56152/488
Decided by the Board October 28, 1943.
Crime involving moral turpitude — Conspiracy to violate Tariff Act (title 19, U.S.C., sec. 1593) — Admission of crime — Plea of guilty — Evidence — Narcoties — Conviction as transferee.
1. Conspiracy to violate section 593, Tariff Act of 1930 (title 19, U.S.C., sec. 1593), with intent to defraud the revenue of the United States is a crime involving moral turpitude.
2. The crime of conspiracy is complete upon the commission of an overt act, and, accordingly, an alien is subject to deportation on the ground that he has admitted the commission of the crime of conspiracy to violate section 593, Tariff Act of 1930, where an overt act was committed prior to entry.
3. Within the meaning of the immigration laws, a judicial plea of guilty is conclusive proof of an admission of the commission of a crime.
4. An alien convicted as a transferee of marihuana is not deportable under the Act of February 18, 1931, as amended.
CHARGES:
Warrant: Act of 1917 — Admits commission of crime involving moral turpitude prior to entry — conspiracy to violate the Tariff Act of 1930 with intent to defraud the revenue of the United States. Acts of 1917 and February 18, 1931 — Convicted of violation of narcotic law — conspiracy to violate the Marihuana Tax Act of 1937.
Lodged: Act of 1917 — Afflicted with loathsome or dangerous contagious disease — syphilis.
Mr. Leon Ulman, Board attorney-examiner.
STATEMENT OF THE CASE: The presiding inspector proposes that the respondent be found subject to deportation on the warrant charges specified above. The Central Office concurs.
DISCUSSION: The respondent is a native and citizen of Mexico, 31 years of age, married. He last entered the United States at Hidalgo, Tex., on April 17, 1943.
On May 10, 1943, the respondent was indicted in the United States District Court for the Southern District of Texas, for conspiracy to violate section 593, Tariff Act of 1930 ( 19 U.S.C. 1593), in that, he and certain others conspired to unlawfully smuggle into the United States, 4 pounds of marihuana with intent to defraud the revenue of the United States; and of conspiracy to violate section 7 of the Marihauana Tax Act of 1937 (26 U.S.C. 2590 (a)), in that, he and certain others conspired to "acquire, obtain, and receive * * * quantities of marihuana, without having paid the transfer tax required by law, said defendants * * * being persons required to register and pay the transfer tax * * * and to unlawfully have in their possession and under their control quantities of marihuana * * * which had theretofore been transferred to said defendants not in pursuance to a written order issued in blank and furnished for that purpose by the Secretary of the Treasury." The indictment then charged that the conspiracy existed continuously from March 1, 1943, to April 18, 1943, and that the first overt act was committed on March 26, 1943. The respondent pleaded guilty to the indictment on June 26, 1943, and on that date was duly convicted.
The first question is whether the evidence sustains the charge that the respondent is subject to deportation on the ground that he admits having committed a crime involving moral turpitude prior to entry, to wit: conspiracy to violate the Tariff Act of 1930 with intent to defraud the revenue of the United States. It is well settled that the substantive offense in violation of section 593 involves moral turpitude, since an intent to defraud is an essential ingredient of the crime as defined ( Guarneri v. Kessler, 98 F. 2d 580 (C.C.A. 5, 1938)). Likewise, a conspiracy to violate section 593 involves moral turpitude ( Guarneri v. Kessler, supra; Circular Letter 48, December 7, 1936). To complete the offense of conspiracy, but a single overt act is required ( Hall v. United States, 109 F. 2d 976 (C.C.A. 10, 1940); In re V---- (55765/240)). Since the first overt act pursuant to the conspiracy was committed on March 26, 1943, it is established that the respondent committed the crime prior to the date of his last entry, viz, April 17, 1943. However, the respondent refused to make an unqualified admission. In these circumstances, his judicial plea of guilty must be considered conclusive proof of an admission ( Blumen v. Haff, 78 F.2d 833; In re G---- (56064/847) [ see page 96, this volume]). To go beyond the plea would amount to a trial by us of the charges in the indictment, a power that we do not possess ( In re G---- (56083/496)). Consequently, we conclude that the charge is sustained.
We do not agree, however, that the respondent is subject to deportation under the Act of February 18, 1931. As previously stated he was convicted of a conspiracy to violate the Marihuana Tax Act of 1937, in that, he conspired to "acquire, obtain and receive" marihuana. The Act of February 18, 1931, as amended (8 U.S.C. 156 (a)) provides for the deportation of any alien "* * * convicted for violation of or conspiracy to violate any statute of the United States * * * taxing, prohibiting, or regulating the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of * * * marihuana * * *." We have held on several occasions that the Act of February 18, 1931, is directed at the seller, distributor, or transferor and not at the person who acquires marihuana ( In re V---- (56073/670) [ see page 160, this volume]; In re Y---- (56065/353); In re S---- (56080/842)). As the respondent was convicted as a transferee, there is no basis for sustaining the charge.
The third count of the indictment charging the respondent with transportation of marihuana was dismissed.
The syphilis charge is not sustained because, as is pointed out by the presiding inspector, the certification of the United States Public Health Service states that the disease was not in a communicable stage at the time of entry.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Mexico;
(2) That the respondent last entered the United States at Hidalgo, Tex., on April 17, 1943;
(3) That on May 10, 1943, the respondent was indicted in the United States District Court for the Southern District of Texas of conspiracy to violate section 593, Tariff Act of 1930 ( 19 U.S.C. 1593), in that, he and certain others conspired to unlawfully smuggle into the United States 4 pounds of marihuana with intent to defraud the revenue of the United States;
(4) That the first overt act in pursuance of the said conspiracy was committed on March 26, 1943;
(5) That on June 26, 1943, the respondent pleaded guilty to said indictment;
(6) That on June 26, 1943, the respondent was convicted in the United States District Court for the Southern District of Texas of conspiracy to violate section 7 of the Marihuana Tax Act of 1937 (26 U.S.C. 2590 (a)), in that he and certain others conspired to acquire, obtain, and receive marihuana without having paid the transfer tax required by law, and to unlawfully have in their possession marihuana theretofore illegally transferred to them;
(7) That at the time of his last entry the respondent was afflicted with a loathsome disease, to wit: syphilis;
(8) That at the time of the respondent's last entry, said disease was not in a contagious state.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the Immigration Act of 1917 the respondent is subject to deportation on the ground that he admits having committed a crime involving moral turpitude prior to entry into the United States, to wit: conspiracy to violate section 593, Tariff Act of 1930 ( 19 U.S.C. 1593), with intent to defraud the revenue of the United States;
(2) That under section 19 of the Immigration Act of 1917 and the Act of February 18, 1931, as amended, the respondent is not subject to deportation on the ground that on or after June 28, 1940, he has been convicted of a conspiracy to violate a law relating to traffic in narcotics, to wit: conspiracy to violate section 7 of the Marihuana Tax Act of 1937 (26 U.S.C. 2590 (a));
(3) That under sections 3 and 19 of the Immigration Act of 1917 the respondent is not subject to deportation on the ground that at the time of entry he was afflicted with a loathsome or dangerous contagious disease, to wit: syphilis;
(4) That under section 20 of the Immigration Act of 1917 the respondent is deportable to Mexico at Government expense.
OTHER FACTORS: The respondent is presently serving a sentence of 13 months because of his conviction as above set forth. He was admitted for permanent residence to the United States in 1934. He testified that he is married to a citizen of the United States, and that he has three minor children born in the United States. Since the respondent is deportable under the provisions of section 19 (d) of the Immigration Act of 1917, as amended, relating to the criminal classes, he is precluded from receiving consideration for the discretionary relief provided for by section 19 (c).
ORDER: It is ordered that the alien be deported to Mexico at Government expense on the following charge: That he is in the United States in violation of the Immigration Act of 1917, in that he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: conspiracy to violate section 593, Tariff Act of 1930 ( 19 U.S.C. 1593), with intent to defraud the revenue of the United States.
It is further ordered, That execution of warrant be deferred until alien is released from imprisonment.