Z

                              MATTER or Z
                     In DEPORTATION Proceedings
                                  A-4420140
                      Decided by Board October SS, 1858
 Crime Involving moral turpitude—Section 241(a)(4) of the 1952 act—'-Single
    scheme" not established where crimes violating identical statute were separate episodes in continuing criminal plan.
 Slngleschejne of criminal misconduct within meaning of section 243(a) (4) of
   the 1052 act is'not established where respondent has been convicted on two
   counts of an indictment for defrauding the Government of tax on two separate occasions with respect to separate Quantities of alcohol in violation of
   29 U.S.OT S821. Convictions which are the result of separate episodes are
   not part of "single scheme" oven though the episodes occur pursuant to a
   continuing criminal plan or conspiracy. (See note at. end of decision.)
 CHARGE:
   Order; Act of 1952—Section 241(a)(4) [8 L'.S.C- 1251(a) (4)]—Convicted
            of two Crimea involving moral turpitude: Intent to defraud the
            United States erf tax (two offenses).
                         .   BEFORE THE BOARD
   Discussion: This is an appeal from the order of the sj3eci.il inquiry officer finding the respondent deportable on the- ground stated
above and denying his application for discretion/try relief. The
appeal -will be dismissed.
   ^Respondent, a 56-year-old roamed male, a native and citizen of
Italy, last entered the United States in 192S. His deportation is
sought on the ground that after entry he has been convicted of 2
crimes involving moral turpitude "not arising out of a single scheme
of criminal misconduct." The issue is whether the crimes for which
he has been convicted arose out of a single scheme of criminal
misconduct.1 On March -25, 1941» respondent was convicted, upon
a plea, of guilty, on 11 counts of an indictment charging violation
of several provisions of the Internal Revenue laws, and on one
count charging conspiracy to violate provisions- of the' Internal
   1
     Section 241(a)(4) [8 TJ.S.O. 1251(a) (4)] provides in pertinent part: "Any
tfllen in the United States … shall, upon the order of the Attorney General,
be deported who • … at any time after entry la convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether t t e
convictions,were Ui a single trial*
                                      1T0
Revenue laws. H e was sentenced to imprisonment for a term of 8
years and fined $13,000. The Services relies upon the convictions
based on counts 6 and 11. Count 6 charges that respondent and
others removed 200 gallons of alcohol with intent to defraud the
Government of t a s on September 18, 1940, in the County of Sangamon in violation of 26 U.S.C. 3321,1940 ed. Count 11 charges that
on September 9, 1940, the respondent and others committed the
same act in the same county with the same intent in violation of
the same law in connection with 50 gallons of alcohol. Count 12,
the conspiracy count of the indictment, charged that- from April
1938 to the date of the presentment (September 1041) respondent
combined with others to commit the offenses described in the other
11 counts of the indictment and conspired to commit other like
offenses the number of which was unknown. All the allegations
concerning the other counts of the indictment were incorporated by
reference into the conspiracy count.
    The special inquiry officer found t h a t although the respondent
h a d entered into a general conspiracy with others to commit the
offenses charged in counts 6 and 11, the offense in -each of those
counts was a complete, individual, and distinct crime and was not a
p a r t of a single scheme of criminal misconduct. Counsel contends
t h a t the offenses in counts 6 and 11 were committed in pursuance of
the conspiracy .and, therefore, are part of a single scheme of criminal misconduct.. The cose most pertinent of those upon which he
relies is Jeronimo v. Murff, 157 P . Supp. 808 (S.D. N . T . , 1957).
T h e special inquiry officer dismissed Jeronimo from consideration
on the ground that it was decided by a district court in a circuit
other than t h a t which would have jurisdiction of the respondent's
case. T h e Service representative reinforced t h e position of the special inquiry officer but also attempted to distinguish and explain
Jeronimo? Without implying t h a t there is only one answer to the
   'The Service representative argues that Jeronimo does not stand for the
proposition that unlawful acts performed during the existence of a conspiracy
are necessarily committed as part of a single scheme. He believes that in
Jeronimo, the existence of a single scheme was found, not because a conspiracy
existed but because the court found that all of Jeronimo's acts were directed
to a single end. In the instant case, he points out, the Indictment reveals
that respondent conspired to commit "divers" offenses. He stated that this
indicates that the grand Jury "apparently considered that the respondent and
others had conspired to commit several crimes which would differ in character and quality, and not of the same kind." The Service representative also
points out that the conviction on the conspiracy could have benn brought
about by proof of the agreement and the existence of any one of the 20 overt
steps set out (All but one of the overt acts refer to a date other than
September 18 or September 9, 1940, when the acts mentioned in conjita 6 sod
11 were committed. The relation of the overt acts of September 18 and September &, if any, to the acts set forth In counts 6 and 11 is not known.) The
Service representative also relies upon the "very peculiar nod very ..unusual
facts" of Jeronimo.
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question, and whether or not the instant case can be distinguished
 from JerommO) we prefer to base our decision primarily on the
 belief that Jeronimo does not set forth the proper rule.
    Jeronimo had been ordered deported on the ground that he was a
twice-convicted alien. The Court found this to be error. Jeronimo
plotted with others to defraud the City of New York by submitting
 fraudulent claims for payments in connection with painting done
 for the City of New York on contracts which appear to have been
 awarded to him from time to time. He was indicted under an
 eight-count indictment charging bribery, grand larceny, and conspiracy. He was convicted on the conspiracy count, 4 larceny counts
and a bribery count. Each of the larceny counts concerned separate contracts and different properties. All of the contracts were
 with the City of New York. The Service relied upon the 4 larceny
 convictions for the deportation proceedings. The conspiracy count
 charged the existence of a conspiracy from about March 1947 continuously to about January 1949. Nine overt acts in furtherance of
 the' conspiracy were set forth in the count. The remaining counts
 charged grand larceny or bribery. One or more of the overt acts
 set forth in the conspiracy count formed the bases for the other
"counts. One larceny count covered the period from April 1947 to
 October 1£*-S, I t involved an aggregate amount of over $39,000;
 it is based on two of. the overt acts described in the conspiracy
 count. One larceny count covered the period from January 1948
 to September 1948. I t involved an aggregate amount of over
 $43,000; it is based upon two of the overt, acts described in the
 conspiracy count. One larceny count covered the period from about
 June 1948 to about December 1948.. It involved an aggregate
 amount of over $52,00ft; it is based on three overt acts described
 in the conspiracy count. One larceny count covered the period
 from October 1948 to January 1949. I t involved an aggregate
 amount of over $50,000; it is based on two of the overt acts described in the conspiracy count. The concluding paragraph of the
 indictment stated that "All of the acts and transactions alleged in
 each of the several counts in this indictment are connected together
 and constitute parts of a common scheme and plan."
  I n Jeronimo the Government argued that separate crimes do not
arise out of a single scheme of criminal misconduct unless the crimes
were committed pursuant to a single sustained criminal impulse and
that since Jeronimo's larcenies were the result of separate independent impulses, his crimes did not arise out of a single scheme
of criminal misconduct. The Court rules that the existence of the
same criminal impulse was not an indispensible prerequisite to proof
of a single scheme. In finding the existence of a single scheme in
JeronimOj the Court stated:

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  The evidence In the record conclusively establishes that the four larcenies
upon which the proposed deportation Is based arose out of a single continuing
criminal enterprise, (p. 813)
  … The initial formulation of the same subsisting fundamental object and
purpose; the utilization of precisely the same methods and procedures la each
of a series of successive situations to accomplish the original objective; the.
continuously interacting relationship and activities of the same persons who
originated and launched the project; the victimizing of the same person through
all the acts—such evidentiary facts may, in the aggregate, demonstrate the
existence of a single criminal enterprise, project and undertaking. Such Is the
case at bar. (p. 815)
   Jeronimo appears to prevent the use of convictions arising out of
"a single continuing criminal enterprise," without regard to the
time which has elapsed between the criminal acts. In view of the
broad coverage which Congress desired to give the provisions for
the deportation of the criminal classes and in view of the illogical
situation which results from the interpretation, we do not believe
Jeronimo can be followed.
   Congress intended to make the law relating to the deportation of
the criminal aliens broad. The grounds for the deportation of the
criminal were made retroactive in effect and were applicable to the
criminal alien despite the facts that he had'previously been in the
United States legally and his acts occurred prior to the enactment
of the Immigration and Nationality Act.8 The fact that the alien
had been made deportable did not mean that he must of necessity be deported for provision was made for the suspension of his
deportation in the discretion of the administrative authorities and
Congress. Obviously, it was the intent of Congress to bring under
review the desirability of continued, residence in the United States
of persons who had been convicted of crimes involving moral turpitude. The law should not be interpreted in such a manner as to
remove a substantial segment of criminal aliens from such review.
   Jeronimo would remove from liability to deportation the alien
who, by carrying on his crimes over a period of years, revealed that
he was confirmed in his criminality. This interpretation can hardly
be in accord with the intent of Congress to make deportable aliens
who were convicted twice whether or not they were confirmed
  s '<* • • i th e instant bill [H.R 5878] makes the following basic and significant changes: • … 5. Broadens the grounds for exclusion and deportation
of criminal aliens * • "." (H.R. 1365, February 14, 1952, 82d Cong., 2d sesa.,
U.S. Code Congressional and Administrative News, Vol. 3,1952, p. 1679); "This
class of deportable aliens [aliens In section 241(a)(4)] has been modified to
facilitate the deportation of undesirable criminal aliens. Thus, aa alien who
at any time after entry is convicted of two crimes involving moral turpitude
is deportable, regardless of whether confined therefor, whereas under existing
law the alien must have been sentenced to a term of a year or more because
of such convictions … •" (S.R. 1187, 82d Cong., 3d sess., p. 21; see paragraph
entitled "Stricter Construction," p. 61, 8 U.S.O.A,; Lvlimmn v. United State*
ea ret. Oargon, 

).
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criminals. A brief bit. of history will be helpful at this time. The
law previous to the section in question was interpreted as requiring
the deportation of the twice-convicted alien who after entry had
shown himself to be a criminal of a "confirmed" type.* Since the
"repeater" is the plainest confirmed type, the Supreme Court held
that Congress intended to deport the twice-convicted alien only if
the alien after conviction and incarceration once again committed
a crime involving moral turpitude and was again convicted and
incarcerated.0 The changes brought about by the Act of 1962 show
that Congress wished to make liable to deportation not only the
confirmed criminal but also any alien who committed two crimes
after entry, so long as the crimes did not arise out of a single
scheme of criminal misconduct. Thus, Congress eliminated the requirement that the. twice-convicted alien had to be sentenced to
imprisonment for a year or more; it eliminated the requirement
that the alien had to be confined; and it eliminated the requirement
that the second conviction had to follow a confinement. As we
have previously mentioned, it made the law retroactive. In view
of this attempt to subject the twice-convicted alien to deportation
whether or not he was a confirmed criminal, it would appear contrary to the intent of Congress to so interpret the law as to permit
the one whose violation of law may extend over a long period of
time and who may have engaged in a series of criminal acts, to
escape from liability to deportation merely because he had dedicated
himself in advance to a course of certain criminal conduct with
others against the same victim. Especially difficult is it to accept
this exemption when it is considered that a conspiracy is an offense
of the "gravest character, sometimes quite outweighing in injury
to the public, the mere commission of the contemplated crime."*
   If Jeronimo had *iot been charged with conspiracy, but merely
with the substantive crimes, would he have been deportable as a
twice-convicted alien! We have' set forth the test announced by the
Court concerning the manner in which evidentiary facta may establish the existence of a single scheme. Under this test, it is possible to argue very convincingly that' the Court would have been
•hie to reach the same result it did. Jeronimo will make most
difficult the application of the immigration laws to the twice-convicted alien who has committed similar offenses against the same
victim.
   Let us consider the incongruous situation which arises if the
section is interpreted to exclude from liability to deportation the
alien who committed his crimes in the course of a conspiracy or as
  'Section 19(a), Act ot February 5, 1&17 (89 Stat 874).
  o Fong Bow Tan v. PhtXan, 

.
  * United States v. RaUnowich, 

; Untied States v. Lancaster, 

 (O.O. 6a., 1801).
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 a result of an intent to victimize the same individual Alien 1, a
young man falling in with evil companions, robs B and five minutes later robs C. He is apprehended and convicted of both robberies. He never again becomes involved with the law. Alien 2,
 alone or in conspiracy with others, carries on a scheme to defraud
 or rob the same victim over a period of many years. Many criminal acts are committed. Alien 1 is subject to. deportation. Under
 Jeronvma, alien 2, a confirmed criminal, is free from liability to
 deportation. Congress could not have intended such an illogical
 result.
    I t is true that where language in a deportation statute is susceptible to more than one interpretation, that most favorable to the
 alien should be taken. However, such a rule should not apply
 where the favorable rule prevents a reasonable interpretation of the
 statute in the light of the general scheme, while the strict, view
 permits the general scheme to be effectuated. The statute should be
 interpreted to include the greatest number of twice-convicted aliens.
 This can be done, and the clause in question can at the same time
be given effect by exempting the twice-convicted criminal whose
acts are essentially one act. We believe that this test has been the
basis of administrative and judicial rulings holding that a single
scheme existed. Thus, the following have been held to be single
schemes: Convictions based upon the same act (counterfeiting and
possession of counterfeit money); convictions based upon an aggregate of acts occurring at the same time (convictions for indecent
fondling of two minors in the same room at the same time); convictions based upon closely connected acts performed at about the
same time to bring to fruition some immediate criminal purpose,
 (breaking and entry of a bank and assault upon a bank watchman).
   We do not think it unreasonable to limit the exemption from
deportation to the categories we have stated (and such other related
ones as the future may develop) in view of the desire of Congress
to extend its control over the criminal alien. This interpretation
is logical to the extent that it makes the intrinsic nature of the
criminal conduct the test rather than the manner in which an indictment may be drawn up or the fact that the alien confined his
acts to one victim pursuant to a preconceived plan.
  I t seems to us that certainty and consistency require that interpretations of the phrase "single scheme" be based upon some common ground. There is a common ground in decisions which find a
single scheme in acts which constitute but one criminal episode. The.
cases except for Jeronimo have refused to find the existence of a
"single scheme" unless one act was involved, or those which were
done were so related in time and purpose as in reality to constitute
but one separate episode. The fact that different victims wore in-

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volved or that the episode .was but part of a continuing plan which
resulted in the birth of other episodes was not considered material.
There is no common ground between these cases and one which considers as part of a single scheme the many episodes which are the
result of a continuing agreement to engage in many episodes. This,
we think, weakens the cogency of the decision in Jeronimo, for there
should be a pattern; if Jeronimo does not fit into the pattern which
it is agreed must result in a single scheme, then Jeronimo does not
state a correct rule of law.'
   We conclude that this record establishes the existence of two independent criminal acts so separated by time that they constitute
individual episodes and so do not constitute a single scheme of.
criminal misconduct. Deportability is established.
   The respondent has applied for preexamination or suspension of
deportation under section 244(a) of the Immigration and Nationality
Act (8 U.S.C. 1254(a)). Respondent's age, his length of residence
in the United States, the fact that his wife is a native-bom United
States citizen whom he married in 1935, and the presence of siblings in the United States, make it proper to find that his deportation would result in hardship required to qualify for suspension
of deportation. However, we believe that his applications should
be denied. This is for the reasons given by the special inquiry
officer and because the record creates a substantial doubt as to
whether the respondent has been candid with the Government concerning his financial ability to pay his indebtedness to the Government, and his participation in gambling activities; and because
this very lack of candor prevents him from hearing his burden of
establishing that he merits discretionary relief. The full facts concerning discretionary relief have been set forth by the special inquiry officer and it is unnecessary to repeat them. In reaching our
conclusion we have carefully considered the entire record, including
the brief submitted on appeal, the affidavits of record and the oral
argument of counsel, including his statement that respondent's
difficulty arises out of his inability to express himself. No change
should be made in the order of the special inquiry officer.
   Order: It is ordered that the appeal be and the same is hereby
dismissed.
  Editor's Note: Motion for summary Judgment was filed with the United
States District Court for the Northern District of Illinois, by the subject alien
on January 22, 1959. In a memorandum decision rendered by the Court on
March 81,1999, in the subject action, Zito v. Uov&al, 

, motion
for summary judgment was granted and the outstanding order of deportation
In the case waa declared null and void -as not deemed to he based on sufficient
evidence.



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