MArrEn OF S—
In DEPORTATION Proceedings
A-8089783
Decided by Board April 19, 1962
Recommendation against deportation—Section 241(b), 1952 act—Not effective
following resentencing for sole purpose of making recommendation — Deportation — Section 241(a)(4)—Single scheme.
(1) A new Jersey court vacated two 1960 convictions; in lieu thereof accepted a plea of non vuit to one; and, in an order dated March 30, 1961,
zentencing respondent to an iraleLetathiale term, recommended against deportation. Since sole stated purpose of court's action was to correct failure
to make timely recommendation against deportation, such recommendation
is ineffective under section 241(b) of 1952 Act.
(2) Convictions for illegal possession of one person's automobile and for stealing the automobile of another person on different dates permit the normal
Inference that different crimes committed at different times against different persons are not part of a single scheme of criminal misconduct. In the
absence of evidence to the contrary and in light of respondent's refusal to
testify such convictions establish deportability under section 241(a) (4) of
the 1952 Act.
CHARGES:
Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)]—ConvIcted
of two crimes after entry, to wit: grand larceny and grand
larceny.
Lodged: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)7—Convicted
of two crimes after entry, to wit: grand larceny and grand larceny; robbery while armed and possession of (stolen) motor
vehicle.
Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—Convicted
of two crimes after entry, to wit: grand larceny and grand larceny; robbery while armed and possession of (stolen) motor
vehicle, and robbery.
BEFORE THE BOARD
DISCUSSION: The case comes forward on appeal by the examining officer from the decision of the special inquiry officer dated
November 13, 1961, ordering the proceedings terminated.
The record relates to a native and citizen of Poland, 21 years old,
male, single, who last entered the United States on August 24, 1951,
ex USNS Gen. 1?. M. Macleh ford and was admitted as an eligible die-
613
placed person under section 2(c) of the Displaced Persons Act. The
original order to show cause was served on the respondent on August
11, 1960, and charged him with being subject to deportation under
section 241(a) (4) of the Immigration and Nationality Act in that
after entry he had been convicted in the County Court of Hudson
County of two crimes involving moral turpitude not arising out of a
single scheme of criminal misconduct, to wit, grand larceny on October 17, 1958 (Indictment 31-58), and grand larceny on April 14,
1960 (Indictment 28-59). The crimes were committed in July of
1958 and February 1959 and involved motor vehicles which were the
property of different persons. On October 13, 1960, the special inquiry officer ordered the respondent deported on the charge stated in
the order to show cause. On December 20, 1060, the special inquiry
officer granted a motion to reopen, the motion containing a copy of
an order entered by a judge of the Hudson County Court, Law Division, vacating and setting aside the plea, sentence, and thus, the
conviction of one of the two offenses which formed the basis of the
deportation proceeding.
At the reopened hearing the five convictions, all in the Hudson
County Court, Jersey City, New Jersey, which were used to support
the deportation charges had developed into the following postures:
(1) Indictment No. 31-58 charged the respondent with grand
larceny in violation of N_J_S_A. 2A_ :119 2, committed July 18, 1958,
-
in Bayonne, New Jersey, involving the theft of a motor vehicle of
"VV—H—. The respondent was convicted upon his plea of non vult
and on October 17, 1958, was sentenced to an indeterminate term at
the New Jersey State Reformatory, sentence suspended and respondent placed on probation for a period of 3 years.
(2) Indictment No. 30-58, charged the respondent with possession
of a stolen motor vehicle in violation of N.J.S.A. 2A:139 3, com-
-
mitted on July 17, 1958, involving the possession of the motor vehicle
of R—S , knowing the said motor vehicle to have been stolen. The
respondent was convicted upon his plea of non volt and on October
17, 1958,- was sentenced to an indeterminate term at the New Jersey
State Reformatory, to run concurrently with the sentence imposed
upon Indictment No. 31-58, supra, sentence suspended and respondent
placed on probation for a period of 3 years.
(3) Indictment No. 27-59 charged the respondent with robbery
while armed in violation of N.J.S.A. 2A :141-1, 2A:151-5, and
2A ;90 2, committed. February 13, 1050, involving the robbery, while,
-
armed, from C—G— of S500 in cash. The respondent was convicted on February 29, 1960, upon his plea of non vult solely of that
portion of the charge which related to robbery, the "while armed"
portion of the charge being dismissed, and was sentenced to the New
Jersey State Reformatory for an indeterminate term not to exceed
014
5 years. On November 2, 1960, the sentencing judge vacated and
set aside the respondent's plea of non vult and the sentence which
had been imposed, reinstated the charge of robbery in violation of
N.J.S.A. 2A :141-1 and di]., en1. the entrance of a plea of not guilty
to the charge. On Man -h 19G1, the judge directed the dismissal
of the indictment„
(4) Accusation No. 85-60 charged the respondent with robbery in
violation of N.J.S.A. 2A:141-1. committed February 13, 1059, in
Jersey City, New Jersey, involving the robbery from C G— of the
sum of $500. On February 20, 1961, respondent entered a plea of
non unit to the accusation, having waived indictment and trial, and
on March 30, 1961, was sentenced to an indeterminate term to the
New Jersey State. Reformatory not to exceed 5 years, respondent to
given credit for time already spent at the New Jersey State, Reformatory under Indictments No. 27-59 (eupow) and No. 28-59
(infra) and the time which he had already spent in the Hudson
County Jail. A motion made by respondent's counsel that, the court
recommend against deportation by reason of this conviction was
opposed by a representative of the United States Attorney's office
but was granted by the court. (Proceedings pursuant to Indictment
No. 27-59 and Accusation No. 85-00 have been set out in direct succession in order to demonstrate the same crime against the same
person was involved in both convictions.)
(5) Indictment No. 28-59 charged respondent with grand larceny
of a motor vehicle in violation of N.J.S.A. 2A :119-2, committed on
February 13, 1959, in Jersey City, New Jersey, involving the - theft of
a motor vehicle of J—A--. The respondent was convicted upon his
plea of non vult on April 14, 1960, was sentenced to the New Jersey
State Reformatory for an indeterminate term not to exceed 3 years,
to run concurrently with the sentence imposed on Indictment No.
27-59, ,vapra. On November 2, 1900, the sentencing judge vacated
and set aside the respondent's plea of non vult and the sentence which
had been imposed, reinstated the charge of theft, of a motor vehicle
in violation of N.J.S.A. 2A:110-2, directed the entrance of a plea
of not guilty to the charge and on March 30, 1961, the some judge
directed the dismissal of the indictment.
The County Courts order of November 2, 1960, vacating the convictions under Indictments No. '27-5.9 and No. 28-59 was made pursuant to the authority contained in N.J.R.R. 3:7-10(a) which provides:
A motion to withdraw a plea of guilty or of not conterdere or of non volt,
may he made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice, the Court, after sentence, may set
aside the judgment of conviction and permit the defendant to withdraw his
plea.
615
The examining officer in his brief has cited a number of New
Jersey court cases in which the "manifest injustice" mentioned in
N.J.R.R. 3:7-10(a) involved instances in which the defendant was
denied due process in the State court, such as appearance or entering
a plea without representation by counsel, lack of ability to comprehend the nature of the charges in the proceeding, and otherwise
involving a violation of the defendant's constitutional rights. However, since such a motion is addressed to the discretion or conscious;
of the court, it cannot be said that the court lacked jurisdiction
to grant the motion to vacate as pointed out by the special inquiry
officer. 1 The difficulty arises not with the jurisdiction of the State
court to grant the motion to vacate but the attempt of the State
court to invade an area to which Congress has seen fit. to erect or
impose a federal standard in regard to recommendations against
deportation as provided in section 241(b) of the Immigration and
Nationality Act. We find that in intruding into this federal area,
the court's action was ineffective for reasons which we will now
develop.
Accusation No. 85-60 arose out of the same facts which constituted
the basis for Indictment No. 27-59; i.e., the robbery of $500 cash
from C—G— committed February 13, 1950, in the City of Jersey
City, New Jersey. Indictment No. 27-59 had resulted in the respondent's conviction on his plea of non 'twit on February 29. 1960, to the
indictment which related to robbery, the "while armed" charge being
dismissed. Subsequently, on November 2, 1960, the sentencing judge
vacated and set aside respondent's plea of non vult and the sentence
which lied been imposed, reinstated the charge of robbery in violation
of N.J.S.A. 2A:141-1, directed the entrance of a plea of not guilty
to the charge and on March 30, 1961, directed the dismissal of this
indictment. Accusation No. 85 - 60 revived the charge which consisted of the same factual allegations, minus the "while armed"
charge, to which respondent entered a plea of non 'vull on February
20, 1961, and on March 30, 1961, was given the same sentence of an
indeterminate. term at the New Jersey State Reformatory not to exceed 5 years to which he had previously been sentenced under Indictment No. 57-59; and the court, upon motion by counsel after due
notice to the United States Attorney's office, granted the motion and
recommended against deportation.
It is difficult to perceive how Accusation No. 85-60 can be divorced
from No. 27-59, both alleging the same overt act and the same violation of law and involving the same defendant and the same victim.
The "manifest injustice" referred to by Judge, Duffy of the Hudson
Con Ity Court in his order of November 2, 1960, that the defendant's
of non exult heretofore entered on February 29, 1960, in response
-- --
1 itri f of H--, 9-380; Matter of H—,
616
to Indictments Nos. 27-59 and 25-59 and the sentences imposed as a
result thereof on April 14, 1960, be vacated as if never entered was
made for the specifically-stated reason that the court was not aware
(at the time of first sentencing) that the defendant was subject to
deportation as an alien, did not consider that the. defendant was
faced with additional penalty of deportation and that it would be
manifestly unjust to subject the defendant to the additional penalty
aforesaid. This reason alone, the added penalty of deportation and
no other, is given in the order to constitute the "manifest injustice"
in the order to vacate and set aside pursuant to R.R. 3:7-10(a).
This subject was considered by the Attorney General in Matter of
P—. 9 - 293 (May 24, 1961). In that case the respondent was convicted of disorderly conduct in violation of section 722(S) of the
Penal Law of New York in September 1954 and again in March
19;59, both offenses involving moral turpitude. The 1959 conviction was set aside by the New York Trial Court on a writ of error
coram nobis- and on October 2, 1959, the respondent was retried and
again convicted on his plea of guilty and at this second trial the
court recommended against deportation. The question was whether
the recommendation at this time of the court against deportation met
the requirement of section 241(b) that to be effective it must be made
"at the time of first imposing judgment or passing sentence." Reliance was had upon United States ex rel. Piperleoff v. Esperdy, 2 in
which the court held that the coram nobis proceeding in that case
had no effect for the purpose of section 241(b). The Attorney General interpreted the Pip,:rkoff case to mean that the test to be
applied under section 241 (b) in coram nobis cases was whether the
court's "sole basis" for granting coram nobis was to make the statutory recommendation against deportation; that the accused's motives
or purposes in seeking COMM, "ii0bi8 were immaterial, except insofar
as they threw light upon the court's basis for vacating the conviction. After examining the record which showed (1) at the time of
pleading guilty to the March 1959 conviction, the accused was not
represented by counsel; (2) that as a result of the court's refusal
of a request that the charges be translated into German, he was unable to understand the crimes against him; and (3) the conviction
could result in his deportation; and that at the hearing only the
first two grounds were urged, there being no mention made of deportation, the Attorney General found no difficulty in concluding that
the opportunity to recommend against deportation was not the court's
"sole basis" for vacating the March 1959 conviction; that it was
clear that the court granted coram nobis because of a constitutional
defect in the prior conviction.
-267 F.2d 72 (C.A. 2, 1959).
617
In the present case, instead of the similar procedure of the writ
of coram, nob is which had been abolished under New Jersey practice,
resort was had to R.R. 3:7-10(a) to correct "manifest injustice."
The "sole basis" stated on the record by the court in granting the
motion to vacate was because it was not aware that the defendant was
subject to deportation and the motion was granted to avoid the additional penalty of deportation. The fact that thereafter the respondent was proceeded against by an accusation rather than by an indictment should not make any difference 3 in concluding that the
recommendation against deportation was not made pursuant to section 241 (b) which enunciates a federal standard for the determination
of what constitutes the first entry of judgment or the passing of
sentence where it is manifest that the sole basis for the vacation and
reentry of judgment was to repair the omission to make the statutory
recommendation against deportation' The interdependency of Accusation 85-60 and Indictment No. 27-59 is shown not only by the
common factors of accused and victim, corpus dalieti, and section of
law violated but also by the reference in the record of conviction on
Indictment 85-60 to Indictments Nos. 27-59 and 28-59 to the effect
that these latter indictments were not dismissed until after the imposition of sentence on Accusation 85-60 and the making of the recommendation against deportation on March 30, 1961. It is concluded
that the recommendation against deportation is not effective under
the federal standard set forth in section 2 11(b) of the Immigration
and Nationality Act.
The conviction of robbery committed on February 13, 1959 (Accusation No. 85-60), the conviction of grand larceny of a motor
vehicle committed July 18, 1958 (Indictment No. 31-58), and the
conviction for possession of a stolen motor vehicle committed July 17,
1958 (Indictment No. 30-58), support the deportation charge laid
under section '241(a) (1). While under this view it is not necessary
to consider whether the latter two convictions involved a single
scheme, we believe we should discuss the finding of the special inquiry
officer in this regard.
Indictment No. 31-58 in violation of N.J.S.A. 2A:119-2 charged
the respondent with stealing the automobile of one W—H— in
3 Artiele 1, paragraph 5, New Jersey Constitution, provides no person shall
be held to answer for a criminal offense unless on presentment or indictment
of a grand jury except in cases now prosecuted without indictment. N.J.S.A.
2A;152-1 defines indictment to include "accusation of crime"; it includes "inquisitiOn," "presentment," "information," as well. N.J.R.R. 3:4-2(a) provides
"a criminal offense punishable by death shall be prosecuted by indictment.
Any other criminal offense shall be prosecuted by indictment, unless the defendant. after having been advised of his right to indictment, shall, in writing
signed by him waive such right, in which case he may be tried on accusation."
4 United States ex rel. Piperkoff v. Esperdy, 267 F.2d 72 (C.A. 2, 1959).
R1R
Bayonne, Now Jersey, on July 18, 1958; and Indictment No 30-58
charged possession of a stolen motor vehicle in violation of N.J.S.A.
2A:139-3 committed the day before, July 17, 1958, in the same city
and involving the property of one R — S — . Convictions on both
indictments occurred in the County Court of Hudson, Jersey City,
New Jersey. on October 17, 1958, and the respondent was given concurrent sentences of indeterminate terms in the New Jersey State
Reformatory, sentences Were suspended and he was placed on 3 years'
probation. The special inquiry officer has found alienage and that
the crimes involve moral turpitude. He has, however, found that the
Government has not borne the burden of establishing that the two
crimes did not arise out of a single scheme of criminal misconduct.
The examining officer placed into evidence the records of conviction and attempted to question the respondent. However, the respondent declined to testify upon advice of counsel and the records
of conviction, plus the refusal of respondent to testify, constitute
the sole evidence to support the charge under section 241(a) (4) of
the Immigration and Nationality Act. 5 The special inquiry officer in
construing the records of conviction stated that they were as equally
susceptible of an inference that the respondent might have been in
the illegal business of stealing and disposing of stolen motor vehicles and thus that the two crimes under consideration were part and
parcel of one scheme or plan of illegal business, as of an inference
of two separated, unrelated and distinct crimes; and concluded that
the test of substantial evidence was not satisfied by evidence which
gives support to inconsistent inferences.
We believe that this construction tales the imagination and is
unsupported by the record. The records of conviction establish that
the respondent had illegal possession of the stolen vehicle of one S-
on July 17, 1958, and that on the next day, July 18, 1958, stole the
auto of one H—. The normal inference to be drawn from different
crimes committal at different times against different. persons is that
they were separate and distinct crimes and were not part of a common scheme or plan unless there is evidence to the contrary. It is
concluded that the records of conviction establish a prima facie
showing of deportability.
The case of Chan-an Din. Khan. v. Barber 6 stated that while it is
true that many separate offenses may be committed by an individual
in furtherance of some subjective predilection amounting to a general
scheme of criminality, to hold that a mere lurking propensity to corn-
5 S.ection 241(a) (4) of the Immigration and Nationality Act (8 U.S.C.
1251(a) (4) ) provides for the deportation of an alien who has, subsequent to
entry into the United States, been convicted of at least two crimes involving
moral turpitude not arising out of a single scheme of criminal misconduct.
147 F. Supp. 771 (N.D. Cal., N.D., 1957).
619
mit certain kinds of offenses manifests a "single scheme" within the
meaning of section 1251(a) (4) would be, in effect, to render nugatory
a declared public policy to deport aliens who are convicted of two
crimes involving moral turpitude; a more reasonable and rational interpretation of this language is that Congress contemplated nothing
more than those situations where an alien's conviction i5 based on a
multiple indictment charging him with separate crimes, which were
committed by the doing of a single act or a series of simultaneous or
closely related connected acts. The Court of Appeals affirmed, holding that fraudulent returns in two different years could, or could
not, be one plan or scheme but that the case presented no facts to
prove such a single scheme; and, in the absence of all evidence to
the contrary, complete crimes committed on different dates or in different places are considered separate and different crimes and support
separate charges.'
This reasoning was quoted with approval in Wood v. floys in
which the court, however, found that there was evidence to the con
trary based upon the alien's testimony which overcame the prima
facie case established solely by the record of conviction .° The court
in Wood v. Hoy referred with approval to the case of Jeronimo v.
Murff . 1° This case involved a multi-count indictment involving several larcenies and briberies covering a stated period; the court
laid great stress on the concluding paragraph of the indictment
which charged: "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"; and the grand jury
found that all the acts and transactions Alleged in the indictments
were connected together. The court in Jeronimo distinguished the
case from Fitzgerald ex rel. Miceli v. Landon"; and Chanan Din
Khan v. Barber '-2 by pointing to the following evidentiary facto
which convincingly established a single scheme in that case: the
initial formulation of the same subsisting fundamental object and
purpose; the utilization of precisely the same methods and procedures in each of a series of successive situations to accomplish the
original objective; the continuously interacting relationship and
cnanan Din Tan v. Barber, 253 F.20 547 (C.A. 9, 1938).
266 F.2d 825 (C.A. 9, 1959).
9 The court commented ou the case of Fitzgerald ex rel. Miceli v. Landon,
238 F.2d 864 (C.A. 1, 1956), in which the court concluded it had no reason to
believe that Lilt petitivuer was eunvitAed of being lewd, wanton and lascivious
solely on the basis of the one act of indecent assault charged in the first
count; but criticized the implication in Miceli to the effect that the proviso is
to be interpreted as "crimes arising out of a single act of criminal misconduct."
.
0157 F. Supp. 808 (D.C., S.D.N.Y., 1957).
11
238 F.2d 864 (C.A. 1, 1956).
12
147 F. Supp. 771.
020
activities of the same persons who originated and launched the proj
ect; the victimizing of the same person through all of the acts
which, in the aggregate, demonstrated the existence of a single
criminal enterprise, project and undertaking, and found that the
record conclusively established that the four larcenies upon which
the proposed deportation was based arose out of a single continuing
criminal enterprise. In the instant case there was no indication
in the indictment of an allegation of a CO111111011 scheme and plan nor
were the same persons victimized, but two different vehicles were
stolen from two different persons on different dates.
In the case of Zito v. Illoutal,'3 the plaintiff was convicted on a
12-count indictment which charged conspiracy and 11 substantive
violations of the Internal Revenue Act, in which the examining
officer introduced into the evidence only a certified copy of the
indictment, judgment and conviction and the alien rested without
producing any evidence. The court followed the reasoning of
Jeronimo, supra, because the only evidence, the record of conviction,
failed to conotitute eubetantial evidence because the indictment
charged a continuing conspiracy, the offenses were of the same type,
the victim was the same and the same defendants participated in
the commission of the offenses. The court found the offenses had a
common subject matter and that the object of each crime was the
same. Again, the present case may be distinguished because the
crimes were different and the victims were different and the record
of conviction shows neither a common subject or a common objective.
in Matter of C—, 9 - 524 (Jan. 2, 1962), in which the respondent
was convicted in a single trial of filing fraudulent tax returns for
the years 1948 and 1949, the record of conviction constituting
the only evidence when the respondent refused to testify at the
deportation hearing, it was found that in the absence of probative
evidence to the contrary, the record of conviction failing to show acts
in furtherance of a common plan would suffice to establish a single
scheme did not exist, and the Board held there was no probative
evidence controverting the inference which flows from the commission
of crimes a year apart. In the instant case, the record of conviction
showing the commission of different crimes on different dates against
different persons supports the charge in the absence of evidence to
the contrary. The crimes here- do not meet the single .scheme test
of commission pursuant to the formulation of overall plan to accomplish an original objective in each of a series of successive criminal
projects. It is concluded that these two convictions do not comprise
a single scheme. Deportation will be ordered upon that portion of
the second lodged charge which is comprehended by the amended conclusion of law (2) below.
10
174 F. Supp. 531 (N.D. Ill., 1959).
621
The findings of fact and conclusion of law made by the special
inquiry officer on November 13, 1961, are hereby adopted except that
finding of fact (9) is amended to read:
(9) That the offenses for which the respondent was convicted under Accusation #85-60 and Indictments #30-58 and #31-58 did not arise out
of a single scheme of criminal misconduct;
and the conclusion of law is amended to read:
(1) That the recommendation against deportation on March 30, 1961, was
not effective under section 241(b) of the Immigration and Nationality
Act;
(2) That the respondent is subject to deportation under section 241(a) (4)
of the Immigration and Nationality Act in that he at any time after
entry has been convicted of two or more crimes involving moral turpitude; robbery commIlLed February 13, 1959, grand larceny committed
July 18, 1958; and possession of a stolen motor vehicle committed July
17, 1958.
ORDER: It is ordered that the alien be deported to Poland pursuant to law on the following charge:
Section 241(a) (4) of the Immigration and Nationality Act in that at any time
after entry he has been convicted of two or more crimes involving moral turpitude: robbery committed February 13, 1959, grand larceny committed July
18, 1958; and possession of a stolen motor vehicle committed July 17, 1958_
622
