A-7241069.
Decided by Board June 4, 1954.
Single scheme of criminal misconduct — Section 241 (a) (4) of Immigration and Nationality Act.
When a criminal act accomplishes a specific and individual criminal objective of and by itself, then the alien who performs it becomes deportable when he again commits another such act, provided he is convicted of both. Therefore, conviction on two counts of forgery of Government checks in the same locality on two dates about one month apart with respect to checks made payable to the same person is not regarded as conviction of two crimes arising out of a single scheme of criminal misconduct within the meaning of section 241 (a) (4) of the Immigration and Nationality Act. The fact that the modus operandi in each instance was the same, that the victim in each instance was identical, or that the respondent may have had an overall plan envisioning the perpetration of both of the individual crimes is of no moment. Two crimes do arise out of a single scheme of criminal misconduct when both are part and parcel of a course of criminal conduct designed to accomplish a specific and limited criminal objective.
DEPORTABLE:
Immigration and Nationality Act — Section 241 (a) (4) — Convicted of two crimes involving moral turpitude; forging and uttering Government checks — 18 U.S.C. 495 — Two counts.
BEFORE THE BOARD
Discussion: On March 2, 1954, this Board dismissed the appeal from the special inquiry officer's order of deportation. The case is now again before us on motion for reconsideration.
The record relates to a 27-year-old female alien, a native and citizen of Poland. She has resided in the United States continuously since her admission at New York on July 2, 1949, as a nonquota immigrant, under the provisions of section 4 (a) of the Immigration Act of 1924. She is married to a native-born United States citizen and has two native-born minor citizen children. At the time of the hearing she was expecting the birth of a third child.
The respondent was convicted, on her plea of guilty, in the United States District Court for the District of Connecticut, on May 25, 1953, on each count of a two-count criminal information charging her with forging and uttering Government checks ( 18 U.S.C. 495), committed at Ansonia, Connecticut, on or about March 3, 1952, and April 3, 1952. Imposition of sentence was suspended on each of the two counts and the respondent was placed on probation for a period of two years. Count one charged that on or about March 3, 1952, respondent, having obtained possession of a United States Treasurer's check dated March 1, 1952, and made payable to one A---- G---- in the amount of $85, forged the payee's name to the check and cashed it. The second count charged that on or about April 3, 1952, the respondent, having obtained possession of a United States Treasurer's check dated April 2, 1952, and made payable to the same A---- G---- in the amount of $22.50, forged the payee's name to that check and cashed it.
The question raised on this motion involves construction of section 241 (a) (4) of the Immigration and Nationality Act of 1952. Specifically, the issue to be decided here is whether or not Mrs. Z---- has been convicted of two crimes "arising out of a single scheme of criminal misconduct."
Counsel has referred to a statement we made in our prior opinion, wherein we stated: "In the instant case the alien was convicted on pleas of guilty to two counts charging the commission of crimes violating section 495 of Title 18, U.S.C., in the same locality on two different dates by forging checks made payable to two different persons." He points out that such statement is incorrect, since the payee was the same in each instance. He then argues that it is because the checks of only one payee were here involved that there is only one scheme of misconduct.
We find that the inadvertent misstatement in our prior opinion does not require any change in the decision we then reached. As we view the situation, it makes no difference whether the payee was the same or a different person in each instance. That is, we conclude that the misstatement was immaterial, for reasons which we will set forth hereinafter.
Counsel urges that the situation presented in this case has no parallel to that with which we were confronted in Matter of A----, 532/271, 5 IN Dec. 470, relied upon by us previously, wherein the alien committed robbery on different occasions, in three different towns on three different individuals. Apparently, this distinction is based on the theory that there can be only one "single scheme of criminal misconduct" when the checks of only one payee are forged and cashed.
Such a construction is not, in our opinion, permissible. To us, the natural and reasonable meaning of the statutory phrase is that when an alien has performed an act which, in and of itself, constitutes a complete, individual and distinct crime, then he or she becomes deportable when he or she again commits such an act, provided he or she is convicted of both. The fact that the acts may be similar in character, that the same person is the victim in each instance, or that each distinct and separate crime is part of an overall plan of criminal misconduct is immaterial (cf. Matter of D----, E-077114, 5 IN Dec. 728, B.I.A., April 7, 1954).
Counsel also urges that if the respondent's acts did not arise out of a "single scheme of misconduct," it is impossible to conceive of any case where the statutory phrase would apply. In this connection, we differentiate the situation which obtains here from that wherein two crimes flow from and are the natural consequence of a single act of criminal misconduct. That is, we distinguish it from the case where there are two separate and distinct crimes in a transaction which morally constitutes only a single wrong. For example, a counterfeiter may be indicted in one count for possession of a bill, and in another for passing it, though he cannot pass it without having possession; so also, a person might break and enter a store with intent to commit a larceny and in connection therewith commit an assault with a deadly weapon upon the night watchman who seeks to prevent the larceny (cf. Matter of D----, ( supra)). (Note: — However, with reference to the latter example, we would reach a different result if, after breaking, entering, committing larceny and assault in one store, the person did the same thing in the adjoining store.)
Counsel's final contention is that the decision in the Weiss case ( Weiss v. United States, 120 F. (2d) 472) is controlling here. We, however, find that it is not. As we read the Weiss case, the circumstances with which the court was confronted and those now before us have no parallel. Therefore, we conclude that counsel's contention in this respect is without merit.
Weiss was hired as an architect by the State of Louisiana to prepare plans and specifications for a school building, to draw the contract between the contractor and the State, to supervise and inspect the actual construction, to issue certificates for expenses and contract payments as the work progressed and, in general, to represent the State to assure proper performance of the contract as inexpensively as possible. He was indicted for using the mails to carry out a scheme to defraud the State, its educational institutions, and its taxpayers out of $56,914.42 by fraudulently increasing the contract price, and by filing and collecting for fictitious extra work, in violation of 18 U.S.C.A. 338 (now 1341).
Count one of the indictment charged Weiss with mailing his architect's certificate calling for payment of $3,000, in furtherance of and for the purpose of executing the scheme to defraud. Count two dealt with his causing to be mailed his architect's certificate for $74,818.71 from New Orleans, La., to Ruston, La., and count three dealt with his causing the certificate covered by count two to be mailed from Ruston, La., to the State auditor, both in furtherance of and for the purpose of executing the scheme to defraud. The mailing of the certificate covered by counts two and three occurred about a year subsequent to the mailing of the certificate covered by count one. Weiss was convicted on all three counts and received a 5-year sentence on count one, the sentence on counts two and three being suspended.
On appeal from the conviction by the district court, Weiss contended, inter alia, that he was tried simultaneously on two separate and distinct schemes to defraud. That is, apparently, he argued that the indictment was void for duplicity. The court of appeals, in affirming the conviction, held that the indictment charged but one "scheme" to defraud because it appeared from the evidence that the transactions mentioned in the various counts of the indictment were but separate steps in the execution of one systematic plan to defraud. It is this pronouncement of the court that counsel would have us apply to the present case.
In the first place, in connection with the Weiss case, the court was considering a different statute from the one involved here. The word "scheme" in section 241 (a) (4) of the Immigration and Nationality Act of 1952 is modified by the word "single," which is not the case in 18 U.S.C.A. 338, the statute involved in the Weiss case, and we find this difference to be most significant. That is, we feel that Congress created a definitive distinction in the meaning of the word "scheme" as far as these two statutes are concerned.
Second, we take the fair meaning of section 241 (a) (4) to be that when a criminal act accomplishes a specific and individual criminal objective of and by itself, i.e. — without regard to any other such act and when considered completely apart from it, then the alien who performs it becomes deportable when he or she commits another such act, provided both such acts are followed by convictions. As applied to the facts of the present case, this means that when the respondent received the money from the first forged check she accomplished a specific criminal objective; and that when she received the money from the second forged check she accomplished another and distinct criminal objective. The accomplishment of each criminal objective, the obtaining of the money in each instance, was a complete crime in and of itself and without reference to the other. The fact that the modus operandi in each instance was the same, that the victim in each instance was identical, or that the respondent may have had an overall plan envisioning the perpetration of both of the individual crimes is of no moment, at least not as we view the situation.
Third, and in our opinion, two crimes do arise out of a "single scheme" when both are part and parcel of a course of criminal conduct designed to accomplish a specific and limited criminal objective. To repeat an example, we refer to the case of the man who breaks and enters a building to commit larceny and assaults the guard who surprises him in the act of committing the larceny. The larceny is the specific and limited criminal objective and the assault merely an incident thereto and necessary to the accomplishment thereof. In such case, we would hold the crime of larceny and the crime of assault to be two crimes arising out of a single scheme of criminal misconduct.
Finally, the construction urged upon us by counsel would, if followed to its logical conclusion, result in extreme absurdities. It would render section 241 (a) (4) of the Immigration and Nationality Act of 1952 completely inapplicable in any case where an alien committed myriad crimes, provided he or she first had the foresight to, or even the prescience to claim that he or she did formulate a broad plan of criminal misconduct, or even the devotion of his or her entire life to crime. Such a construction is clearly unjustified and unjustifiable.
On the basis of the foregoing, we find that this respondent has been convicted of two crimes not arising out of a single scheme of criminal misconduct. Therefore, we conclude that she is deportable under the provisions of section 241 (a) (4) of the Immigration and Nationality Act of 1952. No other issue has been presented for our consideration. Accordingly, we will deny this motion.
Order: It is ordered that the motion be and the same is hereby denied.