The opinion
LUMBARD, Chief Judge
(dissenting):
I dissent and vote to affirm the order of deportation. The evidence is so “clear, unequivocal and convincing” in this case, that I see no useful purpose in remanding. The majority readily admits, and I do not see how one could deny, that the record of the convictions coupled with Nason’s admissions at the preliminary hearing was sufficient to warrant a finding that the two crimes did not arise “out of a single scheme of criminal misconduct” by any standard. But because the witness later reversed himself “under leading questioning of [his] counsel and asserted there did exist a single scheme,” my brothers remand.
It seems clear to me that the Board of Appeals did decide the issues on the evidence from the record as a whole, and that it decided that, at very best, Nason’s testimony was inconsistent and patently unreliable. The Board chose not to rely on Nason’s damaging admissions, upon which it might have placed considerable weight. Its view was simply that the record of the two separate and distinct mail frauds, committed over ten months apart, was sufficient evidence upon which to base its finding. I agree.
Here no testimony could support the claim that these two felonies, so removed in time, and void of any conceivable continuity, compare e. g., Barrese v. Ryan, 203 F.Supp. 880, 883 (D.Conn. 1962), could have arisen out of a “single scheme” as Congress intended that phrase.
The evidence was clear, unequivocal and convincing as a matter of law. It serves no purpose for us to remand so that the Board can do again, by merely repeating the formula set forth in the Court’s opinion, what it has already done and what it must obviously do again.