Interim Decision #1822
MAR or MoLEAN
In Deportation Proceedings
A-14226402
Decided by Board December 28,1967
(1) Respondent's conviction of issuing Meek with insufficient funds in violation
of section 476a of the Penal Code of California is conviction of a crime involving moral turpitude.
(2) Respondent's conviction of issuing a short check (insufficient funds) in
violation of section 40-14-20 of the Colorado Revised Statutes (1963), is conviction of a crime involving moral turpitude.
(3) A single scheme of criminal misconduct within the meaning of section 241
(a) (4) of the Immigration and Nationality Act does not exist where respondent's two separate convictions for issuing fraudulent cheeks were by two separate courts, in two different states, relating to criminal acts performed three
weeks apart, against different victims, and his inconsistent testimony shows
considerable variance as to the genesis and scope of his criminal activities.
OECAEGE:
Order: Act of 1952—Section 241(a) (4) [8 118.0. 1251(a) (4)]--Convicted
after entry of two crimes involving moral turpitude,
not arising out of a single scheme—issning check without sufficient funds, and short check.
ON RF:Pc ATM OF RESPONDENT: Erick S. Furedy, Esquire
1224 Bannock Street
Denver, Colorado 80204
This is an appeal from the special inquiry officer's decision, finding
respondent deportable as charged, and in the absence of any application for relief, ordering him deported to England.
Respondent is a 23-year-old married male alien, native of England
and citizen of Great Britain. He is separated from his wife and child
and does not know their whereabouts.
At the deportation proceedings, after minor corrections were made
on the order to show cause, respondent conceded the truth of the five
allegations of fact therein. However, he denied deportability upon
two grounds : (1) that the convictions were not for two crimes involv-
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Interim Decision #1822
ing moral turpitude, and (2) that both crimes arose out of a single
scheme of criminal misconduct.
The first conviction was had in the Superior Court of the State of
California, County of Los Angeles. On February 28, 1966, an information was filed against respondent, charging violation of section
476a of the Penal Code, Issuing check without sufficient funds. It is
alleged in the information that on December 24, 1965 and December
27, 1965, respondent
. . . did willfully, unlawfully and feloniously and fraudulently make. draw,
and utter and deliver checks and drafts for the payment of money in excess of the
sum of One Hundred Dollars ($100.00), ]mowing at the time … that he had
not sufficient funds in • • • said bank to meet the said * • checks, drafts
and orders * • * [and] at all of said times having the intent then and there to
cheat and defraud • * •
the three different stores to which he delivered the seven specified
checks. He .originally pleaded "Not Guilty," but on April 20, 1966,
when the case was called for trial, he changed his plea to "Guilty." On
May 19, 1966, judgment was entered:
• • * that the said defendant be punished by imprisonment in the County
Jail of the County of Los Angeles for the term of three hundred sixty days
Sentence .was suspended and probation granted for three years.
Section 476a of the Penal Code of California is entitled "Issuing bank
check with intend to defraud. …" It relates to any person who "with
intent to defraud," makes, draws or utters any check or draft upon a
bank or other depository knowing at the time of making that he has not
sufficient funds for the payment of such check. It is well settled that
where, by statute, the intent to defraud is an essential element of the
bad check crime charged, then moral turpitude inheres in that crime;
cf. Matter of Stasinski, Int. Dee. No. 1476; Matter of Bailie, 10 I. & N.
Dec. 679; Matter of Kinney, 10 I. & N. Dee. 548. Thus, the first conviction was clearly for a crime involving moral turpitude.
On October 28, 1966, a two - count information was filed against
respondent in the District Court, Second Judicial District, State of
Colorado, charging violations of C.R.S. 1963, 40-44-20, as amended,
"SHORT CHECK (FELONY)." The first count alleged that on
December 6 ,1965 respondent, with intent to defraud and deceive, had
made, drawn and uttered a check for $50 or more on IL bank in which
he did not have sufficient funds and had thereby obtained cash and
merchandise from the May D & F Company; the second count alleging
the same basic factors, referred to a second check, drawn on the same
date to the order of the same company, in the amount of $41.05. Judgment on respondent's plea of guilty to the second count was entered on
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Interim Decision #1822
August 16,1967; the first count was dismissed. Probation was denied
and respondent was sentenced to four months in the County Jail.
Section 40-14-20 of the Colorado Revised Statutes, 1963, as amended,
sets forth that the crime of "Short Checks" • is committed by
any person "who with intent to defraud or deceive" makes, draws
or utters a check for the payment of money upon• any bank or other
depository in which he does not have sufkient funds for the payment of
the same, and who thereby. obtains any valuable thing, or issues the
same for payment of services, wages, salary, etc. Thus, by statutory definition, intent to defraud is an essential element, and the crime therefore involves moral turpitude?
By its introduction of the two records of conviction, made in two
separate courts, each in a different•state, relating to criminal acts performed three weeks apart, against different victimiove consider that
the Government presented a prima facia case of deportability under
the charge stated in the order tostow -cans(); of. Matter of Vosvanian,
Dee. No. 1676. Respondent, however, contends that the two convictions arose out of a- single scheme. of criminal misconduct, and has
presented his testimony and -that of his girl-friend, Miss Joan.Peterson,
to show by the evolution, purpose, scope, etc., of his-criminal activities,
that they arose out of a single scheme. - ' . -
As was pointed out in Wood v. Hoy, 266 F. 2d 825, it is incumbent
upon the Government, • if it wishes to have the deportability charge
sustained, to establish that there was•not a single scheme. However, as
was also pointed out in the Wood case, the claim of a single scheme by
the respondent is not conclusive that such a scheme existed. The Government can weaken, modify or lessen the effect of such testimony by
cross-examination or by otherwise impeaching his testimony; the special inquiry officer can find the testimony not tb be credible, or the
premise of a single scheme, under the specified conditions. may be
found too, inherently improbable (cf. Wood v.
Hoy, supra, at 831 et
seq.). It may be found, as a matter of law, that the particular facts
testified to, even if accepted as true, do not bring a particular course of
' Counsel contends that the question of moral turpitude as to the Colorado eonvietton was not properly proved because, citing Title
28 U.S.C., section 1788,
the Colorado Statute was not introduced in sealed authenticated copy. The cited
section relates to the Federal Judiciary and Judicial Procedure. Deportation
proceedings are not judicial proceedings and strict judicial rules of evidence do
not apply ; d. Matter of Pang. Int. Dec. No. 1419; Matter of Argyros, Int. Dec. No.
1677; Matter of Siliasole, Int. Dee. No. 1629; Schwa v. Carmichael,
177 P.
2d 891 (C.A. 9, 1949) ; etc. While introduction of a copy of the Colorado statute
involved would have been helpful, the omission to do so did not prevent the
special inquiry o93cer from taking administrative notice of the statutes of the
state in which the bearing was being held.
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Interim Decision 41822
successive violations of law within the compass of "a single scheme of
criminal Misconduct." (Cf. Castello v. Immigration and Naturalization.
Service, 311 F. 2d 343; reversed on other grounds,
376 U.S. 1 2 0.)
Turning to the record before us, we must conclude that perception
of respondent's activities as a single scheme can only have been achieved
by hindsight. The testimony of respondent and his witness on the single
scheme question, both on direct and cross, indicates considerable variance in genesis, scope, modus operandi and responsibility, for the
check-cashing spree. As to the origin of the activity, at page 6 of the
record respondent testified that he told his girl friend that he was
going to cash a check to get some clothes. At page 29, Miss Peterson
testified that the idea of the checks was hers. At page 6 respondent
testified that the purpose of cashing the cheek was to get clothes so
that he would be well dressed enough to try to find a job in Denver,
but that if he did not find a job in Denver, then he would go to Los
Angeles to try to find employment At page 22, his girl friend testified
that they decided to write checks to get money to go to California,
where he hoped to get a better job. At page 26, she said that she stopped
working in Denver "when we set up the checking account because we
were going to leave."
At page 20, on cross-examination, respondent testified that he opened
an account at a bank in Los Angeles, with the sum of $50, without any
intention of going into fraud, simply so that he would have a, place to
keep his money. At page 21, on redirect, he was asked whether at the
time he opened the account it was not his plan to keep' on writing
cheeks until he got. employment, and he stated that it was. At page 23,
Miss Peterson testified that the establishment of the checking account
in Los Angeles was to obtain money to rent a place for both of them
to stay, -and to• obtain funds until he got employment, and then enlarged further: "YeS, we were both in the same fix. We needed some
decent clothes and decent things bought, so we could get decent paying
jobs."
In Denver, the procedure was apparently for respondent and his
girl friend each to open up an account, and to write checks for each
other, which they could then deposit or cash (Tr., p. 6, p. 21, p. 23),
but in LoS Angeles only respondent could open an account (Tr., p.
21, p. 32); and his girl friend wroteno checks.
These are only a few• of the inconsistencies. If respondent's tes - timonyis considered alonei.th•scheme started with the relatively modest
initial pdrpose of buying clothing presentable enough for job hunting
in Denver, and then burgeoned into the writing of bad checks to derive
the wherewithal to bUY.the, basic necessities for light housekeeping in
Los Angeles for respondent and 14 girl friend, and to take care of
554
Interim Decision' 40822
both of their living expenses until he could find employment, whenever that might be. If Miss Peterson's testimony is considered alone,
respondent had abandoned any intention of remaining in Denver and
the check writing, which was her suggestion, was started for the purpose of amassing enough funds so that they could go to California
together and establish themselves there; once they arrived, having used
up more of their money than they had intended en route, more checks
were needed to pay their rent and clothe them both decently so that
they could both get decent paying jobs.
The only unifying and consistent feature to respondent's activities
is that he needed money and got it by writing bad checks.
Obviously, the existence of such a purpose is too broad a criterion with which
to evaluate the existence of a single scheme. The least that would appear to he
required is the existence of a purpose so definite and limited in scope, both as to
amount and as to time, place and manner of execution, as to make it reasonably
probable that the very crimes for which respondent stands convicted would be
the ones.which he would commit. (Matter of Vossanian. atom)
The Government has established, by skillful cross examination, that
-
there was no such definite and limited plan or scheme here. For the
reasons above set forth, we fmd as a matter of fact and a matter of
law that the two crimes of which respondent has been convicted did
not arise out of a "single scheme of criminal misconduct," as that
criterion is used in the exception to section 241(a) (4).
Counsel, in arguing for the existence of a single scheme, relies heavily on Jeronimo v. Murff 457 F. Supp. 808, and Zito v. If autal,
174 F.
Supp. 531. Neither, it may be noted, is controlling here, Jeronimo
having been decided on the District level in the Second Circuit, and
Zito on the District level in the Seventh Circuit. We are aware of no
reported decisions on this question in the Tenth Circuit, which is where
the deportation proceedings were held. However, neither of the cited
decisions is in point factually. Jeronimo, mentioned with disapproval
by the Second Circuit in
Costello, supra, relied heavily upon the fact
the six counts of larceny (charged in a single indictment in one court)
were characterized in that same indictment as "connected together
and … parts of a common scheme and plan." In Zito (where there
was also a single indictment in one court) the court's finding of resemblance to the Jeronimo case was supported by that fact that the
indictment alleged that all of the acts in the various counts on which
he was convicted were done in furtherance of a continuing conspiracy.
The decision of the special inquiry officer is a.proper one and will be
upheld.
ORDER : It is ordered that the appeal be dismissed.
555
3211-354--69- -37
