MATTER OF S--
In DEPORTATION Proceedings
A-4676827
Decided by Board May 25, 1962
Recommendation against deportation—Timeliness not to be challenged after
failure to appeal.
In 1955. the court vacated its 1952 Judgment for which respondent served one
year, permitted his plea of nolo contenders and sentenced him to one day.
The Court also recommended against deportation In its later decision. On
appeal, the Circuit Court, without passing on the propriety of the recomthendatton against deportation (Service had not appealed this issue), held
that the District Court had acted within its authority. The Board then
terminated proceedings on August 2u, 1955. Held: the 1955 Board decision
became the law of the case and the Service cannot now, seven years later,
move to reopen the proceedings on the ground that the r ,commendatios
against deportation was Improper.
CHARGE:
Warrant: Act of 1917—Sentenced twice for crimes committed in this country, to wit: Section 145(b) I.R.C., 26 U.S.C. 145(b), and 18
U.S.C. 2 (Rev. Ed.) ; sections 52 and 88, Title 18 U.S.C., in
re section 52, Title 'I.'
BEFORE THE BOARD
DISCUSSION: The District Director of the Immigration and
Naturalization Service at Chicago requests that the Board withdraw its order of August 26, 1955, terminating proceedings in the
above entitled matter, and reinstate its decision and order of December 10, 1954, or that the case be remanded to the Service for
further hearing. The basis of this motion is said to be that recent
decisions of the United States Circuit Court of Appeals for the
Second Circuit and of this Board indicate that if this matter were
to arise at this time a ennclusion different from that of August
1955, might result.
The District Director further alleges in his motion to reconsider
that the action taken by the Circuit Court "in the Matter of 345-
Crim-T, Appeal No. 11430, had no bearing on the issue" of the District Court's delayed recommendation against deportation. The
Circuit Court's action is reported as United States v. Shapiro, 222
678
F.2d 836 (C.A. 7, 1955). The motion states that the Circuit Court
"in no way ruled on the propriety or sufficiency of the recommendation against deportation."
Respondent is 65 years of age, a native of Russia, who entered
the United States at New York in 1913. This Board found on December 10, 1954, that respondent is an alien, and that his prior claims
to United States citizenship are not supported by the record. We
found further that respondent was deportable under the 1917 Act
for having been convicted twice for crimes involving moral turpitude following entry for which he was sentenced to terms of imprisonment of more than a year. Respondent was first convicted on
June 8, 1938, in the District Court of the United States at Milwaukee, Wisconsin, on a verdict of guilty on three counts of unlawfully, knowingly, fraudulently and feloniously concealing from a
trustee in bankruptcy property belonging to a bankrupt corporation under Title 11, U.S.C., sections 52 and 88, and Title 18 in re
section 52, Title 11. The sentences and judgment were served concurrently, making a total term of imprisonment of one year and six
months, served at the House of Correction, Milwaukee, Wisconsin.
On January 7, 1952, respondent was convicted in the District
Court of the United States at Milwaukee, Wisconsin, on a plea of
nob eontendere entered November 5, 1951, of the offense of unlawfully attempting to defeat and evade a large part of the income
taxes owed by his wife, R—S--, by filing and causing to be filed,
and by aiding and abetting the filing of false and fraudulent incometax returns, in violation of section 145(b) of the Internal Revenue
Code, 26 U.S.C. 145(b), and 18 U.S.C. 2 (Rev. Ed.), formerly 18
U.S.C. 550 (1940 Ed.). Respondent was sentenced to three years in
a federal penitentiary, and to pay a fine of $10,000. The record
shows, and the United States Circuit Court of Appeals stated, United
States v. Shapiro, 222 F.2d 836 (C.A. 7, 1955), that respondent paid
the fine, served one year of the sentence as required by statute, and
was then paroled. The Court further stated, "He compromised the
civil liability of his wife for her taxes for $411,000. This amount
was paid by the defendant and was accepted by the Internal Revenue Bureau of Wisconsin in payment of all taxes, penalties and
interest due and owing from said R—S-- for the years 1942 to
1947, inclusive." Respondent was ordered deported on February 17,
1954, and on December 10, 1954, this Board dismissed his appeal
from the order of deportation.
On January 20, 1955, the United States District Court for the
Eastern District of Wisconsin vacated and set aside the judgment
of conviction which had been entered against defendant on November 5, 1951, and permitted the defendant, respondent in the present
matter, to withdraw his plea of ?Jul() contendere, and to reinstate his
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plea of not guilty. Thereafter, because of the fact that M—S-
had served one year in the federal penitentiary and had paid a fine
of $10,000, and to avoid a new trial, counsel for the defendant, by
leave of the court, filed a new plea of nolo contendere to the second
count of the indictment and was found guilty as charged. He was
then sentenced to one day in the custody of the United'States Marshal at Milwaukee, said sentence to be satisfied by his reporting to
the Marshal's office and being discharged. He was fined $10,000
and was credited with the $10,000 which he had paid previously.
The court required that the officer in charge of the Immigration and
Naturalization Service at Milwaukee be called, and he appeared and
waived further notice with respect to a recommendation against
deportation. The court gave the Immigration and Naturalization
Service an additional ten days within which to file further representations opposing a recommendation against deportation. The
United States Attorney opposed the action of the court in setting
aside the Judgment of conviction, contending that, since the court
did not recommend against deportation at the time of sentencing
defendant on January 7, 1952, or within 30 days thereafter, the
court had lost jurisdiction to do so. The United States Attorney's
memorandum opposing the defendant's motion to withdraw plea of
nob() contendere referred the court to United States ex rd. Klanis v.
David, 13 F.2d 630; United States ex rel. Amara v. Flynn,
11 F.2d
899; and United States v. Kineaide, E.D. Wise. #427 Crim. Q.
The court was, therefore, fully informed with regard to the adjudication of other tribunals in similar situations. The Government's
memorandum declared Klonis to be identical with the S— matter
and pointed out that .the court (per Judge Learned Hand), while
it disapproved the drastic punishment of deportation, found that
the 30-day provision in the statute limited the power of the court,
that a nuns pro tune order was not effective, and that the proper
remedy was an application for a pardon. Despite the authority to
the contrary, on February 12, 1955, Judge Stone held that, 30 days
not having expired since January 20, 1955, the date of imposition
of judgno,nt in this action and passing of sentence on said defendant,
and the court being fully advised in the premises, recommended to
the Attorney General that the alien not be deported, and ordered
and decreed that the judgment and conviction of the defendant, S—,
not be used by the United States or the Tmmigration and Naturalization Service as the basis of any claim that, as an alien twice convicted of crimes involving moral turpitude, the defendant should
be deported. The United States appealed from the court's order of
January 20, 1955.
The judgment appealed from was the order which vacated and set
aside the judgment of conviction and permitted the defendant to
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withdraw his plea of nolo contendere. The judgment appealed from
did not include the order of February 12, 1955, that the alien not
be deported and that the judgment and conviction not be used as the
basis of deportation proceedings. For that reason the present motion to reconsider declares that the Court of Appeals held only,
United States v. Shapiro, 222 F.2d 836 (C.A. 7, 1955), that the order
granting the motion to vacate judgment and grant new trial was
not a final appealable order, and that the Circuit Court in no way
ruled on the propriety or sufficiency of the District Court's recommendation against deportation. The Immigration Service contends
that the Circuit Court did not rule on the basic issue, whether or
not the District Court could vacate the original judgment, permit the
withdrawal of the defendant's plea of nolo contendere, and make an
order recommending against deportation, as though the court were
"first imposing sentence," in accordance with
8 U.S.C.A., section
1251(b), section 241(b) of the Immigration and Nationality Act.
The District Director is correct in his contention that the Circuit
Court passed only on the propriety of the District Court's order of
January 20, 1955, vacating the original judgment of conviction and
permitting the defendant to withdraw his plea of nob() contendere.
The Circuit Court held, first, that Rule 32(d) of the Federal Rules
of Criminal Procedure expressly authorizes the District Court to
take this action to "correct manifest injustice," and, second, that
this order by the District Court was net a final appealable judgment,
that it was merely a step in the criminal rase. The Circuit Court
stated, 222 F.2d 836 at page 840, citing United States v. Morgan,
346 U.S. 502, Kercheval v. United States,
274 U.S. 220, United States
v. Lias,
173 F.2d 685 (C.A. 4, 1949), that this was a matter within
the discretion of the trial judge, who thought and found that it was
necessary to take this action "to correct manifest injustice." Judge
Stone stated that the Government withheld institution of deportation
proceedings until long after the period of 30 days within which the
court might recommend against deportation, that the defendant believed himself to be a citizen, and that the deportation order "expands and increases the sentence imposed" by the court by adding the
"punishment" of "exile from this country to Russia for the rest of
his life," which would be "manifest injustice." The Circuit Court
declared, "Under the record and facts in this case we cannot say
that the judge abused his discretion in acting as he did," and dismissed the Government's appeal.
It is now contended by the District Director that the recommendation of the trial judge on February 12, 1955, does not legally comply with the requirements of section 241(b) of the Immigration and
Nationality Act and is insufficient to bar the deportation of respondent, citing United States ex rel. Piperkoff v. Espardy, 267 F.2d
681
'72 (C.A. 2, 1959), and recent decisions of this Board, Matter of L ,—
8 389, Matter of B—, 8-686, and Matter of P—, 8-689. In all of
these decisions the Board relied on Piperfeel?, and we found that when
the trial court has disposed of a case after a finding of guilty and has
imposed sentence, the case is no longer pending for action, either
actually or in theory, and that the recommendation against deportation to be effective must be made within 30 days from the time sentence
was first imposed. Quoting Piperlcoff, "To hold otherwise would be
to defeat the plain command of the statute, which strictly and for good
purpose, limits the time within which the extraordinary power vested
in the trial court must be exercised." However, the rule must be modified to the extent that our decision in Matter of P—, 8-689 (B.I.A.,
-Tune 21, 1900), was reversed by the Attorney General in Matter
of P—, 9-293 (Atty. Gen., May 24, 1961). The Attorney General declared that the test, according to Piperkoff, is whether
or not the trial court's "solo basis" for granting °cram nobis (or
for retrying a case or for permitting withdrawal of a guilty plea)
was to make the statutory recommendation against deportation. The
Attorney General found that Matter of P— should not be governed
by Piperleoff , in that the court granted coram nobi8 to P— because of
a "constitutional defect" in the prior conviction, in that under the
New York Constitution and New York cases and on the facts of P—
there was a substantial question of lack of counsel and failure to
understand the charges. The District Attorney did not oppose granting the writ. The instant case does not fall within the Attorney
General's decision in Matter of P—, 9-293. Judge Stone's memo-
.
randum makes it quite clear that he took the action to benefit S
solely to avoid deportation.
It is the conclusion of the Board that the order of the trial judge
of the United States District Court, Eastern District of Wisconsin
on February 12, 1955, that the judgment and conviction of the
defendant, S—, could not be used as the basis of a deportation proceeding against respondent as an alien twice convicted of crimes
involving moral turpitude became the law of the case at the time of
adjudication, and that. it. eannnt. h challenged at. this lath date_
When the United States appealed from the action ei the trial court
in setting aside the defendant's plea of nolo contendere, the Government apparently informed the Circuit Court (222 F.2d 836, at
page 838) "that insofar as it was concerned the action of the District Court was final and for that reason a notice of appeal was
filed to protect the rights of the United States. But according to
the notice of appeal, the appeal was only from the order of the District Court granting the defendant's motion to vacate and set aside
689
the judgment of conviction herein and permitting the defendant to
withdraw his plea of nolo contendere." The Government did not appeal from the February 12, 1955, order recommending that defendant
not be deported. Having abandoned that issue, we agree with counsel
that the Inunigration Service cannot at this time revive those proceedings against respondent.
The courts and this Board have held repeatedly that after deportation has been accomplished the alien will not be permitted to attack
the validity of the deportation order in a subsequent expulsion or
exclusion proceeding. In Matter of C—, 8-276, at page 278, we
cite ample authority to support this proposition. Matter of C—,
supra, holds that no collateral attack is permitted on an executed
deportation order notwithstanding a later coram nobis action that
resulted in vacating the conviction record supporting respondent's
expulsion. When we terminated proceedings on August 26, 1955,
after the United States District Court for the Eastern District
of Wisconsin had ordered and decreed that S not be deported, and
that his conviction on January 20, 1955, not be used as the basis of
any deportation proceeding, the law of this case became fixed.
The issue is not raised in the motion, but for a second reason the
Board declines to reopen proceedings against respondent. The record shows (Exh. C) that following its order of January 20, 1955,
setting aside judgment and sentence, the defendant was adjudged
guilty on his plea of nolo contendere as to count two and sentenced
to the custody of the Attorney General for an.8 day, "such commitment to be satisfied by the defendant surrendering to the custody of
the United States Marshal at Milwaukee, Wisconsin, said sentence
to expire forthwith." The charge in this case was drawn under the
Immigration Act of 1917, section 19(a), and that law directed the
deportation of an alien "who is hereafter sentenced more than once
to such a term of imprisonment [a term of one year or more] because of conviction in this country of any crime involving moral
turpitude, committed at any time after entry." When the court reduced the sentence for the income tax offenses from the original term
of three years to the final sentence of one day, the 1917 charge falls,
without regard to the recommendation against deportation. The
Circuit Court held that it was within the authority of the District
Court under Rule 32(d), 18 U.S.C.A., to take this action. Therefore,
the Government in this case is bound by the final sentence (of one
day) which was not sufficient to support the charge set forth in the
warrant of arrest.
The motion to reconsider must be dismissed.
ORDER: It is ordered that the motion be and is hereby denied.
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