United States v. Commissioner of Immigration

• Decision Date: 21 July 1930
• Docket Number: No. 403.,403.
• Citation: 43 F.2d 821
• Parties: UNITED STATES ex rel. PALADINO v. COMMISSIONER OF IMMIGRATION.
• Court: U.S. Court of Appeals — Second Circuit

43 F.2d 821 (1930)

UNITED STATES ex rel. PALADINO v. COMMISSIONER OF IMMIGRATION.

No. 403.

Circuit Court of Appeals, Second Circuit.

July 21, 1930.

Alfred S. Perlstein, of Brooklyn, N. Y., for appellant.

Charles H. Tuttle, U. S. Atty., of New York City (Ernest Lappano, Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The relator, Anthony Paladino, was born in Italy, in 1898, and emigrated to this country in 1899. In 1919, he was sentenced by the Court of General Sessions in New York for the crime of grand larceny in the second degree and served a term of fourteen months and twenty days at the Elmira Reformatory. In 1929 he was again sentenced by the Court of General Sessions for the crime of robbery in the first degree to the penitentiary of the county of New York. Each sentence was "indeterminate," in that on its face it specified no definite term and simply read that the defendant should be imprisoned in the designated institution, "there to be dealt with according to law."

The relator was arrested by the Department of Labor on the ground that he was subject to deportation on account of the foregoing sentences, and, after a hearing, a warrant for his deportation was issued. He thereupon sued out a writ of habeas corpus to test the legality of this warrant, and the writ was dismissed by the District Court. He was confined on the second sentence nine months.

Section 19 of the Immigration Act of February 5, 1917 (8 USCA § 155), provides for the deportation of any alien who thereafter is sentenced more than once to imprisonment "for a term of one year or more" because of conviction in this country "of a crime involving moral turpitude." It is not doubted that each of the crimes of which Paladino was convicted involved moral turpitude, and the only question raised on this appeal is whether the second sentence to the New York County Penitentiary was "for a term of one year or more." It seems to be conceded that the imprisonment for fourteen months under the first sentence made the sentence in effect "for a term of one year or more."

In United States ex rel. Sirtie v. Commissioner (D. C.) 6 F.(2d) 233, Judge Campbell held that an indeterminate sentence to the New York City Reformatory should be regarded as a sentence for the maximum term of three years, and dismissed the writ of habeas corpus taken out to test the validity of a warrant of deportation. Judge Hazel, in United States ex rel. Morlacci v. Smith (D. C.) 8 F.(2d) 663, and Judge Woolsey, in the case of United States ex rel. Kiobge v. Day, 42 F.(2d) 716, were of the same mind. The correctness of the foregoing decisions and of the conclusion reached by Judge Coxe in the court below depends upon the proper interpretation and the intended effect of the New York legislation regarding "indeterminate" sentences, which we shall consider accordingly.

The relator insists that an indeterminate sentence to a penitentiary is not a sentence for one year or more according to the New York Law. The law under which he was sentenced is found in sections 4 and 5 of chapter 579 of the Laws of 1915, as amended by Laws of 1916, chapter 287, §§ 3, 4, the material provisions of which are as follows:

"§ 4. After the creation of a parole commission in any of the said cities as hereinbefore provided, any person convicted of any crime or offense upon conviction for which the court may sentence to a penitentiary * * * and who is not insane or mentally or physically incapable of being substantially benefited by the correctional and reformatory purposes of any such institution shall, if sentenced to any institution under the jurisdiction of the department of correction in said city, be sentenced and committed to a penitentiary * * * under the jurisdiction of a department of correction. * * * The term of imprisonment of any person sentenced to any such penitentiary shall not be fixed or limited by the court in imposing sentence. The term of such imprisonment shall be terminated in the manner prescribed in section five of this act and not otherwise, and shall not exceed three years. * * *

"§ 5. The parole commission shall have power * * * to parole, conditionally release, discharge, retake or reimprison any inmate of any penitentiary under the jurisdiction of a department of correction in said cities, committed thereto under an indeterminate sentence, provided the judge or court who made such commitment to such penitentiary or any successor thereof shall, upon recommendation of the parole commission created in pursuance of this act, approve in writing such parole, conditional release or discharge of such inmate."

Indeterminate sentences have long been held sentences for the maximum term for which the defendant might be imprisoned. This is the construction not only placed upon sentences where a maximum and minimum period of imprisonment appears in the sentence, but also upon sentences where no term is mentioned and the statute sets the maximum. People ex rel. Haupt v. Lasch, 122 Misc. Rep. 223, 202 N. Y. S. 416; People ex rel. Clark v. Warden, 39 Misc. Rep. 113, 78 N. Y. S. 907; Ex parte Lee, 177 Cal. 690, 171 P. 958; State v. Perkins, 143 Iowa, 55, 120 N. W. 62, 21 L. R. A. (N. S.) 931, 20 Ann. Cas. 1217; Commonwealth v. Brown, 167 Mass. 144, 45 N. E. 1; Commonwealth v. Kalck, 239 Pa. 533, 87 A. 61; Woods v. State, 130 Tenn. 100, 169 S. W. 558, L. R. A. 1915F, 531; State v. Page, 60 Kan. 669, 57 P. 514; People v. Connors, 291 Ill. 614, 126 N. E. 595; Hulbert v. Fenton, 115 Neb. 818, 215 N. W. 104; In re Smith, 212 Mich. 78, 179 N. W. 346.

It is true that by the joint action of the parole commission and the trial judge the period of imprisonment may be greatly diminished and indeed almost totally abated, but so a sentence of eighteen months by a federal court to the Atlanta Penitentiary may be in effect reduced to six by placing the prisoner on parole after he has served one-third of his sentence. Likewise under the federal Probation Act the execution of a sentence may be wholly suspended even after an affirmance on appeal if the defendant has not begun to serve his term. Yet it can hardly be denied that such a sentence, if in terms for more than a year and for a crime involving moral turpitude, would afford a basis for deportation. Ex parte Wilson (D. C.) 35 F.(2d) 537. In all these cases, the defendant remains subject to the...