MATTER OF S—
A-8089783
In DEPORTATION Proceedings
Decided by Board April 19, 1962
10 I. & N. Dec. 613
Rеcommendation against deportation—Section 241(b), 1952 act—Not effective following resentencing for sole purpose of making recommendation—Deportation—Section 241(a)(4)—Single scheme.
(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 absencе of evidence to the contrary and in light of respondent‘s refusal to testify such convictions establish deportability under
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)]—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)]—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. R. M. Blatchford and was admitted as an eligible dis
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 W— 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, sentencе 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, committed 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 vult 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, 1959, involving the robbery, while armed, from C— G— of $500 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
(4) Accusation No. 85-60 charged the respondent with robbеry in violation of N.J.S.A. 2A:141-1, committed February 13, 1959, 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 vult 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 be given credit for time already spent at the New Jersey State Reformatory under Indictments No. 27-59 (infra) 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. 85-60 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, supra. 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 theft of a motor vehicle in violation of N.J.S.A. 2A:119-2, directed the entrance of a plea of not guilty to the charge and on March 30, 1961, the same judge directed the dismissal of the indictment.
The County Court‘s order of November 2, 1960, vacating the convictions under Indictments No. 27-59 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 nolo contendere or of non vult, may be made only before sentence is imposed or imposition of sentence is suspended; but to correct mаnifest injustice, the Court, after sentence, may set aside the judgment of conviction and permit the defendant to withdraw his plea.
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, 1959, in the City of Jersey City, New Jersey. Indictment No. 27-59 had resulted in the respondent‘s conviction on his plea of non vult 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 had 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 vult 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. 27-59; 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 County Court in his order of November 2, 1960, that the defendant‘s plea of non vult heretofore entered on February 29, 1960, in response
This subject was considered by the Attorney General in Matter of P—, 9-293 (May 24, 1961). In that case the rеspondent was convicted of disorderly conduct in violation of section 722(8) of the Penal Law of New York in September 1954 and again in March 1959, 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
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
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
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
We believe that this construction taxes 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 committed 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 thе contrary. It is concluded that the records of conviction establish a prima facie showing of deportability.
The case of Chanan Din Khan v. Barber6 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 com
This reasoning was quoted with approval in Wood v. Hoy,8 in which the court, however, found that there was evidence to the contrary based upon the alien‘s testimony which overcame the prima facie case established solely by the record of conviction.9 The court in Wood v. Hoy referred with approval to the case of Jeronimo v. Murff.10 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. Landon11 and Chanan Din Khan v. Barber12 by pointing to the following evidentiary facts which convincingly established a single schеme 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
In the case of Zito v. Moutal,13 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 constitute substantial 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 а 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.
(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 committed 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: