In EXCLUSION Proceedings

MA lilt OF S—

In EXCLUSION Proceedings

A-10494958

Decided by Board May 15.1962

Inadmissibility—Crime prior to entry—Conspiracy.

(1) Conviction on a plea of guilty to a general conspiracy stated in one count

to commit, among other offenses, the crimes of forgery in the third degree

and uttering a forged instrument, which are crimes involving moral turpitude, is conviction of

crime involving moral turpitude and appellant is

excludable under section 212(a) (9) of the 1952 Act

(2) A plea of guilty to a conspiracy count is a plea to the entire count In

the absence of a showing to the contrary.

.

EXCLUDABLE:

Act of 1952—Section 212 ( a ) (9 ) [8 U.S.C. 1182 (a ) (9) ] —Convicted of crimes involving moral turpitude, to wit: Assault and

babtery (N.J., 102:7) ; failure to file State ineo_ne tax return

(Calif., 1926); conspiracy, gambling and owning and operating

a gambling establishment (N.Y., 1956).

Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20)1—No

immigrant visa.

Act of 1952—Section 212(a) (27) [8 U.S.C. 1182(a) (27)1—Entry

prejudicial to the public interest.

BEFORE THE BOARD

DISCUSSION: Appellant is 61 years old, a native of Russia, who

was first admitted to the United States for permanent residence in

July 1912, accompanied by other members of his family. He was

naturalized in 1930, but his citizenship was revoked in July 1958.

See Stacker v. United. States, 258 F.2d 112 (C.A. 9, 1958), cert. den.

3M U.S. 90T. The Court of Appeals sustained the finding of the

District Court that despite the passage of 28 years, the Government

had established "by clear, unequivocal and convincing evidence that

the defendant under oath had stated ho had no previous arrests,"

while in fact appellant had "a prior criminal record." The court

had before it other matters of proof and jurisdiction not pertinent

here. The court recited appellant's nine arrests between 1924 and

1928, prior to his naturalization; most of them for "assault and battery" or for "atrocious assault and battery." He was convicted on

688

only one of these charges; his arrest for "atrocious assault and battery" was reduced to assault and battery, for which he paid a fine

of $50 at Newark, New Jersey, on December 14, 1927.

Appellant departed from the United States on or about April 10,

1960, and returned on July 19, 1960. He departed again on January 20, 1961, and applied for readmission on March 20, 1961. In

connection with his last entry the present exclusion proceeding was

instituted. At the time of his return in March 1961 he preSented

an affidavit in lieu of passport (Exh. 4) and an alien registration

receipt card (Form 1-151). The special inquiry- officer found appellant inadmissible on the first two charges set forth above, under

section 212(a) (9) and section 212(a) (20) of the Immigration and

Nationality Act. Appellant appeals from the order of exclusion.

The special inquiry officer found that atrocious assault and battery is a crime involving moral turpitude, but conviction for assault

and battery is not conviction of a crime involving moral turpitude.

The special inquiry officer concluded that appellant did not abandon

his residence in the United States by making two trips to Italy, one

of 3 months' duration and one of 2 months, to see his estranged wife

and their 2 children. The special inquiry officer further concluded

that the Immigration and Naturalization Service has not established

that appellant is inadmissible as a person whose entry is prejudicial

to the public interest. The special inquiry officer found that appellant's conviction for failure to timely file State income tax returns in California in 1955 is not a crime involving moral turpitudo.I

It is not necessary, therefore, for us to consider further the charge

laid under section 212(a) (27).

The special inquiry officer stated that "no probative value" was

being given to the testimony of appellant before Congressional committees investigating organized crime in interstate commerce in New

York and New Jersey. This testimony and the magazine articles and

newspaper clippings referring to appellant's business associates and

gambling activities were introduced in support of the "entry prejudicial to the public interest" charge. These exhibits, 11, 12, 13, 18,

19, and 21, are not now admissible for any purpose, except to establish reputation, and have not been given any consideration by us.

Counsel has alleged in briefs and in oral argument that there was

a "sly scheme" to entrap the alien. A watch notice was pastel for

him before he returned from his first trip to Italy, but he returned

without being apprehended. He was interviewed by the Immigration

Service unce between his first and second . trips. Following his see1 The special inquiry officer has included in an Appendix to his decision the

pertinent section of the various statutes under which appellant has been

convicted.

654377-68---45

689

and trip to Italy a year later, he was apprehended by an inspector

who found his name in a "Lookout Book" when he entered via plane

at California. Counsel contends that appellant should have been

warned by the Immigration Service following his denaturalization

that if he went abroad he might not be readmitted, that the Immigration Service has pursued a policy of warning aliens but deliberately refrained from warning appellant. Entrapment is a criminal

law concept,2 and has no appropriate place in this case. Counsel

claims that the Immigration Service failure to apprehend him at

New York on his first return was "lulling" him into a sense of

security (counsel's pre-decision memo, p. 3), and refers to appellant

as an "unwary victim." Appellant has had continuous competent

legal assistance for years, defending him in criminal prosecutions,

representing him when he' has testified before various investigatory

bodies, and in immigration matters. Counsel declares that, while the

usual practice of the Immigration Service is to notify an alien that

he might be excludabh or could be excluded upon reentry, in this

case the Service delivered to appellant his alien registration card in

1959 without any such warning. The examining officer has stated

that at the time the "watch notice" was posted the Service was not

aware of appellant's conviction at Saratoga, New York in 1952. AR

investigator for the Immigration and Naturalization Service at

Los Angeles testified that appellant's record was given iim in Janu

ary 1959 for the purpose of registering appellant under the Alien

Registration Act. The witness testified that he concluded on the

basis of the record then before him that Mr. S did not fall within

the excludable classes. The fact that the Government posted a

lookout notice for Mr. 5-- before his first return from Italy in June

1960 (p. 8, oral argument) at various ports, including the Northeast

Region, but failed to apprehend him until the occasion of his second

return, does not constitute "entrapment" by the Immigration Service,

either on the law or the facts.

Concerning counsel's contention that the Service conduct was improper with regard to appellant's departures and reentries, see

Klapholz v. Esperdy, 201 F. Supp. 294 (S.D., N.Y., 1961), referring

to the standard procedure of "Lookout Book," detention by an

2 Entrapment. The act of officers or agents of the Government in inducing& person to commit a crime not contemplated by him for the purpose of instituting a criminal prosecution against him. Faiden v. Commonwealth, 167

Va. 549, 189 S.E. 329, 332. Lee v. State, 66 OkL Cr. 399, 92 P.2d 621, 623.

But the mere act of an officer in furnishing the accused an opportunity to

commit the Crime, where the criminal Intent was already present In the ac-

case '4 mind, is not ordinarily entrapment. State v, Cowling, 1.61 Wash. 519,

297 P. 172, 174. Black's Law Dictionary (Fourth Edition),

690

immigrant inspector, and parole into the United States pending

determination of admissibtlity. 4

Counsel states that appellant lives from the proceeds of a $1,000,000

note resulting from the sale of some of his properties in Nevada and

that he has not been engaged in gambling activities in the past ten

years. Stadler v. United States, 258 F.2d 112, 116, fn. 11, states

that in July 1950 defendant purchased "an interest" costing roughly

$91,000 in two corporations, the Bank Club of Nevada, Inc., and the

Golden Security Company. According to his tax attorney he sold his

interest in the Golden Hotel and the Bank Club of Reno in May 1952

and received $86,000 cash, a one-third interest in the Earl Carroll

Theater Building in Hollywood, valued at $97,000, and "Installment

Notes" of $1,166,000.

Following his indictment by the Extraordinary Grand Jury on

September 8, 1052, sitting in Saratoga County, New York, for the

crimes of conspiracy, gambling, owning and operating a gambling

establishment, and forgery in the third degree, appellant went to

Nevada. A State court in Nevada refused to extradite appellant to

New York. The extradition proceedings went to the Supreme Court

as State of Nevada v. Stacher, 346 U.S. 906 (1953), and in a per

curiam memorandum decision the Supreme Court reversed the Court

for the 7th Judicial District of Nevada, citing Biddinger v. Commissioner of Police, 245 U.S. 128 (1917), and Pierce v. Creecy, 210

U.S. 387 (1908). Biddinger states the rule (p. 134) that a fugitive

from justice:

• . . If found in another State must be delivered up by the Governor of

such State to the State whose laws are alleged to have been violated, on the

production of such indictment or affidavit, certified as authentic by the Governor of the State from which the accused departed. Such is the command

of the Supreme law of the land, which may not be disregarded by any State.

. . . that when the extradition papers required by the statute are in the

proper form the only evidence sanctioned by this court as admissible on such

a Learlug is such as teals to prove that the accused was not in the demanding State at the time the crime is alleged to have been committed.

Pierce v. Creecy, supra, is to the same effect saying:

• .. This indictment meets and surpasses that standard, and is enough. If

more were required it would impose upon courts, in the trial of writs of

habeas corpus, the duty of a critical examination of the laws of States with

whose jurisprudence and criminal procedure they can have only a general

acquaintance. Such a duty would he an intolerable burden, certain to lead to

errors in decision, irritable to the just pride of the States, and fruitful of

miscarriages of justice. (p. 405)

The court in Kiaphola had no criticism of thic standard procedure and

found that a conviction following parole into the United States rendered the

alien excludable as a person convicted prior to admission of a crime involving moral turpitude, sustaining the finding of the special Inquiry officer and

the Attorney General, and overruling the Board on this point.

691

The Supreme Court decided that the indictment was in the form

and certified as required by the law, and that the appellant did not

deny that he was in the State of New York at the time the crime

was committed. Counsel contends that the indictment is ambiguous

and uncertain. The Supreme Court implicitly found to the contrary.

Following the Supreme Court decision appellant returned to Saratoga, New York, and on December 29, 1953, entered a plea of guilty

to twenty counts of the indictment pending against him.

Appellant pleaded guilty to the crime of conspiracy as set forth

in the first count, and the crimes of gambling and owning and operating a gambling establishment, counts 14 through 32. Appellant

pleaded guilty to 20 counts, including the.first count, paid a fine

of $600 on each count, the total fine amounting to $10,000. In ad. it:tion, upon motion of the Special Assistant Attorney General, the

court sentenced appellant to serve one year in the Saratoga County

Jail on his plea of guilty to the crime of conspiracy, and execution

of the jail sentence was suspended. The principal question before

this Board is the scone of appellant's plea of guilty to the first

count. Only if appellant has been convicted of the commission of a

crime involving moral turpitude is he excludable from the United

States in this proceeding The only crime found by the special inquiry officer to involve moral turpitude is the 'crime of conspiracy

to commit "forgery in the third degree" and "uttering a forged instrument." It is our conclusion that the appellant's plea of guilty

included an admission of guilt of all the offenses set forth under

count one.

Counsel has discussed at length, both in briefs and in oral argument, the fact that the indictment and certificate of conviction

(Exh. 6) came to us from the Office of the Attorney General of the

State of New York, rather than from the Office of the County Clerk

of Saratoga County. The certification, part of Exhibit 6, carrying

the seal of the Attorney General of New York states: "This is to

certify that the attached is an exact copy of an indictment of the

Extraordinary Grand Jury of the County of Saratoga, State of New

York v. M—L—, J—S—, et al., filed September 8, 1952, on file in

this office. This office is the official custodian of the aforesaid records." The certification is signed for Louis Lefkowitz, Attorney

General of the State of New York, by Paxton Blair, Solicitor General of the State of New York. A considerable portion of counsel's

argument and memoranda have boon devoted to the authenticity and

.source of the copies of the indictment and certificate of conviction.

It is his contention that they are not certified under the hand and

seal of the Clerk of the Supreme Court of the State of New York

for the County of Saratoga, the proper forum, but instead by the

Attorney General who declares himself to be the official custodian of

692

compares this with the prosecuting attorney

sitting in judgment on the merits of the case. This is not a legitimate analogy, because the adjudication was, of course, made by the

court.

The record contains (also part of Exh. 6) a letter from the present Saratoga County Clerk stating that he made a search of the

records in the County Clerk's office and was able to find no indictment again s t J S on file in that office. He refers the, officer of the

United States Immigration Service to the Attorney General's office

at Albany for papers pertaining to the investigation that have not

been filed with the County Clerk. This alien has been engaged in

constant litigation, at least since 1952, with denaturalization and

extradition proceedings, and income tax, conspiracy and gambling

prosecutions. All the papers may have been removed from the office

of the County Clerk in connection with any une of these proceedings

or other investigations.

We have no doubt as to the authenticity of these documents, even

though they came from the Attorney General of the State of New

York rather than from the Circuit Court, or the office of the County

Clerk. The Certification of the Librarian, State of New York Department of Law (April 25, 1961), covering the order of the Governor of New York of April 2, 1951, and other communications

comprising Exhibit 6 indicate that the Office of the Attorney General was a proper custodian and source of these documents,

the records Connse,1

—

—

The "certificate of conviction" recites that the appellant was

indicted "for the crimes of conspiracy, forgery in the third degree,

gambling and owning and operating a gambling establishment, PL

§ 580, § 932, § 889, § 970 and § 973, committed in the County of

Saratoga, State of New York." The certificate continues by stating

that at the arraignment and with the consent of the defendant,

J—S—, "the said indictment was amended to charge the defendant

with the crimes set forth in counts fourteen through_twenty one, inclusive . . . and the indictment was further amended to add counts

twenty-two through thirty-two, inclusive, charging violations of

section 970 of the Penal Law on the dates of August 3, 1947 to

August 15, 1947." The certificate does not state that count one was

amended. The certificate of conviction then continues:

-

indictment as above set forth,

the said J—S- , the above-named defendant, pleaded guilty to the crimes of

conspiracy, gambling and owning and operating a gambling establishment in

violation of section 970 of the Penal Law, constituting the first count, the

fourteenth to the twenty - first counts, inclusive. and the twenty-second through

the thirty-second counts, inclusive, of said indictment, as amended, to cover

the said amended indictment.

Thereupon, following the amendment of the said

The certificate of conviction then recites that the defendant was

thereupon sentenced to the fine and penalties as set forth above.

693

Counsel attempted to introduce into the record testimony of appellant as to which portions of the indictment he intended to plead

guilty to, on the ground that the certificate is ambiguous. The special inquiry officer refused to permit the testimony. In argument

before the Board, counsel stated that appellant pleaded guilty to

nineteen substantive counts of gambling or operating a gambling

establishment and that he also pleaded guilty to the first count, the

conspiracy count, only as to that portion that dealt with gambling,

because he was not denying an interest in, or that he did, for a time,

operate this gambling casino. Counsel argued further that there

were 12 nongambling counts in the indictment, dealing with third

degree forgery under the New York Code, or obtaining the signature

of a person to a written instrument, like a liquor license, with intent to defraud or cheat, but that appellant did not plead guilty to

any of the nongambling substantive counts. As to appellant, those

counts were dismissed. Counsel states that in the amended indictment "the court added" additional gambling counts (twenty-two

through thirty-two), covering different dates, and operating a gambling casino, covering additional dates, and the common gambler

count, but that none of the substantive counts to which appellant

pleaded guilty covered the forgery charge.

Appellant did not plead guilty to counts two through thirteen.

However, the same plan, scheme and organization is described in

these counts as that described in the conspiracy count, except that it

is described in greater detail. By his pleas of guilty to the other

counts he admitted his participation in the plan or "conspiracy."

Counts two and three charge appellant and others with unlawfully

and feloniously obtaining the signature of certain persons to a summer liquor license in the name of a person who was not actually the

sole proprietor and partner in the restaurant, in violation of section

932 of the Penal Law, of "obtaining the signature of a person to a

written instrument with intent to cheat and defraud, designedly, by

aid of false pretense in violation of section 932 of the Penal Law,"

the written instrument involved being a lease, and that the coconspirators (five in number), including S—, obtained the signatures

of two other persons to an application for a summer liquor license,

which application alleged U— to be the bona fide proprietor of the

premises, that none of the partners had ever been arrested or indicted for any crime, that no person other than U— was interested

in the business, or had a lien or mortgage thereon, or had been known

by any other name, etc., all of which allegations the defendants

knew to be untrue, and all of which statements were made to defraud the New York State Liquor Authority.

The fourth and fifth counts allege the crime of forgery in the

—

third degree in violation of section 889 of the Penal Law by falsi694

lying leases and making a false statement of the financial condition

of the Arrowhead Inn through the period August 1, 1946, to August

31, 1946, for the purpose of creating the illusion that the restaurant \

enterprise was owned and operated independently, that money for

-

rent had been paid out in good faith, and that M—F— had sustained

loss of $31,782 during this period. This count alleges that the

statement of financial condition was compiled by defendants in order to conceal from the New York State Liquor Authority the truth

toncerning the particulars alleged.

Counts 6, 7, 8, 9, 10, 11, 12 and 13 all include S— as one of the

codefendants and all allege the crime of forgery in the third degree in violation of paragraph 1 of the first subdivision of section

889 of the Penal Law. These counts include allegations set forth

above in other counts and all relate to unlawfully, knowingly and

corruptly falsifying writings or financial summaries relating to the

operation of the restaurant, alleging sums paid out as rent that had

not been paid in good faith; that no actual audit of the books was

made as had been alleged; that the statements of financial condition

were compiled, prepared, and issued with the intent to defraud the

New York State Tax Commission and the Collector of Internal

Revenue of the United States who were creditors for income tax

purposes of the defendants and M—U—; and that these false statements of financial condition were compiled, prepared, and issued for

the purposes, not only of concealing the interests and financial condition of the defendants from the New York State Tax Commission

and the Collector of Internal Revenue, but also of deceiving the

New York State Liquor Authority. It is alleged that statements

relating to the financial condition of Arrowhead Inn omitted material entries with the intent of concealing the fact that the restaurant

operated at a substantial loss, that the false entries in financial statements wore made with intent also to defraud creditors. Counts

twelve and thirteen describe a checking account in a fictiticus name

in which money (checks) was deposited and withdrawn, this money

being the proceeds of gambling conducted at the Arrowhead Inn,

and allege that this activity was for the purpose of misleading state

and federal tax agents, and that these acts constituted violations

not only of section 889 of the Penal Law but also of sections 970

and 973. Mr. S-- did not plead guilty to counts two through thirteen described above, but they describe the same scheme as that set

forth in count one, and the other substantive counts to which he

did plead guilty.

In the indictment (unamended) in our record Mr. 5— is not

named in counts fourteen through seventeen, but he did plead guilty

to there etnintR, which allege the crimes of gambling in violation of

section 970 of the Penal Law, and of owning and operating a gam695

Ming establishment in violation of section 973 of the Penal Law,

specifically, of operating and conducting for their personal gain

games of chance including roulette, chemin de fer, birdcage and

craps, and keeping a building and casino adjacent to the Arrowhead Inn for these purposes.

In counts eighteen through twenty-one appellant is named as a

co-defendant (aider and abbettor), and these counts charge conunis&ion of the crime of gambling and owning and operating a gambling

establishment in violation of sections 970 and 973 of the Penal Law,

and that the defendants were not inhabitants of or usually or publicly resident within the State of New York.

The special inquiry officer found that gambling and owning and

operating a gambling establishment and being a common gambler

under sections 970 and 973 of the New York Penal Code are not

crimes involving moral turpitude. We agree that the offenses set

forth in counts fourteen through twenty-one, and, so far as we can

tell from the certificate of conviction, those offenses described in

counts twenty-two through thirty-two, are not crimes involving

moral turpitude. If appellant is excludable for the commission of

a crime involving moral turpitude prior to entry, it is on his plea

of guilty to count one. We agree that Mr. S—, in pleading guilty

to count one, pleaded guilty to the entire count.

Count one indicts the defendants in broad terms of violating six

sections of the Penal Code, and the indictment then states, not as

overt acts or as substantive counts, but as "parts of the conspiracy,"

the following agreements: Parts (1) to (5) relate to the setting up

and operating of the restaurant and casino. Parts (6) and (7) relate to the obtaining of a. local figure to sign leases as tenant of the

property, the leases to be "conditioned upon the granting of a slimmer liquor lieenae," to procure in successive years the necessary liquor and other licenses, to conceal from federal and New York State

liquor and tax authorities the identity of the true principals. Parts

(8) to (10) relate to obtaining a local figure to act as a respectable

"front" for the organization, and set forth the aim of the restaurant to serve excellent food and offer superior entertainers to attract as guests a moneyed clientele. Part (11) alleges establishment

of checking accounts in false names in which to deposit the checks

taken in the casino. Part (12) alleges the establishment of a dummy

corporation to pay the expenses of the operation. Part (13) allogos the stock was to be held in the dummy corporation and officers and directors thereof were to be selected so as not to disturb

the true owners

- in their beneficial enjoyment. Part (14) alleges

that distorted financial statements were to be prepared and issued

by accountants "to heighten the illusion" that the restaurant was a

bona fide enterprise and to mislead the New York and federal liquor

696

the defendants should

raid income tax authorities. Part (15) nil

share in fixed proportions the net profits of the gambling operations.

Part (16) alleges the defendants should utilize the capital of the

corporate defendant for their personal use without regard for and

in violation of statutory injunctions regarding the use and transfer

of corporate capital, property and stock. Part (17) alleges the

defendants should withhold and divert from the person in whose

name the restaurant operation was conducted, the true records and

should conceal and destroy these records.

Of the 42 overt acts which then follow, two overt acts, (15) and

(24), refer to the "defendants" without naming specific names.

Overt acts (13), (23) and (27) state that S— was a copartner in

operating the casino and the gambling at Arrowhead Inn, and that

he was in daily attendance at the casino and conferred with and

issued instructions to employees.

Section 881 defining "uttering forged instruments" has three sections. Section 889, defining "forgery in the third degree" (pp. 4

and 5, Appendix, Special inquiry officer's decision), has four subsections, each defining or describing many different kinds of acts.

It is counsel's contention that these sections are divisible and that

from the indictment you cannot tell what subsections of these statutes, particularly section 889, appellant is alleged to have conspired

to violate, or what sections or subsections he pleaded guilty to. The

rules of criminal pleading do not require the same degree of detail

and technical precision in an indictment for conspiracy in stating

the object of the conspiracy as is required when the indictment

charges the substantive offense. Thornton v. United States, 271 U.S.

412, 423 (1926), and Wong Tai v. United States, 273 U.S. 77 (1927),

and cases cited therein. The indictment was sufficient to advise the

defendant of what he had to meet, and sufficient to protect him

against subsequent prosecution for the same offenses. The indictment states clearly, particularly in count one, paragraphs 4 and 17

(pp. 3 and 5, indictment) that the acts- recited therein were done

"to conceal" the identity of the true principals from, and "to mislead," the New York State Liquor Authority and the state and

federal income tax authorities. It is our belief that the conspiracy

count includes crimes involving moral turpitude.

The certificate of elmvintinn sets forth clearly enough the fact

that appellant pleaded guilty to three crimes, (1) conspiracy, (2)

gambling, and (3) owning and operating a gambling establishment

in violation of section 970 of the Penal Law. The offenses to which

he pleaded guilty, as described in the certificate of conviction, are

set forth in "the first count, the 14th to the 21st counts, inclusive,

and the 22nd through the 32nd counts, inclusive." There is nothing in the certificate of conviction to indicate that appellant pleaded

697

guilty to only part of the conspiracy count. A defendant does not

plead guilty to part of a count' He must plead either "guilty"

or "not guilty" to the entire count. We have been unable to discover a case, statute, or precedent of any kind to support counsel's

contention that it is possible to "split a count," and to plead guilty

to part of a count only. Suppose a count charges a defendant with

conspiring to steal a watch and a ring. He cannot say, "I conspired to steal the watch but not the ring." He must plead "guilty"

or "not guilty" to the entire count, and if he denies having conspired to steal the ring, he would, of course, plead "not guilty" to

the entire count.

What is the effect of a guilty plea? The rule is stated in many

cases, and we will cite only a few. Rader v. United States, 288

F.2d 453 (C.A. 8, 1959), 185 F. Supp. 224, 230, declares, "This plea

of guilty has the same force and effect as a conviction by a jury."

Harris v. United States, 288 F.2d 790 (C.A. 8, 1961), holds, "Defendant's plea of guilty was an admission of his guilt and a 'waiver'

of all nonjurisdictional defects and defenses and an admission of

all the facts averred in the information," citing Lipscomb v. United

States, 273 F.2d 860, 865 (CA. 8, 1960).

Williams v. United States, 290 F.2d 217 (C.A. 5, 1961), also

states that a plea of guilty is a judicial admission of all of the

elements of the crime and no proof is needed. "Tt is as conclusive

as the verdict of a jury," says United States v. Swaggerty, 218

F.2d 875 (CA. 7, 1955). See also Novalie v. United States, 254

F.2d 869 (C.A. 5, 1958) ; Thomas v. United States, 290 F.2d 691

(C.A. 9, 1961), wherein the court held that by his plea of guilty

the appellant foreclosed his right to raise objections to the manner in which evidence upon which he was indicted was obtained.

See also //all v. United States, 259 F.2d 480 (C.A. 8, 1958); Edwards v. United States, 256 F.2d 707 (CA. D.C., 1958) ; Berg v.

United States, 176 F.2d 122 (CA. 9, 1949) ; Kercheval v. United

States, 274 U.S. 220 (1927) ; Friedman v. United States, 200 F.2d

690 (C.A. 8, 1953) ; and United States v. Parker, 292 F.2d 2 (C.A.

6, 1961). Maye v. Pescor, 162 F.2d 641 (C.A. 8, 1947), states that

the hearing on a petition for a writ of habeas corpus is not a substitute for the functions of the trial court and that, "The record

does not purport to set out all the facts presented to or known by

the United States Attorney, and we cannot go outside the record

for the facto" (Conte in v. Coaart, Warden, 158 F gcl 676 (CA. 5,

1946)). The plea of guilty admitted all the facts. charged in the

indictment. See also, Dalton v. Hunter, 174 F.2d 633, 635 (C.A.

10, 1949) ; Bugg v. Hudspeth, 113 F.2d 260 (C.A. 10, 1940) ; and

4 Rule 11, Federal Rules of Criminal Procedure, Title 18, also permits the

defendant, with the consent of the court, to plead nob contendere.

698

Norris v. Hudspeth, 114 F.2d 1007 (C.A. 10, 1940); Thornberg v.

United States, 164 F.2d 37 (C.A. 10, 1947); Lindsay v. United

States, 134 F.2d 960 (C.A. 10, 1943), cert. den. 319 U.S. 763;

Spencer v. Hunter, 139 F.2d 828 (C.A. 10, 1944) ; Hawley v. Hunter,

161 F. 2d 825 (C.A. 10, 1947). Therefore, the irregularities in procedure occurring before entry of the plea became harmless and do

not constitute any basis for the vacating of the judgment. United

States v Tiny1a7u1, 264 F. 2d 346 (C.A. 7, 1059), points out that to

hold otherwise would render every judgment based on a guilty plea

open to collateral attack, motion to vacate judgment, etc. (pp. 349,

352).

In United States v. Ben Grunstein and Sons Co., 127 F. Supp.

907 (D.C. N.J., 1955), the court said, "Surely, if, after a criminal

verdict against him, overruling his denial of guilt, one is not permitted to make further denial, he should not be permitted to do so,

when, instead of denying guilt, he has previously formally admitted it. Indeed at times a plea of guilty is given greater scope than

is a judgment of conviction after trial, as where the parties are

not the same in the two proceedings. 31 A.L.R. 261, 278 (1924);

18 A.L.R.2d 1287, 1290 (1951) ; 5 Wigmore, Evidence, secs. 1066,

1346, 1671a."

Many cases concerned with the effect of a plea of guilty arise

when the defendant concludes that the plea of guilty was a mistake, either after he has served a portion of his sentence and wishes

to be released from confinement, or when the sentence following

his plea is much more sex ere than he expected. In Friedman et al.

v. United States, 200 F.2d 690 (C.A. 8, 1952), the indictment consisted of four counts, the first two counts were conspiracy counts,

and the last two counts alleged substantive offenses. The defendant corporation pleaded guilty to one of the substantive counts and

not guilty as to others. The individual defendants pleaded guilty

only to one of the conspiracy counts, conspiring to defraud the

Government. The principal defendant, an officer of the corporation, expected a fine. In fact, he was the only defendant to be

given a prison sentence. The other defendants were given suspended sentences and placed on probation. The principal defendant sought to withdraw his guilty plea. The court discussed at

length the effect of pleas of guilty, the circumstances under which

pleas may be withdrawn, and stated that a guilty plea "is not a

mere admission or extrajudicial confession of guilt; it is as conclusive as the verdict of a jury," and the "defendant who enters

a plea of guilty has no legal right to withdraw the plea" (citing

cases).

The alien in the instant case is somewhat in the position of

Friedman, supra, in that the punishment for his offense is greater

699

than he expected, not in the matter of a prison sentence, but in that

it renders him excludable from the United States. See, particularly, discussion of "collateral consequences" of a guilty plea in

United States v. Parrino, 212 F.2d 919 (C.A. 2, 1954).

Counsel argues that there is no substantive count in the indictment charging a violation of section 881, uttering a fdrged instrument, and that respondent cannot be convicted upon a trial for

conspiracy unless one or more overt acts alleged in the indictment

be proved. The contention that appellant participated in the operation of the gambling establishment but did not participate in

the aspects of the conspiracy which related to forgery ignores the

basic nature of the crime of conspiracy. Even if it were possible

for him to plead guilty to only part of the conspiracy count, he

must still have been found guilty of participation in the entire

combination. The fact that a person is not found guilty of the

substantive offence does not prevent his conviction of the conspiracy

to commit it. The cases hold that if there is concert of design

there need not be participation in every detail of its execution, or

even knowledge of the scope of the conspiracy. It is not necessary

to detail the evidence of the conspiracy in the indictment. If there

is a "meeting of the minds," an understanding and an agreement

with all parties working together toward a single design or purpose, the existence of the conspiracy may be inferred Telm,an v.

United States, 67 F.2d 716 (C.A. 10, 1933), cert. den. 292 U.S. 650.

A plea of guilty to conspiracy admits the existence of the conspiracy as charged, as well as the defendant's participation therein.

United States v. American Packing Co., 113 F. Supp. 223 (D.C.

N.J., 1953).

Where the conspiracy has been conclusively established, slight

evidence connecting accused therewith will suffice, and it is not

necessary to connect him directly with the actual crime committed.

Luteran v. United States, 93 F.2d 395, affirming United States v.

Buck, 18 F. Supp. 213, cert. den. Luteran v. United States, 303

U.S. 644, reh. den. 303 U.S. 668.

The general rule is that a party coming into a conspiracy or

scheme to defraud at any stage of the proceeding, with knowledge

that an illegal scheme or conspiracy is in operation, becomes responsible for all acts done by any of the other parties in furtherance of the common design. We will refer only to a few of the

many cases. In Levy v. United States, (C.A. Wash.) 92 F.2d 688,

the court held that it was proper to instruct the jury that the accused, joining in a conspiracy to defraud by use of the mails, would

be guilty of overt acts by coconspirators, whether immediately participating therein or not. See also, Harris v. United States, 48

F.2d 771; Edwards v. Commonwealth, 74 S.W.2d 949, 254 Ky. 492;

700

Skelly v. United States and Berman v. United States, 76 F.2d 483

(C.A. 10, 1935), cert. den. 55 S.Ct. 914, 295 U.S. 757; People v.

Darr, 179 Ill. App. 130.

The New York courts follow what appears to be the universal

rule, that a prima facie case of conspiracy having been established,

evidence of every act of the individual conspirators done in furtherance of the common purpose was admissible. People v. Connolly, 253 N.Y. 330, 171 N.E. 393 (1930) ; People v. Van Tassel,

156 N.Y. 561, 51 N.E. 274 (1898) ; People v. Pecken8, 153 N.Y. 576,

47 N.E. 883 (1897) ; People v. Miles, 192 N.Y. 541, 84 N.E. 1117

(1908) ; and People v. Candib, 129 N.Y.S.2d 176 (1954).

Appellant having pleaded guilty to the conspiracy count, it is

unnecessary for us to go to the facts of the case or the "overt acts"

alleged. The plea of guilty relieves tic of that necessity. Actually,

there are many overt acts set forth which were done to effect the

object of the conspiracy after the conspiracy had been formulated

and agreed upon. The aims of the group associated with appellant at Saratoga Springs could not have been accomplished without the false front features of the scheme described in the indictment. The beverage license was essential to the operation of the

restaurant and gambling operation. The same may be said of the

portion of the scheme relating to depositing the checks received

by the gambling organization in checking accounts which operated

under false names. The fact that appellant does not admit that

all the overt acts set forth in the indictment were done by him, and

that he did not plead guilty to all the substantive counts, has no

effect whatever upon his plea of guilty to count one. We find that

appellant is inadmissible to the United States as a person who was

convicted prior to entry on a plea of guilty to a general conspiracy stated in one count to commit, among other offenses, the crimes

of forgery in the third degree and uttering a forged instrument,

which are crimes involving moral turpitude.

The special inquiry officer was correct in finding that as the conviction for the crime under consideration occurred in December

1953, prior to the respondent's first reentry on July 19, 1960, he

was then not admissible to the United States. Therefore, when he

last reentered the United States in March 1961 he was not returning

to a lawful residence in the United States, and he was not entitled

to admission as a returning resident without an immigration visa.

The Board adopts the findings of fact and affirms the conclusions of law of the special inquiry officer.

ORDER: It is ordered that the appeal be and is hereby dismiz.led.

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