Interim Decision #1793
Kam or NASON
In Deportation Proceedings
A-32126968
Decided by Board September 29,1067
Respondent's conviction on a plea of guilty on April 0, 1065 of willfully and
knowingly devising a scheme to defraud by use of the mails rising a fictitious
name from November 1, 1962 to December 31, 1962 in violation of 18 U.S.C.
1341, and his conviction on the same day, in the same court, on his plea of
guilty: of devising a similar scheme to defraud by use of tho mans using
another fictitious name during the period October 2, through October 24, 1963,
in violation of the same statute—convictions of two crimes involving moral
turpitude—are not convictions arising out of a single scheme of criminal misconduct within the meaning of section 241(a) (4) of the Immigration and
Nationality Act.•
-Cnaton:
Order: Act of 1952—Seetion 241(a) (4) [8 U.S.C. 1251(a) (4) )—Convicted of
two crimes after entry—Devising a scheme to defraud
by use of the mails (18 1341) ; and devising
a scheme to defraud by use of the mails (18 II.S.C.
1841).
ON BEHALF OF RESPONDENT: ON BEHALF OF SE/DUCE:
Rita E. Hauser, Esquire R. A. Vielha.ber
300 Madison Avenue Appellate Trial Attorney
New York, mew York 10017
The case comes forward on appeal from the order of the special
inquiry officer entered April 12, 1967 ordering that the respondent be
deported on the charge contained in the order to show cause.
The case was previously considered by us on June 2, 1966 on appeal
from the order of the special inquiry officer dated January 13, 1966
finding the respondent deportable as charged in the order to show
cause, concluding that the crimes for which respondent was convicted
did not arise out of a single scheme of criminal misconduct and ordering him deported to Canada. In an order of June 2, 1966, after noting
the diversity of holdings regarding the meaning of the phrase "not
•Reaffirmed. See 394 F. 2d 223 (CA. 2 , 1908).
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Interim Decision #1793
arising out of a single scheme of criminal misconduct," we found
that deportability had been established.
The respondent applied for judicial review, Nason v. Immigration
and Naturaliaatirm, Service, 370 F.2d 865 (2d Cir. 1967). The court
held that devising a scheme to defraud by use of the mails was a crime
involving moral turpitude; that the respondent was not entitled to
have a lawyer present at a preliminary interrogation before an investigator of the Immigration and Naturalization Service, and that it was
not error to fail to advise him that he had a right to counsel; and that it
was not error to receive in evidence at the deportation hearing the
respondent's sworn statement made at the preliminary interrogation.
However, the court held that the Board's method of appraising the
evidence was not L satisfactory application of the rule required in
•deportation proceedings of clear, unequivocal and convincing evidence
as held by the Supreme Court in TV oodby v. Immigration and Natura2-
4zation Service,
884 U.S. 904 (1966) ; that it was necessary to decide
the issues on the record as a whole. On March 28, 1967, we remanded
the case for further proceedings in accordance with the opinion of
the court .1
We will briefly review the facts. The respondent, a native and citizen
of Canada, now 81 years old, was admitted to the United States for
permanent residence on April 29, 1961. On April 9, 1965 he pleaded
guilty to three counts of an information in the District Court for the
Southern District of New York for =lawfully, wilfully and knowingly devising a scheme to defraud by use of the mails using the fictitious name of "Charles C. Cole" from November 1, 1962 to December
31, 1902 in violation of 18 U.S.C. 1341. On the same day in the same
court he also pleaded guilty to three additional counts of the information for devising a similar scheme in violation of the same section, using
the fictitious name "Peter Hughes," during the period from October
2, through October 24, 1963. Upon his plea of guilty to these six counts
petitioner was given a suspended sentence and placed on probation for
two years. The special inquiry officer, the Board, and the court found
that each of these crimes involved fraud and hence moral turpitude
within the meaning of 8 U.S.C. 1251(a) (4).
In his order of April 12, 1967 the special inquiry officer compared
the respondent's sworn statement of June 15, 1965 with his testimony
at the deportation hearing on August 8, 1965 and found that the re-
2 We noted the dissent of Chief Judge Lombard who found the evidence as to
deportability to be clear, unequivocal and convincing, and that no testimony could
support the claim that these two felonies, so removed in time, and void of any
conceivable continuity, could have arisen out of a "single scheme" as Congress
intended that phrase.
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Interim Decision #1793
spondent's attempted explanation at the deportation hearing was patently lame, and that the respondent was not a credible testifier in hia
defense, plus the uncontrovertible fact that the frauds were separated
by ten months. The special inquiry officer concluded that the evidencewas clear, unequivocal and convincing that the crimes for which therespondent was convicted did not arise out of a single scheme of
criminal misconduct.
Counsel argues that the evidence relied on by the special inquiry
officer is not enough to meet the very rigorous burden of proof put
on the Government in deportation proceedings by TV ovarby v. Immigration. and Naturalization Service, 384 U.S. 904, and that the special'
inquiry officer erroneously relied on Costello v. Immigration and Naturalization Service,
311 F.2d 343 (2d Cir., 1962), reversed on other
grounds,
376 U.S. 120 (1964). Judge Medina in the N WO% case referred
to the Costello case and stated that the court concluded in the Costello
case that in the absence of any admissible and relevant evidence other
than the records of conviction (Costello did not testify), the special
inquiry officer was required to find that the petitioner had been convicted of two crimes not arising from a single scheme of misconduct.
The court pointed out that in the Nostra ease, by contrast, there was
evidence, other than the record of convictions, which was relevant to
the issue of how many criminal schemes existed.
In the present case, the explanation of the respondent in deportation proeeedings attempting to clarify and to repudiate his statement
of June 15, 1965, was a weak and unconvincing attempt to lessen the
darnagi.ig effects of the statement against respondent's interest contained in Exhibit 4. The special inquiry officer, who had the opportunity to view the demeanor of the respondent when testifying, found
him to be not a credible testifier. It is uncontradieted that the frauds
were separated by a period of ten or eleven months_ In addition, close
examination of the records of conviction show that the counts (1),
(2) and (3) of the information involved a scheme to defraud under
the name of Charles C. Cole; and counts (7), (8) and (9) involved
a second scheme to defraud committed some ten or eleven months
later under the name of Peter Hughes. 2
While we have noted the distinction between this case and the
Costello case, the court in the Costello case 3 clearly indicated its disagreement with the views expressed in the cases collected in footnote 8,
"By contrast, in Jeronimo v. Mattil, 157 P.Supp. SOS, the period of time charged
in the first count encompassed the periods of time of the acts charged in
every one of the other counts, and all the acts constituted parts of a common
scheme and plan. •
'311 F.29 343 p. 848.
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Interim Decision #1793
which are the cases relied upon by counsel. The court in. the Costello
case, the same circuit as in the instant case, noted that the statute
.makes no reference whatever to any "common scheme or plan;" nor
would it seem reasonable to suppose that the Congress intended to
grant immunity from deportation to those who over a period of time
pursued a course of criminal misconduct, involving numerous succesaive, separate crimes, consummated at different times but in the same
manner, or with the same associates, or even by the use of the same
fraudulent devices, disguises, tools or weapons. The court stated that
there was no denying the fact that the Congress by the 1952 Act
intended to make it easier rather than more difficult to deport aliens
who were recurrent criminals.
Upon a full conLideration of all the evidence of record, including
the respondent's sworn statement, his testimony, his attempted repudiation of sworn statement (a statement against interest), the finding
of the special inquiry officer that the respondent was not a credible
testifier, and the record of conviction showing two separate and distinct mail frauds, committed over ten months apart, constituted clear,
unequivocal and convicing evidence that the crimes did not arise out
of a single scheme of criminal misconduct. We kind that respondent is
deportable as charged. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
455
