A-1732847.
Decided by Board April 14, 1955. Commissioner's Motion April 14, 1955. Decided by Attorney General September 23, 1955.
Narcotic violation — Section 241 (a) (11) of Immigration and Nationality Act — Conspiracy.
While the crime of conspiracy as defined by 18 U.S.C. 371 is a separate and distinct offense from the crime which is the object of the conspiracy, the language of section 241 (a) (11) of the Immigration and Nationality Act is broad enough to cover a conviction for conspiracy to violate the narcotic laws.
CHARGE:
Warrant: Act of 1952 — Convicted of violation of law governing taxing, etc., of narcotic drugs: Conspiracy ( 18 U.S.C. 371) to violate Jones — Miller Act (21 U.S.C. 174) and Harrison Narcotic Act (26 U.S.C. 2553 (a)).
BEFORE THE BOARD
Discussion: The case comes forward on appeal from the order of the special inquiry officer dated December 15, 1954, ordering the alien deported on the charge stated in the warrant of arrest.
The record relates to a native and citizen of Italy, 48 years old, male, who last entered the United States at the port of New York, New York, on October 2, 1924, as a stowaway. He was previously granted suspension of deportation and his status was adjusted under section 19 (c) (2) of the Immigration Act of 1917 on May 11, 1944, to show a lawful entry for permanent residence on October 2, 1924.
On August 27, 1954, in the United States District Court at San Francisco, Southern District of California, Southern Division, the respondent was convicted of the crime of conspiracy in violation of 18 U.S.C. 371. The record of conviction shows that the respondent was charged in the twenty-fourth count with conspiracy ( 18 U.S.C. 371) with a number of other persons in that he conspired with certain named persons to sell, dispense and distribute heroin in violation of sections 2553 and 2557 of Title 26, United States Code, and to conceal and facilitate the concealment and transportation of quantities of heroin imported into the United States, contrary to law, as the said defendant well knew, in violation of section 174 of Title 21, United States Code. The acts in furtherance of the conspiracy relating to the respondent are charged in paragraphs 33 and 34 of the overt acts in the indictment, and occurred on or about February 10, 1951.
Deportation of the alien is sought under section 241 (a) (11) of the Immigration and Nationality Act. This section provides for the deportation of any alien who:
(11) is, or hereafter at any time after entry has been, a narcotic drug addict, or who at any time has been convicted of a violation of any law or regulation relating to the illicit traffic in narcotic drugs, or who has been convicted of a violation of any law or regulation governing or controlling the taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, exportation, or the possession for the purpose of the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation or exportation of opium, coca leaves, heroin, marihuana, any salt derivative or preparation of opium, or coca leaves or isonipecaine or any addiction-forming or addiction-sustaining opiate.
Previously, deportability based upon the illegal traffic in narcotics was contained in the Act of February 18, 1931, as amended (8 U.S.C. 156 (a)), which provided:
That any alien * * * who, after the enactment of this Act, shall be 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 * * * heroin * * * shall be taken into custody and deported in manner provided in sections 19 and 20 of the Act of February 5, 1917 * * *. (Emphasis supplied.)
A comparison of the 1931 and the 1952 acts concerning deportation on the ground of illicit traffic in narcotics reveals that the former specifically includes not only a conviction for a violation of a narcotic trafficking statute but also a conviction for conspiracy to violate such a statute, while the latter act is silent on this point of conspiracy and refers only to a conviction of a violation of any law or regulation relating to the illicit traffic in narcotic drugs. We conclude that this omission is fatal insofar as the present conviction is concerned, since in the instant case the alien has been convicted only of conspiracy in violation of 18 U.S.C.A. 371. While it is true that the substantive acts which are charged in the record of conviction as the objects of the conspiracy relate to the illicit traffic in narcotics, it is well settled that a conspiracy to commit a crime is a different offense, notwithstanding that the substantive offense is charged as one of the overt acts committed in furtherance of the conspiracy. The crime of conspiracy to commit an offense is distinct from the offense itself. It has been repeatedly declared in decisions of the Supreme Court that a conspiracy to commit a crime is a different offense from the crime that is the object of the conspiracy. The conspiracy is the crime, however diverse its object. A conspiracy is not the commission of the crime which it contemplates, and neither violates nor "arises under" the statute whose violation is its object.
Braverman v. United States, 317 U.S. 49 (1942); United States v. Bayer, 331 U.S. 532 (1947).
United States v. McElvain, 272 U.S. 633 (1926).
United States v. Rabinowich, 238 U.S. 78 (1915), and cases cited therein.
United States v. Lutwak, 195 F. (2d) 748 (C.A. 7, 1952).
It is, therefore, concluded that the crime of conspiracy in violation of section 371, Title 18, U.S.C.A., is a separate and distinct offense from the substantive offense charged in the record of conviction and that the crime of conspiracy does not constitute a conviction of a violation of a law relating to the illicit traffic in narcotic drugs. The proceedings will be terminated.
Order: It is ordered that the proceedings be and the same are hereby terminated.
(April 14, 1955)
Discussion: The above-named alien was found deportable by the special inquiry officer, after hearing, by reason of the alien's conviction on August 27, 1954, for conspiracy ( 18 U.S.C. 371) to violate certain laws relating to the illicit traffic in narcotic drugs.
The Board of Immigration Appeals has now entered an order reversing the order of the special inquiry officer and terminating the deportation proceedings. The Board reaches the conclusion that the crime of "conspiracy" in violation of section 371, Title 18, U.S.C., is a separate and distinct offense from the substantive offense charged in the record of conviction and does not constitute a violation of law relating to the illicit traffic in narcotic drugs within the meaning of section 241 (a) (11) of the Immigration and Nationality Act. The Board supports its conclusion by pointing to the fact that the predecessor statute, the Act of February 18, 1931, specifically referred to "conspiracy to violate" the narcotic laws while section 241 (a) (11) omits any such reference.
The Service believes that the Board's interpretation of the statute is erroneous. It is evident from a reading of the legislative history of the Immigration and Nationality Act that Congress intended not to limit but to broaden the area of deportability with respect to aliens trafficking in illicit drugs. Congress was aiming not only at the small-time "dope peddlers" but at the bosses who control and direct this nefarious traffic. These men are, more often than not, indictable as conspirators.
The omission of which the Board speaks is not significant. More than likely Congress felt is was unnecessary to include any specific reference to "conspiracy" to violate the narcotic laws in view of the unrestricted sweep of the language contained in section 241 (a) (11). Nowhere in the legislative history of the Immigration and Nationality Act is there any indication that Congress intended to relieve from the consequences of deportation those convicted of conspiring to violate the narcotic laws while enforcing expulsion only against those convicted of substantive narcotic offenses. A plain reading of the language in section 241 (a) (11) negates any such conclusion. The statute is broad enough to encompass convictions for conspiracy whenever such conspiracy has as its object violation of the laws relating to the illicit traffic in narcotic drugs.
Request is hereby made that this case be referred to the Attorney General for review pursuant to 8 C.F.R. 6.1 (h) (1) (iii).
(September 23, 1955)
The above-captioned case was referred to the Attorney General by the Board of Immigration Appeals pursuant to 8 C.F.R., section 6.1 (h) (1) (iii).
The record relates to a native and citizen of Italy who last entered the United States on October 2, 1924, as a stowaway. On May 11, 1944, he was granted suspension of deportation and his status adjusted under section 19 (c) (2) of the Immigration Act of 1917.
On August 27, 1954, in the Southern District of California, N---- was convicted of the crime of conspiracy in violation of 18 U.S.C., section 371, in that he conspired with others to sell, dispense and distribute heroin in violation of 26 U.S.C., sections 2553, 2557, and to conceal, and facilitate the concealment and transportation of, heroin in violation of 21 U.S.C., section 174.
The special inquiry officer found the alien deportable under section 241 (a) (11) of the Immigration and Nationality Act of 1952. The Board of Immigration Appeals ordered the proceeding terminated on the ground that section 241 (a) (11), which provides for the deportation of aliens who traffic in narcotics, does not embrace aliens convicted of "conspiracy to violate" narcotic laws. The Board's opinion points out that the prior law, the Act of February 18, 1931, specifically included the phrase "conspiracy to violate." The Board attaches controlling importance to the absence of the phrase in the 1952 act.
Section 241 (a) (11) reads as follows:
(11) is, or hereafter at any time after entry has been, a narcotic drug addict, or who at any time has been convicted of a violation of any law or regulation relating to the illicit traffic in narcotic drugs, or who has been convicted of a violation of any law or regulation governing or controlling the taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, exportation, or the possession for the purpose of the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation or exportation of opium, coca leaves, heroin, marihuana, any salt derivative or preparation of opium or coca leaves or isonipecaine or any addiction-forming or addiction sustaining opiate.
I agree with the Board that the crime of conspiracy, as defined by 18 U.S.C., section 371, is a separate and distinct offense from the crime which is the object of the conspiracy ( Braverman v. United States, 317 U.S. 49 (1942); United States v. Bayer, 331 U.S. 532 (1947); American Tobacco Company v. United States, 328 U.S. 781 (1946); United States v. McElvain, 272 U.S. 633 (1926)). I do not agree, however, with the Board's ultimate conclusion with respect to its interpretation of the Immigration and Nationality Act of 1952. The controlling phrase in section 241 (a) (11) is "relating to." On its face it is broad enough to cover a conviction for conspiracy to violate the narcotic laws. Courts have construed the phrase to have broad coverage ( Bowles v. Ohio Fuel Gas Co., 65 F. Supp. 426 (N.D. Ohio, 1946), aff'd 158 F. (2d) 814 (6th Cir., 1947); Commonwealth v. Mathues, 210 Pa. 372, 407, 59 A. 961, 975 (1904)).
The Subcommittee of the Senate Committee on the Judiciary, reporting on the Bill, stated (S.R. 1515, April 20, 1950):
The sub-committee recommends that the immigration laws contain specific provision for the deportation of aliens who have been convicted of any law pertaining to narcotics. Such aliens should be deportable, whether the conviction occurred prior to or after entry into the United States. The deportable class will include those convicted under any law in this country pertaining to narcotics or under any such law of a foreign country.
It seems clear that it was the Subcommittee's intention to broaden the coverage of the immigration laws with respect to aliens convicted of laws "pertaining to narcotics."
For the foregoing reasons the decision and order of the Board are reversed.