NASON

Interim Decision #1793

Kam or NASON

In Deportation Proceedings

A-32126968

Decided by Board September 29,1067

Respondent's conviction on a plea of guilty on April 0, 1065 of willfully and

knowingly devising a scheme to defraud by use of the mails rising a fictitious

name from November 1, 1962 to December 31, 1962 in violation of 18 U.S.C.

1341, and his conviction on the same day, in the same court, on his plea of

guilty: of devising a similar scheme to defraud by use of tho mans using

another fictitious name during the period October 2, through October 24, 1963,

in violation of the same statute—convictions of two crimes involving moral

turpitude—are not convictions arising out of a single scheme of criminal mis-

conduct within the meaning of section 241(a) (4) of the Immigration and

Nationality Act.•

-Cnaton:

Order: Act of 1952—Seetion 241(a) (4) [8 U.S.C. 1251(a) (4) )—Convicted of

two crimes after entry—Devising a scheme to defraud

by use of the mails (18 1341) ; and devising

a scheme to defraud by use of the mails (18 II.S.C.

1841).

ON BEHALF OF RESPONDENT: ON BEHALF OF SE/DUCE:

Rita E. Hauser, Esquire R. A. Vielha.ber

300 Madison Avenue Appellate Trial Attorney

New York, mew York 10017

The case comes forward on appeal from the order of the special

inquiry officer entered April 12, 1967 ordering that the respondent be

deported on the charge contained in the order to show cause.

The case was previously considered by us on June 2, 1966 on appeal

from the order of the special inquiry officer dated January 13, 1966

finding the respondent deportable as charged in the order to show

cause, concluding that the crimes for which respondent was convicted

did not arise out of a single scheme of criminal misconduct and order-

ing him deported to Canada. In an order of June 2, 1966, after noting

the diversity of holdings regarding the meaning of the phrase "not

•Reaffirmed. See 394 F. 2d 223 (CA. 2 , 1908).

452

Interim Decision #1793

arising out of a single scheme of criminal misconduct," we found

that deportability had been established.

The respondent applied for judicial review, Nason v. Immigration

and Naturaliaatirm, Service, 370 F.2d 865 (2d Cir. 1967). The court

held that devising a scheme to defraud by use of the mails was a crime

involving moral turpitude; that the respondent was not entitled to

have a lawyer present at a preliminary interrogation before an investi-

gator of the Immigration and Naturalization Service, and that it was

not error to fail to advise him that he had a right to counsel; and that it

was not error to receive in evidence at the deportation hearing the

respondent's sworn statement made at the preliminary interrogation.

However, the court held that the Board's method of appraising the

evidence was not L satisfactory application of the rule required in

•deportation proceedings of clear, unequivocal and convincing evidence

as held by the Supreme Court in TV oodby v. Immigration and Natura2-

4zation Service, 884 U.S. 904 (1966) ; that it was necessary to decide

the issues on the record as a whole. On March 28, 1967, we remanded

the case for further proceedings in accordance with the opinion of

the court .1

We will briefly review the facts. The respondent, a native and citizen

of Canada, now 81 years old, was admitted to the United States for

permanent residence on April 29, 1961. On April 9, 1965 he pleaded

guilty to three counts of an information in the District Court for the

Southern District of New York for =lawfully, wilfully and know-

ingly devising a scheme to defraud by use of the mails using the ficti-

tious name of "Charles C. Cole" from November 1, 1962 to December

31, 1902 in violation of 18 U.S.C. 1341. On the same day in the same

court he also pleaded guilty to three additional counts of the informa-

tion for devising a similar scheme in violation of the same section, using

the fictitious name "Peter Hughes," during the period from October

2, through October 24, 1963. Upon his plea of guilty to these six counts

petitioner was given a suspended sentence and placed on probation for

two years. The special inquiry officer, the Board, and the court found

that each of these crimes involved fraud and hence moral turpitude

within the meaning of 8 U.S.C. 1251(a) (4).

In his order of April 12, 1967 the special inquiry officer compared

the respondent's sworn statement of June 15, 1965 with his testimony

at the deportation hearing on August 8, 1965 and found that the re-

2 We noted the dissent of Chief Judge Lombard who found the evidence as to

deportability to be clear, unequivocal and convincing, and that no testimony could

support the claim that these two felonies, so removed in time, and void of any

conceivable continuity, could have arisen out of a "single scheme" as Congress

intended that phrase.

453

Interim Decision #1793

spondent's attempted explanation at the deportation hearing was pat-

ently lame, and that the respondent was not a credible testifier in hia

defense, plus the uncontrovertible fact that the frauds were separated

by ten months. The special inquiry officer concluded that the evidence-

was clear, unequivocal and convincing that the crimes for which the-

respondent was convicted did not arise out of a single scheme of

criminal misconduct.

Counsel argues that the evidence relied on by the special inquiry

officer is not enough to meet the very rigorous burden of proof put

on the Government in deportation proceedings by TV ovarby v. Immi-

gration. and Naturalization Service, 384 U.S. 904, and that the special'

inquiry officer erroneously relied on Costello v. Immigration and Nat-

uralization Service, 311 F.2d 343 (2d Cir., 1962), reversed on other

grounds, 376 U.S. 120 (1964). Judge Medina in the N WO% case referred

to the Costello case and stated that the court concluded in the Costello

case that in the absence of any admissible and relevant evidence other

than the records of conviction (Costello did not testify), the special

inquiry officer was required to find that the petitioner had been con-

victed of two crimes not arising from a single scheme of misconduct.

The court pointed out that in the Nostra ease, by contrast, there was

evidence, other than the record of convictions, which was relevant to

the issue of how many criminal schemes existed.

In the present case, the explanation of the respondent in deporta-

tion proeeedings attempting to clarify and to repudiate his statement

of June 15, 1965, was a weak and unconvincing attempt to lessen the

darnagi.ig effects of the statement against respondent's interest con-

tained in Exhibit 4. The special inquiry officer, who had the oppor-

tunity to view the demeanor of the respondent when testifying, found

him to be not a credible testifier. It is uncontradieted that the frauds

were separated by a period of ten or eleven months_ In addition, close

examination of the records of conviction show that the counts (1),

(2) and (3) of the information involved a scheme to defraud under

the name of Charles C. Cole; and counts (7), (8) and (9) involved

a second scheme to defraud committed some ten or eleven months

later under the name of Peter Hughes. 2

While we have noted the distinction between this case and the

Costello case, the court in the Costello case 3 clearly indicated its dis-

agreement with the views expressed in the cases collected in footnote 8,

"By contrast, in Jeronimo v. Mattil, 157 P.Supp. SOS, the period of time charged

in the first count encompassed the periods of time of the acts charged in

every one of the other counts, and all the acts constituted parts of a common

scheme and plan. •

'311 F.29 343 p. 848.

454

Interim Decision #1793

which are the cases relied upon by counsel. The court in. the Costello

case, the same circuit as in the instant case, noted that the statute

.makes no reference whatever to any "common scheme or plan;" nor

would it seem reasonable to suppose that the Congress intended to

grant immunity from deportation to those who over a period of time

pursued a course of criminal misconduct, involving numerous succes-

aive, separate crimes, consummated at different times but in the same

manner, or with the same associates, or even by the use of the same

fraudulent devices, disguises, tools or weapons. The court stated that

there was no denying the fact that the Congress by the 1952 Act

intended to make it easier rather than more difficult to deport aliens

who were recurrent criminals.

Upon a full conLideration of all the evidence of record, including

the respondent's sworn statement, his testimony, his attempted repudi-

ation of sworn statement (a statement against interest), the finding

of the special inquiry officer that the respondent was not a credible

testifier, and the record of conviction showing two separate and dis-

tinct mail frauds, committed over ten months apart, constituted clear,

unequivocal and convicing evidence that the crimes did not arise out

of a single scheme of criminal misconduct. We kind that respondent is

deportable as charged. The appeal will be dismissed.

ORDER: It is ordered that the appeal be and the same is hereby

dismissed.

455