Interim Decision #2011
MATTER OF GUTNICK *
In Deportation Proceedings
A-13438882
Decided by Board October 30, 1969
Where respondent, having a general plan to burglarize cars in different cities over a two-week period, was apprehended in the act in his first attempt in Phoenix, Arizona on February 29, 1969, was jailed overnight,
given a hearing and released on bond the following day, and six days
later on March 6, 1969 in a different city (Tucson) he burglarized another
car belonging to a different individual, his convictions for the two crimes
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.
31-IARGE :
Order: Act of 1952—Section 241(a) (4) (8 U.S.C. 1251(a) (4) ]—Convicted
of two crimes involving moral turpitude: burglary
from vehicle and burglary, first degree.
N BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Ruben Montemayor, Esquire R. A. Vielhaber
1414 Tower Life Building Appellate Trial Attorney
San Antonio, Texas 78205 Bernabe Q. Maldonado
Trial Attorney
(Brief filed)
Respondent appeals from the order of the special inquiry officer
quiring his deportation on the charge stated in the caption. The
peal will be dismissed.
Respondent, a 38-year-old single male, a native and citizen of
nada, was admitted . to the United States for permanent resiice in 1963. From 1964 to 1968 he made short business and
asure trips to Canada. He last returned from such a trip in
Member 1968.
respondent's deportation is sought because he was twice coned of crime. The issue is whether the crimes arose out of a
The alien in this case is also the subject of Interim Decision No. 2075.
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Interim Decision #2011
single scheme of criminal misconduct. Respondent's testimony
concerning the convictions follows: On February 29, 1969, after
he and his friends, Levy and Knight, decided to burglarize autos
in Phoenix, Casa Grande, Tucson and Nogales over a two week
period using master keys for entering certain models of Fords
and Cadillacs (pp. 22, 32, 34, 63, 70-72, 79, 80), they broke into
a Cadillac in Phoenix. The police apprehended them in the act,
and jailed them overnight. The next afternoon, they were given a
hearing and released on bond (p. 20). They left Phoenix that evening to escape police surveillance. After the first arrest, Levy
would not go on with the plan (pp. 36, 48), but respondent and
Knight continued with it (pp. 66-67, 73). The following day they
went to Casa Grande. Unsuccessful after a two day search, in
finding the kind of cars they were interested in (pp. 24-25,
36-37, 48-49), they went on to Tucson, the next city on their
list. They arrived there about the third or fourth of March. They
visited with a friend. On March 6, they burglarized another Cadillac. Shortly thereafter, they were caught by the police (pp. 38,
24-25, 68). The two cars entered did not belong to the same individual. Tucson is about 120 miles from Phoenix.
On November 6, 1968, respondent was tried in Phoenix for the
first offense. He entered a plea of guilty to burglary from a vehicle. The imposition of sentence was suspended and he was placed
on probation fOr 13 months (Ex. 3). On November 19, 1968, he
was tried in Tucson for the second offense. He entered a plea of
guilty to burglary in the first degree. Imposition of sentence was
suspended and he was placed on probation for three years (Ex.
4). The court in sentencing respondent stated that "to some extent [respondent was] on a spree and these were two separate
acts (Ex. 5, p. 6)." The court also stated that one of his reasons
for putting the respondent on probation was that the judge who
presided in the first case put him on probation "for a part of this
same series" (Ex. 5, p. 11).
The first question is whether there was a general plan to burglarize cars. The trial attorney questions the existence of such a
plan. The special inquiry officer, finding respondent's testimony
self-serving and contradictory, apparently concluded a general
plan did not exist. We find that while there was no plan to burglarize a car owned by any particular person, respondent and his
friends did plan to enter certain models of Cadillacs and Fords
for which they had master keys, during respondent's two weeks
vacation. The inconsistencies relied upon by the special inquiry
officer are not of a substantial nature nor were they brought to
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Interim Decision #2011
the respondent's attention for comment. Moreover, respondent
consistently testified that there was a plan.
A question exists as to whether the original plan was aborted
and supplanted by a new one after respondent had been arrested
and released on bond. Was the second crime the result of a new
plan or a continuation of the first? The respondent testified that
after the first arrest Levy withdrew, but that he and Knight continued with their original plan without any discussion (pp.
67-73). He answered in the affirmative a question by the Trial
Attorney as to whether, after he had been caught the first time,
he believed that it would be the last time he would be in trouble.
He agreed with the statement by the Trial Attorney that after
the arrest he decided to start anew and to live a clean life (p. 22).
This would indicate that he mentally withdrew from the plan and
only later again associated himself with it. When this was called
to his attention, he explained that he gave no thought to repentance or to the plan while he was in jail because he was occupied
only with thoughts of getting out of jail. He also said that he did
think it would be the last time he would be in trouble. His further attempt to explain was barred by the special inquiry officer
(pp. 77-78). Tinder these circumstances we do not believe it is
)roper to draw an adverse inference from this apparent conflict.
We have concluded that respondent had a general plan to burlarize cars in different cities over a two week period. This does
tot mean that we must find that his crimes arose out of a single
cheme. The problem of determining the existence of a single
cheme is discussed in Nason v. INS., 394 F.2d 223 (2 Cir.,
968), cert. denied
393 U.S. 830 (1968). The court dismissed the
Aition of Nason who sought to upset a deportation order based
i his conviction of crimes involving two periods of mail fraud
tivity separated by an interval of over nine months. The court
ated :
.titioner's nebulous intention to repeat his crime with the same or other
aims some day in the indefinite future, will not bridge the gap of nine
)nths. The word "scheme" implies a specific, more or less articulated and
ierent plan or program of future action, much more than a vague, inde-
-rninate expectation to repeat a prior criminal modus operandi. As used in
statute, "scheme" is not to be construed as an abstract concept or stratcapable of future application at any time and any place, but planned
initely for none. It is here, especially, that Nason's stress on the similarbetween the two crimes misses the mark. It should be noted that the
tute does not speak in terms of a "common scheme or plan." The improety of such a test is readily apparent for it could be invoked to save an
.11 who repeated a successful crime already tried and had the good fore to employ not only the same methods, but also to have chosen the same
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Interim Decision #2011
or a similar victim. Congress meant to give the alien a second chance, not to
spare the recidivist. See Costello, supra, 311 F.2d at 348. Under the circumstances of this case, petitioner cannot with grace urge that he was not given
that second chance. (at p. 227).
The problem was also discussed in Costello v. INS, 311 F.2d
343 (2 Cir., 1962), reversed on other grounds,
376 U.S. 120
(1964). Costello was unsuccessful in contending that two convictions for violation of income tax laws in successive years arose
out of a single scheme. The court pointed out that there was no
connection between the two crimes. The court said :
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 successive, 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. Nor in the case of successive bank robberies at
different times and places, for example, would it seem that these could be
said to have arisen out of a single rather than two separate schemes of
criminal misconduct, simply because the robbers, prior to the first robbery,
had in mind and had discussed the robbery of the second bank after the hue
and cry over the first robbery had subsided (Dicta, at p. 348).
Using the tests set forth in
Nason, supra, and in Costello, supra,
we find that respondent's crimes did not arise out of a single
scheme. There was no concrete strategy planned for a certain
time and place. Respondent's intent to rob cars was a nebulous
one. He had no specific owner, no specific car, no specific time,
and no specific limited area in mind. His was only a strategy capable of future application at a nonspecific time and place within
a two-week period.
Nor do the crimes committed evidence the existence of a single
scheme. They did not arise out of the same act or transaction.
They were not part of a successive series of uninterrupted
crimes. An arrest, detention, hearing and posting of bond intervened between the two crimes. Days passed between them. The
second was the result of a random search in two different cities
before it was committed. The crimes were not related or connected. The owners of the cars were not the same. The cars were
not the same. The locale was not the same.
Moreover, as the quotation from
Nason, supra, points out, the
reason for the single scheme exception is to give an alien a second
chance. Respondent had a second chance. His arrest, detention,
hearing, and release on bond; his being followed by the police—
all these should have told him he was free to withdraw from his
plan and that he did not have to commit the second crime.
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Interim Decision #2011
Cases cited by counsel are distinguishable. In Nason, supra, the
court pointed out that Jeronimo v. Murff,
157 F. Supp. 808 (S.D.
N.Y., 1957), involved a conspiracy charge. This factor is not
present here. Furthermore, Nason points out that Jeronimo does
not go beyond what is said in Nason. The test in Nason clearly
reveals that the instant case does not involve a single scheme.
Sawkow v. INS, 314 F.2d 34 (3 Cir., 1963), indicates that
there is a possibility that crimes committed within minutes of
each other arose out of a single scheme. Here the time interval
and other factors clearly establish there is no connection between
;he two crimes.
Chtown Din Khan v. Barber, 253 F.2d 547 (9 Cir., 1958), cert.
lenied
357 U.S. 920 (1958), supports our position. There similar
rimes (tax frauds in successive years) were held not to arise out
f a single scheme because the record did not establish that they
ere connected.
Wood v. Hoy, 266 F.2d 825 (9 Cir., 1959), involved two robbers committed within three days of each other. There was unrested evidence that the specific crimes were planned in advance:
Te have pointed out that here there was only a general plan.
Zito v. Moutal, 174 F. Supp. 531 (D.C. Ill., 1959), involved
,les of liquor with intent to defraud the United States. They
ere connected since they arose out of the operation of an illegal
tsiness.
Counsel contends that an error was committed in admitting the
iminal records (Exs. 4, 5) showing that respondent had been
-Meted of the crimes, because the court records of the convicns were not authenticated under Rule 44, Federal Rules of
ril Procedure, which requires the record be made by its cusian and that it be accompanied by a certification to that effect.
records here are made by the deputy clerks of the courts inved. Each clerk certified that the record was a true copy of the
final. Each copy bears the seal of the court. There is no certition that the clerk has custody. Counsel contends that the
ure to have such a certification made the records inadmissible.
contention must be dismissed. As the trial attorney has
ated out, deportation proceedings are not controlled by Rule
The question in the deportation proceeding is whether readent has had due process; or to be specific here, whether the
iinal records correctly reflect the facts. Counsel points to no
r in the records. At the hearing, he stipulated the correctness
he facts incorporated in the criminal records concerning the
ictions (pp. 2-3). He offered a transcript of proceedings re-
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Interim Decision #2011
lating to the second crime (Ex. 5). The respondent admitted the
facts concerning the convictions which are stated in the criminal
records (pp. 8-12). We find no error committed in the receipt of
this evidence. Maroon v. INS, 364 F.2d 982 (8 Cir., 1966). See
Matter of Argyros,
11 I. & N. Dec. 585 (BIA, 1966) ; Matter of
Pang,
11 I. & N. Dec. 489 (BIA, 1966).
We note the trial attorney's effective brief.
ORDER : The appeal is dismissed.
417
