MA lilt OF S—
In EXCLUSION Proceedings
A-10494958
Decided by Board May 15.1962
Inadmissibility—Crime prior to entry—Conspiracy.
(1) Conviction on a plea of guilty to a general conspiracy stated in one count
to commit, among other offenses, the crimes of forgery in the third degree
and uttering a forged instrument, which are crimes involving moral turpitude, is conviction of crime involving moral turpitude and appellant is
excludable under section 212(a) (9) of the 1952 Act .
(2) A plea of guilty to a conspiracy count is a plea to the entire count In
the absence of a showing to the contrary.
EXCLUDABLE: Act of 1952—Section 212 ( a ) (9 ) [8 U.S.C. 1182 (a ) (9) ] —Convicted of crimes involving moral turpitude, to wit: Assault and
babtery (N.J., 102:7) ; failure to file State ineo_ne tax return
(Calif., 1926); conspiracy, gambling and owning and operating
a gambling establishment (N.Y., 1956).
Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20)1—No
immigrant visa.
Act of 1952—Section 212(a) (27) [8 U.S.C. 1182(a) (27)1—Entry
prejudicial to the public interest.
BEFORE THE BOARD
DISCUSSION: Appellant is 61 years old, a native of Russia, who
was first admitted to the United States for permanent residence in
July 1912, accompanied by other members of his family. He was
naturalized in 1930, but his citizenship was revoked in July 1958.
See Stacker v. United. States, 258 F.2d 112 (C.A. 9, 1958), cert. den.
3M U.S. 90T. The Court of Appeals sustained the finding of the
District Court that despite the passage of 28 years, the Government
had established "by clear, unequivocal and convincing evidence that
the defendant under oath had stated ho had no previous arrests,"
while in fact appellant had "a prior criminal record." The court
had before it other matters of proof and jurisdiction not pertinent
here. The court recited appellant's nine arrests between 1924 and
1928, prior to his naturalization; most of them for "assault and battery" or for "atrocious assault and battery." He was convicted on
688
only one of these charges; his arrest for "atrocious assault and battery" was reduced to assault and battery, for which he paid a fine
of $50 at Newark, New Jersey, on December 14, 1927.
Appellant departed from the United States on or about April 10,
1960, and returned on July 19, 1960. He departed again on January 20, 1961, and applied for readmission on March 20, 1961. In
connection with his last entry the present exclusion proceeding was
instituted. At the time of his return in March 1961 he preSented
an affidavit in lieu of passport (Exh. 4) and an alien registration
receipt card (Form 1-151). The special inquiry- officer found appellant inadmissible on the first two charges set forth above, under
section 212(a) (9) and section 212(a) (20) of the Immigration and
Nationality Act. Appellant appeals from the order of exclusion.
The special inquiry officer found that atrocious assault and battery is a crime involving moral turpitude, but conviction for assault
and battery is not conviction of a crime involving moral turpitude.
The special inquiry officer concluded that appellant did not abandon
his residence in the United States by making two trips to Italy, one
of 3 months' duration and one of 2 months, to see his estranged wife
and their 2 children. The special inquiry officer further concluded
that the Immigration and Naturalization Service has not established
that appellant is inadmissible as a person whose entry is prejudicial
to the public interest. The special inquiry officer found that appellant's conviction for failure to timely file State income tax returns in California in 1955 is not a crime involving moral turpitudo.I
It is not necessary, therefore, for us to consider further the charge
laid under section 212(a) (27).
The special inquiry officer stated that "no probative value" was
being given to the testimony of appellant before Congressional committees investigating organized crime in interstate commerce in New
York and New Jersey. This testimony and the magazine articles and
newspaper clippings referring to appellant's business associates and
gambling activities were introduced in support of the "entry prejudicial to the public interest" charge. These exhibits, 11, 12, 13, 18,
19, and 21, are not now admissible for any purpose, except to establish reputation, and have not been given any consideration by us.
Counsel has alleged in briefs and in oral argument that there was
a "sly scheme" to entrap the alien. A watch notice was pastel for
him before he returned from his first trip to Italy, but he returned
without being apprehended. He was interviewed by the Immigration
Service unce between his first and second . trips. Following his see-
1 The special inquiry officer has included in an Appendix to his decision the
pertinent section of the various statutes under which appellant has been
convicted.
689
654377-68---45
and trip to Italy a year later, he was apprehended by an inspector
who found his name in a "Lookout Book" when he entered via plane
at California. Counsel contends that appellant should have been
warned by the Immigration Service following his denaturalization
that if he went abroad he might not be readmitted, that the Immigration Service has pursued a policy of warning aliens but deliberately refrained from warning appellant. Entrapment is a criminal
law concept,2 and has no appropriate place in this case. Counsel
claims that the Immigration Service failure to apprehend him at
New York on his first return was "lulling" him into a sense of
security (counsel's pre-decision memo, p. 3), and refers to appellant
as an "unwary victim." Appellant has had continuous competent
legal assistance for years, defending him in criminal prosecutions,
representing him when he' has testified before various investigatory
bodies, and in immigration matters. Counsel declares that, while the
usual practice of the Immigration Service is to notify an alien that
he might be excludabh or could be excluded upon reentry, in this
case the Service delivered to appellant his alien registration card in
1959 without any such warning. The examining officer has stated
that at the time the "watch notice" was posted the Service was not
aware of appellant's conviction at Saratoga, New York in 1952. AR
investigator for the Immigration and Naturalization Service at
Los Angeles testified that appellant's record was given iim in Janu
ary 1959 for the purpose of registering appellant under the Alien
Registration Act. The witness testified that he concluded on the
basis of the record then before him that Mr. S did not fall within
the excludable classes. The fact that the Government posted a
lookout notice for Mr. 5-- before his first return from Italy in June
1960 (p. 8, oral argument) at various ports, including the Northeast
Region, but failed to apprehend him until the occasion of his second
return, does not constitute "entrapment" by the Immigration Service,
either on the law or the facts.
Concerning counsel's contention that the Service conduct was improper with regard to appellant's departures and reentries, see
Klapholz v. Esperdy, 201 F. Supp. 294 (S.D., N.Y., 1961), referring
to the standard procedure of "Lookout Book," detention by an
2 Entrapment. The act of officers or agents of the Government in inducing-
& person to commit a crime not contemplated by him for the purpose of instituting a criminal prosecution against him. Faiden v. Commonwealth,
167
Va. 549,
189 S.E. 329, 332. Lee v. State, 66 OkL Cr. 399,
92 P.2d 621, 623.
But the mere act of an officer in furnishing the accused an opportunity to
commit the Crime, where the criminal Intent was already present In the accase '4 mind, is not ordinarily entrapment. State v, Cowling, 1.
61 Wash. 519,
297 P. 172, 174. Black's Law Dictionary (Fourth Edition),
690
immigrant inspector, and parole into the United States pending
determination of admissibtlity. 4
Counsel states that appellant lives from the proceeds of a $1,000,000
note resulting from the sale of some of his properties in Nevada and
that he has not been engaged in gambling activities in the past ten
years. Stadler v. United States, 258 F.2d 112, 116, fn. 11, states
that in July 1950 defendant purchased "an interest" costing roughly
$91,000 in two corporations, the Bank Club of Nevada, Inc., and the
Golden Security Company. According to his tax attorney he sold his
interest in the Golden Hotel and the Bank Club of Reno in May 1952
and received $86,000 cash, a one-third interest in the Earl Carroll
Theater Building in Hollywood, valued at $97,000, and "Installment
Notes" of $1,166,000.
Following his indictment by the Extraordinary Grand Jury on
September 8, 1052, sitting in Saratoga County, New York, for the
crimes of conspiracy, gambling, owning and operating a gambling
establishment, and forgery in the third degree, appellant went to
Nevada. A State court in Nevada refused to extradite appellant to
New York. The extradition proceedings went to the Supreme Court
as State of Nevada v. Stacher,
346 U.S. 906 (1953), and in a per
curiam memorandum decision the Supreme Court reversed the Court
for the 7th Judicial District of Nevada, citing Biddinger v. Commissioner of Police,
245 U.S. 128 (1917), and Pierce v. Creecy,
210
U.S. 387 (1908). Biddinger states the rule (p. 134) that a fugitive
from justice:
• . . If found in another State must be delivered up by the Governor of
such State to the State whose laws are alleged to have been violated, on the
production of such indictment or affidavit, certified as authentic by the Governor of the State from which the accused departed. Such is the command
of the Supreme law of the land, which may not be disregarded by any State.
. . . that when the extradition papers required by the statute are in the
proper form the only evidence sanctioned by this court as admissible on such
a Learlug is such as teals to prove that the accused was not in the demanding State at the time the crime is alleged to have been committed.
Pierce v.
Creecy, supra, is to the same effect saying:
• .. This indictment meets and surpasses that standard, and is enough. If
more were required it would impose upon courts, in the trial of writs of
habeas corpus, the duty of a critical examination of the laws of States with
whose jurisprudence and criminal procedure they can have only a general
acquaintance. Such a duty would he an intolerable burden, certain to lead to
errors in decision, irritable to the just pride of the States, and fruitful of
miscarriages of justice. (p. 405)
The court in Kiaphola had no criticism of thic standard procedure and
found that a conviction following parole into the United States rendered the
alien excludable as a person convicted prior to admission of a crime involving moral turpitude, sustaining the finding of the special Inquiry officer and
the Attorney General, and overruling the Board on this point.
691
The Supreme Court decided that the indictment was in the form
and certified as required by the law, and that the appellant did not
deny that he was in the State of New York at the time the crime
was committed. Counsel contends that the indictment is ambiguous
and uncertain. The Supreme Court implicitly found to the contrary.
Following the Supreme Court decision appellant returned to Saratoga, New York, and on December 29, 1953, entered a plea of guilty
to twenty counts of the indictment pending against him.
Appellant pleaded guilty to the crime of conspiracy as set forth
in the first count, and the crimes of gambling and owning and operating a gambling establishment, counts 14 through 32. Appellant
pleaded guilty to 20 counts, including the.first count, paid a fine
of $600 on each count, the total fine amounting to $10,000. In ad-
. it:tion, upon motion of the Special Assistant Attorney General, the
court sentenced appellant to serve one year in the Saratoga County
Jail on his plea of guilty to the crime of conspiracy, and execution
of the jail sentence was suspended. The principal question before
this Board is the scone of appellant's plea of guilty to the first
count. Only if appellant has been convicted of the commission of a
crime involving moral turpitude is he excludable from the United
States in this proceeding The only crime found by the special inquiry officer to involve moral turpitude is the 'crime of conspiracy
to commit "forgery in the third degree" and "uttering a forged instrument." It is our conclusion that the appellant's plea of guilty
included an admission of guilt of all the offenses set forth under
count one.
Counsel has discussed at length, both in briefs and in oral argument, the fact that the indictment and certificate of conviction
(Exh. 6) came to us from the Office of the Attorney General of the
State of New York, rather than from the Office of the County Clerk
of Saratoga County. The certification, part of Exhibit 6, carrying
the seal of the Attorney General of New York states: "This is to
certify that the attached is an exact copy of an indictment of the
Extraordinary Grand Jury of the County of Saratoga, State of New
York v. M—L—, J—S—, et al., filed September 8, 1952, on file in
this office. This office is the official custodian of the aforesaid records." The certification is signed for Louis Lefkowitz, Attorney
General of the State of New York, by Paxton Blair, Solicitor General of the State of New York. A considerable portion of counsel's
argument and memoranda have boon devoted to the authenticity and
.source of the copies of the indictment and certificate of conviction.
It is his contention that they are not certified under the hand and
seal of the Clerk of the Supreme Court of the State of New York
for the County of Saratoga, the proper forum, but instead by the
Attorney General who declares himself to be the official custodian of
692
the records Connse,1 compares this with the prosecuting attorney
sitting in judgment on the merits of the case. This is not a legitimate analogy, because the adjudication was, of course, made by the
court.
The record contains (also part of Exh. 6) a letter from the present Saratoga County Clerk stating that he made a search of the
records in the County Clerk's office and was able to find no indictment again s t J S on file in that office. He refers the, officer of the
— —
United States Immigration Service to the Attorney General's office
at Albany for papers pertaining to the investigation that have not
been filed with the County Clerk. This alien has been engaged in
constant litigation, at least since 1952, with denaturalization and
extradition proceedings, and income tax, conspiracy and gambling
prosecutions. All the papers may have been removed from the office
of the County Clerk in connection with any une of these proceedings
or other investigations.
We have no doubt as to the authenticity of these documents, even
though they came from the Attorney General of the State of New
York rather than from the Circuit Court, or the office of the County
Clerk. The Certification of the Librarian, State of New York Department of Law (April 25, 1961), covering the order of the Governor of New York of April 2, 1951, and other communications
comprising Exhibit 6 indicate that the Office of the Attorney General was a proper custodian and source of these documents,
The "certificate of conviction" recites that the appellant was
indicted "for the crimes of conspiracy, forgery in the third degree,
gambling and owning and operating a gambling establishment, PL
§ 580, § 932, § 889, § 970 and § 973, committed in the County of
Saratoga, State of New York." The certificate continues by stating
that at the arraignment and with the consent of the defendant,
J—S—, "the said indictment was amended to charge the defendant
with the crimes set forth in counts fourteen through_twenty one, in- -
clusive . . . and the indictment was further amended to add counts
twenty-two through thirty-two, inclusive, charging violations of
section 970 of the Penal Law on the dates of August 3, 1947 to
August 15, 1947." The certificate does not state that count one was
amended. The certificate of conviction then continues:
Thereupon, following the amendment of the said indictment as above set forth,
the said J—S- , the above-named defendant, pleaded guilty to the crimes of
conspiracy, gambling and owning and operating a gambling establishment in
violation of section 970 of the Penal Law, constituting the first count, the
fourteenth to the twenty - first counts, inclusive. and the twenty-second through
the thirty-second counts, inclusive, of said indictment, as amended, to cover
the said amended indictment.
The certificate of conviction then recites that the defendant was
thereupon sentenced to the fine and penalties as set forth above.
693
Counsel attempted to introduce into the record testimony of appellant as to which portions of the indictment he intended to plead
guilty to, on the ground that the certificate is ambiguous. The special inquiry officer refused to permit the testimony. In argument
before the Board, counsel stated that appellant pleaded guilty to
nineteen substantive counts of gambling or operating a gambling
establishment and that he also pleaded guilty to the first count, the
conspiracy count, only as to that portion that dealt with gambling,
because he was not denying an interest in, or that he did, for a time,
operate this gambling casino. Counsel argued further that there
were 12 nongambling counts in the indictment, dealing with third
degree forgery under the New York Code, or obtaining the signature
of a person to a written instrument, like a liquor license, with intent to defraud or cheat, but that appellant did not plead guilty to
any of the nongambling substantive counts. As to appellant, those
counts were dismissed. Counsel states that in the amended indictment "the court added" additional gambling counts (twenty-two
through thirty-two), covering different dates, and operating a gambling casino, covering additional dates, and the common gambler
count, but that none of the substantive counts to which appellant
pleaded guilty covered the forgery charge.
Appellant did not plead guilty to counts two through thirteen.
However, the same plan, scheme and organization is described in
these counts as that described in the conspiracy count, except that it
is described in greater detail. By his pleas of guilty to the other
counts he admitted his participation in the plan or "conspiracy."
Counts two and three charge appellant and others with unlawfully
and feloniously obtaining the signature of certain persons to a summer liquor license in the name of a person who was not actually the
sole proprietor and partner in the restaurant, in violation of section
932 of the Penal Law, of "obtaining the signature of a person to a
written instrument with intent to cheat and defraud, designedly, by
aid of false pretense in violation of section 932 of the Penal Law,"
the written instrument involved being a lease, and that the coconspirators (five in number), including S—, obtained the signatures
of two other persons to an application for a summer liquor license,
which application alleged U— to be the bona fide proprietor of the
premises, that none of the partners had ever been arrested or indicted for any crime, that no person other than U— was interested
in the business, or had a lien or mortgage thereon, or had been known
by any other name, etc., all of which allegations the defendants
—
knew to be untrue, and all of which statements were made to defraud the New York State Liquor Authority.
The fourth and fifth counts allege the crime of forgery in the
third degree in violation of section 889 of the Penal Law by falsi-
694
lying leases and making a false statement of the financial condition
of the Arrowhead Inn through the period August 1, 1946, to August
31, 1946, for the purpose of creating the illusion that the restaurant \
enterprise was owned and operated independently, that money for
-
rent had been paid out in good faith, and that M—F— had sustained
loss of $31,782 during this period. This count alleges that the
statement of financial condition was compiled by defendants in order to conceal from the New York State Liquor Authority the truth
toncerning the particulars alleged.
Counts 6, 7, 8, 9, 10, 11, 12 and 13 all include S— as one of the
codefendants and all allege the crime of forgery in the third degree in violation of paragraph 1 of the first subdivision of section
889 of the Penal Law. These counts include allegations set forth
above in other counts and all relate to unlawfully, knowingly and
corruptly falsifying writings or financial summaries relating to the
operation of the restaurant, alleging sums paid out as rent that had
not been paid in good faith; that no actual audit of the books was
made as had been alleged; that the statements of financial condition
were compiled, prepared, and issued with the intent to defraud the
New York State Tax Commission and the Collector of Internal
Revenue of the United States who were creditors for income tax
purposes of the defendants and M—U—; and that these false statements of financial condition were compiled, prepared, and issued for
the purposes, not only of concealing the interests and financial condition of the defendants from the New York State Tax Commission
and the Collector of Internal Revenue, but also of deceiving the
New York State Liquor Authority. It is alleged that statements
relating to the financial condition of Arrowhead Inn omitted material entries with the intent of concealing the fact that the restaurant
operated at a substantial loss, that the false entries in financial statements wore made with intent also to defraud creditors. Counts
twelve and thirteen describe a checking account in a fictiticus name
in which money (checks) was deposited and withdrawn, this money
being the proceeds of gambling conducted at the Arrowhead Inn,
and allege that this activity was for the purpose of misleading state
and federal tax agents, and that these acts constituted violations
not only of section 889 of the Penal Law but also of sections 970
and 973. Mr. S-- did not plead guilty to counts two through thirteen described above, but they describe the same scheme as that set
forth in count one, and the other substantive counts to which he
did plead guilty.
In the indictment (unamended) in our record Mr. 5— is not
named in counts fourteen through seventeen, but he did plead guilty
to there etnintR, which allege the crimes of gambling in violation of
section 970 of the Penal Law, and of owning and operating a gam-
695
Ming establishment in violation of section 973 of the Penal Law,
specifically, of operating and conducting for their personal gain
games of chance including roulette, chemin de fer, birdcage and
craps, and keeping a building and casino adjacent to the Arrowhead Inn for these purposes.
In counts eighteen through twenty-one appellant is named as a
co-defendant (aider and abbettor), and these counts charge conunis-
&ion of the crime of gambling and owning and operating a gambling
establishment in violation of sections 970 and 973 of the Penal Law,
and that the defendants were not inhabitants of or usually or publicly resident within the State of New York.
The special inquiry officer found that gambling and owning and
operating a gambling establishment and being a common gambler
under sections 970 and 973 of the New York Penal Code are not
crimes involving moral turpitude. We agree that the offenses set
forth in counts fourteen through twenty-one, and, so far as we can
tell from the certificate of conviction, those offenses described in
counts twenty-two through thirty-two, are not crimes involving
moral turpitude. If appellant is excludable for the commission of
a crime involving moral turpitude prior to entry, it is on his plea
of guilty to count one. We agree that Mr. S—, in pleading guilty
to count one, pleaded guilty to the entire count.
Count one indicts the defendants in broad terms of violating six
sections of the Penal Code, and the indictment then states, not as
overt acts or as substantive counts, but as "parts of the conspiracy,"
the following agreements: Parts (1) to (5) relate to the setting up
and operating of the restaurant and casino. Parts (6) and (7) relate to the obtaining of a. local figure to sign leases as tenant of the
property, the leases to be "conditioned upon the granting of a slimmer liquor lieenae," to procure in successive years the necessary liquor and other licenses, to conceal from federal and New York State
liquor and tax authorities the identity of the true principals. Parts
(8) to (10) relate to obtaining a local figure to act as a respectable
"front" for the organization, and set forth the aim of the restaurant to serve excellent food and offer superior entertainers to attract as guests a moneyed clientele. Part (11) alleges establishment
of checking accounts in false names in which to deposit the checks
taken in the casino. Part (12) alleges the establishment of a dummy
corporation to pay the expenses of the operation. Part (13) allogos the stock was to be held in the dummy corporation and officers and directors thereof were to be selected so as not to disturb
the true owners - in their beneficial enjoyment. Part (14) alleges
that distorted financial statements were to be prepared and issued
by accountants "to heighten the illusion" that the restaurant was a
bona fide enterprise and to mislead the New York and federal liquor
696
raid income tax authorities. Part (15) nil the defendants should
share in fixed proportions the net profits of the gambling operations.
Part (16) alleges the defendants should utilize the capital of the
corporate defendant for their personal use without regard for and
in violation of statutory injunctions regarding the use and transfer
of corporate capital, property and stock. Part (17) alleges the
defendants should withhold and divert from the person in whose
name the restaurant operation was conducted, the true records and
should conceal and destroy these records.
Of the 42 overt acts which then follow, two overt acts, (15) and
(24), refer to the "defendants" without naming specific names.
Overt acts (13), (23) and (27) state that S— was a copartner in
operating the casino and the gambling at Arrowhead Inn, and that
he was in daily attendance at the casino and conferred with and
issued instructions to employees.
Section 881 defining "uttering forged instruments" has three sections. Section 889, defining "forgery in the third degree" (pp. 4
and 5, Appendix, Special inquiry officer's decision), has four subsections, each defining or describing many different kinds of acts.
It is counsel's contention that these sections are divisible and that
from the indictment you cannot tell what subsections of these statutes, particularly section 889, appellant is alleged to have conspired
to violate, or what sections or subsections he pleaded guilty to. The
rules of criminal pleading do not require the same degree of detail
and technical precision in an indictment for conspiracy in stating
the object of the conspiracy as is required when the indictment
charges the substantive offense. Thornton v. United States, 271 U.S.
412, 423 (1926), and Wong Tai v. United States,
273 U.S. 77 (1927),
and cases cited therein. The indictment was sufficient to advise the
defendant of what he had to meet, and sufficient to protect him
against subsequent prosecution for the same offenses. The indictment states clearly, particularly in count one, paragraphs 4 and 17
(pp. 3 and 5, indictment) that the acts- recited therein were done
"to conceal" the identity of the true principals from, and "to mislead," the New York State Liquor Authority and the state and
federal income tax authorities. It is our belief that the conspiracy
count includes crimes involving moral turpitude.
The certificate of elmvintinn sets forth clearly enough the fact
that appellant pleaded guilty to three crimes, (1) conspiracy, (2)
gambling, and (3) owning and operating a gambling establishment
in violation of section 970 of the Penal Law. The offenses to which
he pleaded guilty, as described in the certificate of conviction, are
set forth in "the first count, the 14th to the 21st counts, inclusive,
and the 22nd through the 32nd counts, inclusive." There is nothing in the certificate of conviction to indicate that appellant pleaded
697
guilty to only part of the conspiracy count. A defendant does not
plead guilty to part of a count' He must plead either "guilty"
or "not guilty" to the entire count. We have been unable to discover a case, statute, or precedent of any kind to support counsel's
contention that it is possible to "split a count," and to plead guilty
to part of a count only. Suppose a count charges a defendant with
conspiring to steal a watch and a ring. He cannot say, "I conspired to steal the watch but not the ring." He must plead "guilty"
or "not guilty" to the entire count, and if he denies having conspired to steal the ring, he would, of course, plead "not guilty" to
the entire count.
What is the effect of a guilty plea? The rule is stated in many
cases, and we will cite only a few. Rader v. United States, 288
F.2d 453 (C.A. 8, 1959),
185 F. Supp. 224, 230, declares, "This plea
of guilty has the same force and effect as a conviction by a jury."
Harris v. United States,
288 F.2d 790 (C.A. 8, 1961), holds, "Defendant's plea of guilty was an admission of his guilt and a 'waiver'
of all nonjurisdictional defects and defenses and an admission of
all the facts averred in the information," citing Lipscomb v. United
States,
273 F.2d 860, 865 (CA. 8, 1960).
Williams v. United States, 290 F.2d 217 (C.A. 5, 1961), also
states that a plea of guilty is a judicial admission of all of the
elements of the crime and no proof is needed. "Tt is as conclusive
as the verdict of a jury," says United States v. Swaggerty,
218
F.2d 875 (CA. 7, 1955). See also Novalie v. United States,
254
F.2d 869 (C.A. 5, 1958) ; Thomas v. United States,
290 F.2d 691
(C.A. 9, 1961), wherein the court held that by his plea of guilty
the appellant foreclosed his right to raise objections to the manner in which evidence upon which he was indicted was obtained.
See also //all v. United States,
259 F.2d 480 (C.A. 8, 1958); Edwards v. United States,
256 F.2d 707 (CA. D.C., 1958) ; Berg v.
United States,
176 F.2d 122 (CA. 9, 1949) ; Kercheval v. United
States,
274 U.S. 220 (1927) ; Friedman v. United States,
200 F.2d
690 (C.A. 8, 1953) ; and United States v. Parker,
292 F.2d 2 (C.A.
6, 1961). Maye v. Pescor,
162 F.2d 641 (C.A. 8, 1947), states that
the hearing on a petition for a writ of habeas corpus is not a substitute for the functions of the trial court and that, "The record
does not purport to set out all the facts presented to or known by
the United States Attorney, and we cannot go outside the record
for the facto" (Conte in v. Coaart, Warden, 158 F gcl 676 (CA. 5,
1946)). The plea of guilty admitted all the facts. charged in the
indictment. See also, Dalton v. Hunter,
174 F.2d 633, 635 (C.A.
10, 1949) ; Bugg v. Hudspeth,
113 F.2d 260 (C.A. 10, 1940) ; and
4 Rule 11, Federal Rules of Criminal Procedure, Title 18, also permits the
defendant, with the consent of the court, to plead nob contendere.
698
Norris v. Hudspeth, 114 F.2d 1007 (C.A. 10, 1940); Thornberg v.
United States,
164 F.2d 37 (C.A. 10, 1947); Lindsay v. United
States,
134 F.2d 960 (C.A. 10, 1943), cert. den.
319 U.S. 763;
Spencer v. Hunter,
139 F.2d 828 (C.A. 10, 1944) ; Hawley v. Hunter,
161 F. 2d 825 (C.A. 10, 1947). Therefore, the irregularities in procedure occurring before entry of the plea became harmless and do
not constitute any basis for the vacating of the judgment. United
States v Tiny1a7u1,
264 F. 2d 346 (C.A. 7, 1059), points out that to
hold otherwise would render every judgment based on a guilty plea
open to collateral attack, motion to vacate judgment, etc. (pp. 349,
352).
In United States v. Ben Grunstein and Sons Co.,
127 F. Supp.
907 (D.C. N.J., 1955), the court said, "Surely, if, after a criminal
verdict against him, overruling his denial of guilt, one is not permitted to make further denial, he should not be permitted to do so,
when, instead of denying guilt, he has previously formally admitted it. Indeed at times a plea of guilty is given greater scope than
is a judgment of conviction after trial, as where the parties are
not the same in the two proceedings.
31 A.L.R. 261, 278 (1924);
18 A.L.R.2d 1287, 1290 (1951) ; 5 Wigmore, Evidence, secs. 1066,
1346, 1671a."
Many cases concerned with the effect of a plea of guilty arise
when the defendant concludes that the plea of guilty was a mistake, either after he has served a portion of his sentence and wishes
to be released from confinement, or when the sentence following
his plea is much more sex ere than he expected. In Friedman et al.
v. United States,
200 F.2d 690 (C.A. 8, 1952), the indictment consisted of four counts, the first two counts were conspiracy counts,
and the last two counts alleged substantive offenses. The defendant corporation pleaded guilty to one of the substantive counts and
not guilty as to others. The individual defendants pleaded guilty
only to one of the conspiracy counts, conspiring to defraud the
Government. The principal defendant, an officer of the corporation, expected a fine. In fact, he was the only defendant to be
given a prison sentence. The other defendants were given suspended sentences and placed on probation. The principal defendant sought to withdraw his guilty plea. The court discussed at
length the effect of pleas of guilty, the circumstances under which
pleas may be withdrawn, and stated that a guilty plea "is not a
mere admission or extrajudicial confession of guilt; it is as conclusive as the verdict of a jury," and the "defendant who enters
a plea of guilty has no legal right to withdraw the plea" (citing
cases).
The alien in the instant case is somewhat in the position of
Friedman, supra, in that the punishment for his offense is greater
699
than he expected, not in the matter of a prison sentence, but in that
it renders him excludable from the United States. See, particularly, discussion of "collateral consequences" of a guilty plea in
United States v. Parrino, 212 F.2d 919 (C.A. 2, 1954).
Counsel argues that there is no substantive count in the indictment charging a violation of section 881, uttering a fdrged instrument, and that respondent cannot be convicted upon a trial for
conspiracy unless one or more overt acts alleged in the indictment
be proved. The contention that appellant participated in the operation of the gambling establishment but did not participate in
the aspects of the conspiracy which related to forgery ignores the
basic nature of the crime of conspiracy. Even if it were possible
for him to plead guilty to only part of the conspiracy count, he
must still have been found guilty of participation in the entire
combination. The fact that a person is not found guilty of the
substantive offence does not prevent his conviction of the conspiracy
to commit it. The cases hold that if there is concert of design
there need not be participation in every detail of its execution, or
even knowledge of the scope of the conspiracy. It is not necessary
to detail the evidence of the conspiracy in the indictment. If there
is a "meeting of the minds," an understanding and an agreement
with all parties working together toward a single design or purpose, the existence of the conspiracy may be inferred Telm,an v.
United States, 67 F.2d 716 (C.A. 10, 1933), cert. den.
292 U.S. 650.
A plea of guilty to conspiracy admits the existence of the conspiracy as charged, as well as the defendant's participation therein.
United States v. American Packing Co.,
113 F. Supp. 223 (D.C.
N.J., 1953).
Where the conspiracy has been conclusively established, slight
evidence connecting accused therewith will suffice, and it is not
necessary to connect him directly with the actual crime committed.
Luteran v. United States,
93 F.2d 395, affirming United States v.
Buck,
18 F. Supp. 213, cert. den. Luteran v. United States,
303
U.S. 644, reh. den.
303 U.S. 668.
The general rule is that a party coming into a conspiracy or
scheme to defraud at any stage of the proceeding, with knowledge
that an illegal scheme or conspiracy is in operation, becomes responsible for all acts done by any of the other parties in furtherance of the common design. We will refer only to a few of the
many cases. In Levy v. United States, (C.A. Wash.)
92 F.2d 688,
the court held that it was proper to instruct the jury that the accused, joining in a conspiracy to defraud by use of the mails, would
be guilty of overt acts by coconspirators, whether immediately participating therein or not. See also, Harris v. United States,
48
F.2d 771; Edwards v. Commonwealth,
74 S.W.2d 949,
254 Ky. 492;
700
Skelly v. United States and Berman v. United States, 76 F.2d 483
(C.A. 10, 1935), cert. den.
55 S.Ct. 914,
295 U.S. 757; People v.
Darr,
179 Ill. App. 130.
The New York courts follow what appears to be the universal
rule, that a prima facie case of conspiracy having been established,
evidence of every act of the individual conspirators done in furtherance of the common purpose was admissible. People v. Connolly,
253 N.Y. 330,
171 N.E. 393 (1930) ; People v. Van Tassel,
156 N.Y. 561,
51 N.E. 274 (1898) ; People v. Pecken8,
153 N.Y. 576,
47 N.E. 883 (1897) ; People v. Miles,
192 N.Y. 541,
84 N.E. 1117
(1908) ; and People v. Candib,
129 N.Y.S.2d 176 (1954).
Appellant having pleaded guilty to the conspiracy count, it is
unnecessary for us to go to the facts of the case or the "overt acts"
alleged. The plea of guilty relieves tic of that necessity. Actually,
there are many overt acts set forth which were done to effect the
object of the conspiracy after the conspiracy had been formulated
and agreed upon. The aims of the group associated with appellant at Saratoga Springs could not have been accomplished without the false front features of the scheme described in the indictment. The beverage license was essential to the operation of the
restaurant and gambling operation. The same may be said of the
portion of the scheme relating to depositing the checks received
by the gambling organization in checking accounts which operated
under false names. The fact that appellant does not admit that
all the overt acts set forth in the indictment were done by him, and
that he did not plead guilty to all the substantive counts, has no
effect whatever upon his plea of guilty to count one. We find that
appellant is inadmissible to the United States as a person who was
convicted prior to entry on a plea of guilty to a general conspiracy stated in one count to commit, among other offenses, the crimes
of forgery in the third degree and uttering a forged instrument,
which are crimes involving moral turpitude.
The special inquiry officer was correct in finding that as the conviction for the crime under consideration occurred in December
1953, prior to the respondent's first reentry on July 19, 1960, he
was then not admissible to the United States. Therefore, when he
last reentered the United States in March 1961 he was not returning
to a lawful residence in the United States, and he was not entitled
to admission as a returning resident without an immigration visa.
The Board adopts the findings of fact and affirms the conclusions of law of the special inquiry officer.
ORDER: It is ordered that the appeal be and is hereby dismiz.led.
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