samuel H. TARAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

266 F.2d 561 (1959)

Samuel H. TARAN, Appellant, v. UNITED STATES of America, Appellee.

No. 15950.

United States Court of Appeals Eighth Circuit.

May 12, 1959.

Rehearing Denied June 3, 1959.

John W. Graff, St. Paul, Minn. (A. Jerome Hoffmann and Hoffmann, Donahue, Graff, Schultz & Springer, St. Paul, Minn., on the brief), for appellant.

Clifford Janes, Asst. U. S. Atty., St. Paul, Minn. (Fallon Kelly, U. S. Atty., and Kenneth G. Owens, Asst. U. S. Atty., St. Paul, Minn., on the brief), for appellee.

Before JOHNSEN, VAN OOSTERHOUT and MATTHES, Circuit Judges.

JOHNSEN, Circuit Judge.

Appellant was found guilty by a jury, on each of the two counts in an indictment, of having violated 18 U.S.C. § 1505.

In general, § 1505 serves a purpose in the administrative field similar to that of §§ 1503 and 1504 in the judicial field. The part of it that is here pertinent deals with contaminations of, or endeavors to contaminate, the administration of the law involved "in any proceeding pending before any department or agency of the United States". More specifically, it creates a criminal offense against "Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede the due and proper administration of the law under which such proceeding is being had before such department or agency of the United States * * *".

Count I of the indictment charged appellant with having corruptly endeavored to influence, obstruct and impede, and also with having succeeded in doing so, the due and proper administration of the law in relation to a deportation proceeding pending against him before the Immigration and Naturalization Service. Count II made a similar charge against him as to the administration of the law relating to a naturalization proceeding, alleged to have been pending before the Immigration and Naturalization Service from the fact that a preliminary application to file a petition for naturalization had been submitted by appellant to the Service.

Appellant is an alien, who had entered the United States as an immigrant in 1912, at the age of 15. He had sought to become naturalized in the federal district court in Minnesota in 1941, but the court had denied his petition on the ground of "bad moral character", in accordance with the report and recommendation of an examiner of the Immigration and Naturalization Service. The court, in a later published opinion, In re Taran, D.C.Minn., 52 F.Supp. 535, set out a list of appellant's numerous conflicts and brushes with the law. Constituting a part of his unsavory record was a conviction and sentence in 1929 in the Minnesota state courts for grand larceny in the first degree. See State v. Taran, 176 Minn. 175, 222 N.W. 906.

Thereafter, in 1945, appellant moved from Minnesota to Florida, where he has since had his residence. In February, 1951, he undertook to submit to the Immigration and Naturalization Service, at its field office in Miami, Florida, upon official Form N-400, as required by 8 CFR 1949 ed. § 370.1, a preliminary application to file a petition for naturalization in the federal district court there.

In submitting the application, he indicated that he would attempt to obtain a pardon from the Minnesota State Board of Pardons on his 1929 conviction, referred to above. The Immigration and Naturalization Service took note of this expressed intention and made return to appellant of his preliminary application on February 28, 1951, stating in its letter that "It is requested that you do not submit the application until all required documents can accompany it". The letter listed, as being required to accompany the application upon its submission, "Pardon for violations in the state of Minnesota", and "Three photographs of yourself", of specified size and pose.

Appellant, however, did not again submit a Form N-400 preliminary application to the Service until February, 1955.¹ This apparently was because the Attorney General had, in June, 1951, after the return of appellant's application to him, as referred to above, issued a warrant of arrest in deportation proceedings against him, under 8 U.S.C. 1946 ed. § 155, which proceedings did not come to have finality and termination until in November, 1954.

One of the grounds for deportation on which the warrant of arrest was predicated was appellant's Minnesota conviction, supra. Another was a claim that, in having gone to Puerto Rico for a week and in returning therefrom to Miami, Florida, in March, 1951, appellant had been guilty of making an illegal entry into the United States.

The first ground asserted was left without any basis on which to proceed, when the Minnesota State Board of Pardons, in October, 1951, granted appellant a full and unconditional pardon "for the crime of which he was convicted and from penalties which he thereby incurred by reason of the law and the conviction and sentence aforesaid". The statute then in effect, 8 U.S.C. 1946 ed. § 155 (a), provided that "The provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned * * * ". A similar exception is contained in the present statute, 8 U.S.C.A. § 1251(b), enacted in 1952, that "The provisions * * * respecting the deportation of an alien convicted of a crime or crimes involving moral turpitude shall not apply (1) in the case of any alien who has subsequent to such conviction been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States * * *".

The only ground therefore that remained under the warrant as a basis for proceeding with the deportation attempt was appellant's Puerto Rico trip. To prevent the order issued on this ground from being carried out, appellant brought suit against the Attorney General in the District Court for the District of Columbia, under the provisions of the Administrative Procedure Act, 5 U.S.C.A. § 1009, and the Declaratory Judgments Act, 28 U.S.C.A. § 2201, alleging that the deportation ordered of him on this basis was unlawful, because his return to Florida from Puerto Rico was not an "entry" into the United States within the meaning and intent of the immigration laws. The court so held and enjoined the Attorney General "from apprehending or deporting the plaintiff upon such basis". This judgment became final in November, 1954, and the deportation proceeding thus came to an end at that time.

The criminal prosecution here involved was instituted in the District Court for the District of Minnesota in September, 1956, alleging that the pardon, which the Minnesota State Board had granted appellant in October, 1951, had been obtained by him through misrepresentation, concealment and fraud against the Minnesota Board. The indictment charged that, in having so obtained the pardon, appellant was guilty, under 18 U.S. C. § 1505, of having corruptly endeavored to influence, obstruct and impede (1) the due and proper administration of the law under which the deportation proceeding pending before the Immigration and Naturalization Service, as referred to above, was being had; and (2) also the due and proper administration of the law under which a naturalization proceeding pending before the Service was being had — the pendency of such a proceeding being claimed to exist from the application to file a petition for naturalization which appellant had submitted in February, 1951, as referred to above. Beyond the charge of his having corruptly endeavored to influence, obstruct and impede, each count further alleged, within the language of the statute, that appellant had also in fact corruptly influenced, obstructed and impeded the due and proper administration of the law under which the proceeding involved was being had. This had reference to appellant's use of the pardon in connection with each of the proceedings.

The misrepresentation, concealment and fraud, which it was alleged that appellant had perpetrated on the Minnesota Board, and which it was claimed had induced the granting of the pardon, was a false statement which he had made in his application for pardon regarding other arrests, indictments and convictions against him. The official application form prescribed by the Board and used by appellant called for information to be set out on various specified matters. Among the things to which answer was to be made was the following printed provision: "6. Has never been arrested, indicted or convicted of any offense except ....................". In the blank space provided for answer, appellant inserted this statement: "Liquor law misdemeanor conviction 15 years ago, and guilty plea to OPA misdemeanor in 1944; charged with minor violations prior but no record of convictions". The Government's evidence established the existence of arrests, indictments and convictions, as set out in In re Taran, supra, 52 F.Supp. 535. It showed also that what appellant had described as "OPA misdemeanor" had consisted in fact of four separate felony offenses.

We turn to a consideration of whether the charges and verdicts before us are entitled to stand.

I.

The deportation-proceeding conviction.

On the facts in the printed record, there was ample probative basis for the jury to believe and find that appellant had knowingly and intentionally misrepresented his criminal record in his pardon application for purposes of the Board's consideration. Whether his statement could unspeculatively be found on the circumstances to have been an influencing factor in the granting of the pardon, so as to be capable of representing operative fraud, might, however, constitute a closer question. But more crucial than this in respect to the deportation-proceeding charge is the question whether it was at all competent in the situation shown for the court to have allowed the jury to make a collateral...