Petitioners Brief — United States ex rel. Carrollo v. Bode

i A te te

Opinion Below 1

Jurisdiction 2

Questions Presented 2

Statement of Case 2

Argument—

I. Conspiracy to engage in the wholesale liquor

business is not a crime involving moral turpi-

tude within the meaning of Section 19 (a) of

the Immigration Act of 1917 (8 U.S.C.155a)___ 55

II. “Warrant for Arrest” and “‘Warrant-Deportation

of Alien” which charged petitioner with con-

spiracy to engage in the wholesale liquor busi-

ness and which declared petitioner deportable

because this offense was a crime involving moral

turpitude are insufficient and defective, and

therefore invalid 11

III. The Court of Appeals for the Eighth Circuit

erred in declaring petitioner deportable because

he was a “repeater” 15

Conclusion 16

TABLE OF CASES

Bermann vs. Reimer, 123 F. 2d 331 ERPEE) 8

Bernhardt vs. United States, 169 F. 2d 983, cert. den.

335 U. S. 903 16

Bilokumsky vs. Todd, 263 U. S. 149 13

Ex parte T. Nagata, 11 F. 2d 178, 180 ________.123. 15 14

Fong Haw Tan vs. Phelan, 333 U.S. 6 . 12

Guarneri vs. Kessler, 98 F. 2d 580 CRD: sieges oe

Hogan vs. Hill, 12 F. Supp. 873 15

II INDEX

Jordan vs. DeGeorge, 341 U.S. 223 2,7,9

Kwock Jan Fat vs. White, 253 U. S. 454 13

Lewis vs. Frick, 233 U. S. 291 13

Maiti vs. Haff, 116 F. 2d 337 (1940) 8

Matter of H _. _.__, 1 I. & N. Dec., 394 (B. I. A., 1943) 6,9

McNealy vs. Johnston, 100 F. 2d 280 : 15

Mercer vs. Lence, 96 F. 2d i22 (1938) 8

Takeo Tadano vs. Manney, 160 F. 2d 665 — WW... 15

Throumoulopolou vs. United States, 3 F. 2d 803 _... 13

U. S. ex rel. Andreacchi vs. Curran, 38 F. 2d 498 _. 10

U. S. ex rel. Berlandi vs. Reimer, 113 F. 2d 429 (1940) 8

U. S. vs. Carrollo, 30 F. Supp. 3, 6, 7 10

U. S. ex rek Guarino vs. Uhl, 107 F. 2d 399, 400... 10

U. S. ex rel. Iorio vs. Day, 34 F. 2d 920 —.. 15

U. S. ex rel. Manzella vs. Zimmerman, 71 F. Supp. 534,

OE THO sthstninn tisortetens cSiciascaennapenes 10

U.S. ex rel. Popoff vs. Reimer, 79 F. 2d 513 (1935) _. 8

U. S. ex rel. Portada vs. Day, 16 F. 2d 328 (1926) _. 8

United States ex rel. Carrollo vs. A. H. Bode, 204 F.

og Se RESTS TNC AS TEE MNBETOO OR INCE ES SOA 5, 11

Ponzi vs. Ward, 7 F. Supp. 736 (1934) 8

Zakonaite vs. Wolf, 226 U. S. 272 . 13

TEXT AND STATUTES

24 C. J. S., Sec. 1585 15

8 U.S.C. 155a 4,5, 11

18 U.S. C. 231 3

18 U.S. C. 336 3

18 U. S. C. 371 2,4

26 U.S. C. 145b 3

26 U.S. C. 3253 2, 4, 6, 8, 9, 11, 13

26 U.S. C. 3321 7

28 U.S. C. 1254 OBR 2

28 U.S. C. 2101 2

Supreme Court of the United States

OCTOBER TERM, 1953.

No.

UNITED STATES OF AMERICA EX REL. VINCENZO

CARROLLO, ALSO KNOWN AS CHARLES V.

CARROLLO, PETITIONER,

VS.

A. H. BODE, DISTRICT DIRECTOR IMMIGRATION

AND NATURALIZATION SERVICE, KANSAS

CITY, MISSOURI, RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

BRIEF OF PETITIONER.

OPINION BELOW.

The opinion of the United States Court of Appeals for

the Eighth Circuit (R. 65) is reported at 204 F. 2d 220.

The District Court wrote no opinion but the findings of

the District Court are found in the record at pages 60, 61,

and 62.

JURISDICTION.

Judgment of the Court of Appeals was entered on

April 28, 1953 (R. 65), and rehearing was denied on May

19, 1953 (R. 77). The jurisdiction of this court is invoked

under 28 U.S. C. 1254 and 28 U.S. C. 2101.

QUESTIONS PRESENTED.

I.

Where petitioner was convicted of the crime of con-

spiracy to engage in the wholesale liquor business (18 U.

S. C. 371; 26 U. S. C. 3253) and was not convicted of con-

spiracy to defraud the government, was the former of-

fense one involving moral turpitude within the meaning

of this court’s decision in Jordan v. DeGeorge, 341 U. S.

223?

II.

Is it a correct statement of the law for the Court of

Appeals to hold that an alien is deportable because he is

a “repeater” (See Decision Below 204 F. 2d 220, 223).

STATEMENT OF CASE.

The petitioner, Vincenzo Carrollo, also known as

Charles V. Carrollo, on the 24th day of January, 1906,

when he was 3 years and 5 months of age, entered this

country at New Orleans, Louisiana. On the 17th day of

November, 1923, he married Caroline DiMaggio, a citizen

of the United States, and to this marriage six children

were born—five daughters and one son. Three daughters

are married and two daughters and one son are at home.

3

The three children at home are minors—daughter age 14,

son age 5 and daughter age 4. The petitioner has resided

in the United States since January 24, 1906 (R. 39).

On October 20, 1939, in the District Court of the

United States for the Western District of Missouri in case

No. 14,578 petitioner, having been convicted of the of-

fense, to-wit: “wilfully, falsely, corruptly and feloniously

committing wilful and corrupt perjury” (18 U. S. C. 231),

was sentenced for a period of four (4) years without costs

(R. 57); on the same date and in the same court in case

No. 14,581 petitioner, having been convicted of the offense,

to-wit: “depositing in the Post Office of the United States

one certain letter concerning a certain gift enterprise and

scheme similar to a lottery” (18 U. S. C. 336), was sen-

tenced for a period of one (1) year and one (1) day, said

sentence to be served consecutively and not concurrently,

with the sentence imposed against petitioner in case No.

14,578, without costs (R. 58); on the same day in the same

court in case No. 14,639 petitioner, having been convicted

of the offense, to-wit: “attempting +o defeat and evade a

part of his income tax” (26 U. S. C. 145b), was sentenced

for a period of three (3) years on Count III to be served

consecutively with the sentences imposed in cases 14,578

and 14,581, and three (3) years on Count IV to be served

concurrently with the sentence imposed on Count III (R.

59).

On July 7, 1950, in the District Court of the United

States for the Western District of Missouri in case No.

17,749 petitioner, having been convicted of the offense, to-

wit: “conspiring to engage in the wholesale liquor busi-

ness, and at the same time, wilfully failing to pay the

special tax required to be paid by wholesale liquor dealers

as charged in Count I, and engaging in the wholesale

liquor business, and at the same time, wilfully failing to

4

pay the special tax required by law to be paid by whole-

sale liquor dealers as charged in Count II (R. 20)” (18

U. S. C. 371; 26 U. S. C. 3253), was sentenced for a period

of two (2) years on Count I and fined one thousand dol-

lars ($1,000.00) on Count I; and for the period of two (2)

years on Count II to run concurrently with sentence im-

posed on Count I and an additional fine of $100.00 on Count

II (R. 21).

Petitioner has served sentence imposed on October

20, 1939, and has served sentence imposed on July 7, 1950,

and is now at liberty on bond.

Warrant for arrest of Alien was issued and proceed-

ings for his deportation were commenced on September 7,

1950, pursuant to the provisions of the Immigration Act

of 1917 (8 U. S. C. 155a). This section provided for (R.

18) the deportation of any alien who, subsequent to May

1, 1917, is sentenced more than once to imprisonment for

one year or more because of conviction in this country of

any crime involving moral turpitude committed at any

time after entry.

Petitioner was a prisoner in the U. S. Penitentiary at

Leavenworth, Kansas, when warrant for his arrest was

served and proceedings for deportation were commenced.

The final hearing was held the 16th day of March, 1951, at

said institution, and on May 10, 1951, the hearing officer

concluded that petitioner was subject to deportation and

ordered that he be deported from the United States on the

charge stated in the warrant of arrest (R. 43).

Appeal was taken to the Board of Immigration Ap-

peals. Decision of Board of Immigration Appeals ren-

dered December 7, 1951, dismissing said appeal (R. 47).

Warrant-deportation of alien was issued by appellee on

December 21, 1951 (R. 52).

5

On the 12th day of June, 1952, application for writ

of habeas corpus was filed in the United States District

Court of the Western District of Missouri, Western Divi-

sion, and a show cause order was issued thereon (R. 6,

7).

On the 19th day of June, 1952, the Honorable Albert

L. Reeves, judge of said court, dismissed the application

for a writ of habeas corpus (R. 63) and from that deci-

sion petitioner appealed to the United States Court of

Appeals for the Eighth Circuit.

On April 28, 1953, the Court of Appeals rendered

its decision affirming ruling of the District Court and on

May 19, 1953, final judgment was entered by the Court of

Appeals denying rehearing (R. 77). From this decision

Petitioner seeks a writ of certiorari by this court to the

Court of Appeals for the Eighth Circuit.

ARGUMENT.

I,

Conspiracy to Engage in the Wholesale Liquor Business

Is Not a Crime Involving Moral Turpitude Within the

Meaning of Section 19(a) of the Immigration Act of

a 1917 (8 U.S. C. 155a).

Petitioner submits that the language of the Court of

Appeals at page 222 of its opinion (204 F. 2d 220), is of

vital importance.

_ But we think the unequivocal declaration by the

Supreme Court “that the crime of conspiring to de-

fraud the United States is a “crime involving moral

turpitude’” requires this court to hold that when

this appellant plead guilty to that very crime and

was sentenced for conspiring to defraud the United

6

States he brought himself within the statute that re-

quires his deportation.

Using the DeGeorge case, therefore, as its authority, the

Court of Appeals has held that Carrollo was convicted in

1950 of conspiracy to defraud the government and is

therefore deportable and this conclusion is reached de-

spite the clear and unmistakable fact (R. 20) that Car-

rollo was found guilty of, and sentenced for, conspiring

to engage in the wholesale liquor business. It would

almost seem that the court below is declaring that con-

spiracy to defraud the United States and conspiracy to

commit an offense against the United States are one and

the same crime. If this were correct a conspiracy to com-

mit a violation of the National Motor Vehicle Theft Act

could likewise be held to be a conspiracy to defraud the

United States.

The fallacy of such an argument, of course, is obvious.

In respect to his conviction in 1950, petitioner was con-

victed on two counts. The first count related to the

conspiracy to violate Section 3253, Title 26, U. S. C., and

the second count related to the substantive violation of

Section 3253 in that he did engage in the business of a

wholesale liquor dealer without paying the required tax.

Now, with respect to this second count the Immigration

and Naturalization Service has unequivocally stated that

such an offense does not involve moral turpitude (Matter

OS FE. te , 11. & N. Dec., 394 (B. I. A., 1943). But

because Carrollo was also convicted for conspiracy to

violate this substantive law, it was then concluded by the

court below that the petitioner had been convicted of

conspiracy to defraud the United States. The decision of

this court in the DeGeorge case does not warrant any

such conclusion. An examination of that decision demon-

strates simply and clearly that there the court was deal-

7

ing with a statute (26 U. S. C. 3321) which is captioned

“REMOVAL OR CONCEALMENT WITH INTENT TO

DEFRAUD THE REVENUE.” In providing fines and im-

prisonment for persons removing or concealing goods or

commodities the law in that instance also contained the

following specific clause: “with intent to defraud the

United States.” Chief Justice Vincent in commencing his

opinion (pp. 223, 224) states as follows:

This case presents only one question, whether

conspiracy to defraud the United States of taxes on

distilled spirits is a “crime involving moral turpitude

within the meaning of Section 19(a) of the Immigra-

tion Act of 1917.”

Then, after reviewing various decisions dealing with the

term “moral turpitude,” he states (p. 229) “in view of

these decisions, it can be concluded that fraud has con-

sistently been regarded as such a contaminating com-

ponent in any crime that American Courts have, without

exception, included such crimes within the scope of moral

turpitude. It is therefore clear, under an unbroken course

of judicial decisions, that the crime of conspiracy to de-

fraud the United States is a ‘crime involving moral turpi-

tude.’”” And again at page 232 of his opinion, “* * * the

decided cases make it plain that crimes in which fraud

was an ingredient have always been regarded as involving

Moral turpitude. * * * Fraud is the touchstone by which

this case should be judged.”

Petitioner has no quarrel with this reasoning and has-

tens to point out that other cases cited by the Supreme

Court in the DeGeorge case as authority for its position

were likewise dealing with conspiracies to violate laws of

the United States by performing some act or acts with

intent to defraud the United States (Italics Supplied).

—_— ST ER 5 NSS HR pm a i MIE RRA Reape ene orate

8

In U. S. ex rel. Berlandi v. Reimer, 113 F. 2d 429 (1940),

and Maita v. Haff, 116 F. 2d 337 (1940), Courts of Appeals

specifically decided that the crime of conspiracy to violate

the Internal Revenue laws by possessing and concealing

distilled spirits with intent to defraud the United States

of taxes involves moral turpitude. Furthermore, in Guar-

neri v. Kessler, 98 F. 2d 580 (1938), the Court of Appeals

held that the crime of smuggling alcohol into the United

States with intent to defraud the United States involves

moral turpitude. Likewise in other deportation cases

where fraud has been proved federal courts have held that

the crime in issue involved moral turpitude.

Bermann v. Reimer, 123 F. 2d 331 (1941).

Mercer v. Lence, 96 F. 2d 122 (1938).

U. S. ex rel. Popoff v. Reimer, 79 F. 2d 513 (1935).

Ponzi v. Ward, 7 F. Supp. 736 (1934).

U. S. ex rel. Portada v. Day, 16 F. 2d 328 (1926).

The above cases dealt with a variety of offenses such as

obtaining goods under false pretenses, conspiracy to de-

fraud by deceit and falsehood, forgery with intent to de-

fraud, using the mails to defraud, and issuing checks with

intent to defraud. In all instances it appears clear and un-

mistakable that the moral turpitude involved in the crime

has its origin in, or springs from, the fraud, or intent to

defraud specifically set out in the statute.

In the instant case we are dealing with a criminal stat-

ute punishing one who engages in the wholesale liquor

business and at the same time wilfully fails to pay the tax

uired to be paid by wholesale liquor dealers (26 U.S. C.

253). Nowhere in its provisions is there any reference to

the United States or an intent to defraud —

These words are not only conspicuous

9

construed as such. If Congress had intended to punish

persons engaging in the business of a wholesale liquor

dealer, with an intent to defraud the United States, Ccn-

gress would have said so in the statute. Congress kas

done so countless times in other provisions of the code (see

cases cited directly above).

In dismissing petitioner’s appeal the Board of Immi-

gration Appeals makes particular reference to this distinc-

tion in referring to the charge in the warrant upon which

it seeks to deport this petitioner (R. 47).

“It may be observed that the appropriate findings

of fact and conclusions of law should have described

the second crime more fully by designating it as a

crime of conspiracy to commit an offense against and

to defraud the United States in violation of 18 U.S. C.

371 and 26 U.S. C. 3253.”

But the respondent has not charged petitioner with the

deportable offense of conspiring to defraud the United

States. Respondent contends that petitioner is subject to

deportation because he conspired to commit a substantive

crime which the respondent itself states is an offense which

does not involve moral turpitude (R. 49). The case at bar

therefore is clearly not within the purview of the De-

George case, supra, since by the language of the statute

itself (26 U. S. C. 3253) petitioner is not charged with con-

spiracy to commit an offense against the United States

with intent to defraud.

Section 3253 of the Internal Revenue Code which Car-

rollo was convicted of conspiring to violate, is merely a

revenue or licensing statute, to use the exact words of the

Board of Immigration Appeals, in Matter 2. SC Se RR aa

Supra, and therefore its violation is not an offense involv-

ing moral turpitude.

10

In reaching this conclusion the Board cited U. S. ex rel.

Andreacchi v. Curran, 38 F. 2d 498, where the court held

that violation of the Harrison Anti-Narcotic Act (38 Stat.

785, 26 U. S. C. 211, 691-707) by an alien did not involve

moral turpitude within the meaning of the Immigration

Act of 1917. The court’s language is as follows at page 499

of the opinion:

“The crime consists not in engaging in narcotic

traffic, but in merely failing to register, pay a tax

and comply with certain regulations of the Internal

Revenue Commissioner. It is to be regarded solely

as a revenue act whatever incidental results might

accompany its enforcement. No case has been brought

to my attention, nor do I find any which holds that

the violation of a revenue or licensing statute involves

moral turpitude. The fact that the thing may be

done, providing a tax is paid to the government, in-

dicates that the act itself does not involve moral

turpitude.”

The Board of Immigration Appeals then goes farther and

says:

“The situation here presented is distinguishable

from that before the court in Maita v. Haff, 116 F.

2d 337, in which it was held that an alien who had

been convicted on a charge of engaging in the busi-

ness of distilling alcohol with intent to defraud the

United States of the tax on the spirits distilled, had

committed a crime involving moral turpitude.”

The case at bar is, therefore, likewise distinguishable and

not a deportable offense.

See also:

U. S. ex rel. Manzella v. Zimmerman, 71 F. Supp.

534, 537, 538.

U. S. v. Carrollo, 30 F. Supp. 3, 6, 7.

U. S. ex rel. Guarino v. Uhl, i07 F. 2d 399, 400.

11

Before leaving this point it should be pointed out

again that the court below declared (p. 222) that Car-

rollo was sentenced (italics supplied) for conspiracy

to defraud the United States. To demonstrate this def-

inite mistake, attention of this court is again respect-

fully directed to pages 20 and 21 of the record where it

shows that Carrollo was sentenced for conspiracy to en-

gage in the wholesale liquor business. In this same con-

nection the attention of the court is also directed to the

footnote at page 221 of the decision below where the

court in speaking of Section 3253 of Title 26, U. S. C.,

states as follows:

Apparently the “special tax” involved was the

tax of $100.00 on wholesale liquor dealers under 26

U. S. C. 3250(a) (1), amended and raised to $200.00

on October 20, 1951.

While it is not urged as controlling the writer would be

remiss if he failed to request this court to observe that

the petitioner herein has been declared deportable for the

failure to pay $100.00 for a wholesale liquor license.

II.

“Warrant for Arrest” and “Warrant-Deportation of

Alien” Which Charged Petitioner with Conspiracy to

Engage in the Wholesale Liquor Business and Which

Declared Petitioner Deportable Because This Offense

Was a Crime Involving Moral Turpitude Are Insuf-

' ficient and Defective and Therefore Invalid.

Condensing the language of the warrant, petitioner

is held to be subject to deportation under Section 19(a)

of the Immigration Act of 1917 (8 U. S. C. 155a) for the

following reasons, to-wit: that he has been sentenced

more than once to imprisonment for terms of one year or

~

12

more because of convictions since his entry into the United

States of crimes involving moral turpitude. These sen-

tencings are:

1. In 1939 for the crime of willful perjury, and

2. In 1950 for the crime of conspiracy to engage in

the wholesale liquor business without paying the

tax and also for the substantive offense of engag-

ing in the wholesale liquor business without pay-

ing the tax.

This warrant that calls for the deportation of the peti-

tioner, then, is based on the fact that he was sentenced

on two different occasions and not on the premise that he

may have been convicted more than once for the commis-

sion of crimes involving moral turpitude.

Fong Haw Tan v. Phelan, 333 U. S. 6.

Under this warrant petitioner was taken into custody

by respondent, and against this warrant petitioner directed

his application for habeas corpus (R. 1-6) on the ground

that the warrant is fatally defective in that the crime for

which he was sentenced the second time, that is in 1950,

was not a crime involving moral turpitude (petitioner in

this brief admits that the crime of wilful perjury is one

involving moral turpitude and therefore directs his ap-

peal on this point solely to the crime involved in the sec-

ond sentencing). By this warrant and this warrant alone

respondent seeks to deport petitioner and it is settled law

that deportation under this warrant can only be made for

the cause charged and stated therein. The decision of

the Immigration and Naturalization Service in issuing a

warrant of deportation is final and conclusive on the

courts, provided there is some evidence to sustain the con-

clusion made. If there is no such evidence, then the de-

cision is deemed to be arbitrary and unlawful.

Ex parte T. Nagata, 11 F. 2d 178, 180.

13

Throumoulopolou v. United States, 3 F. 2d 803.

Lewis v. Frick, 233 U. S. 291.

Zakonaite v. Wolf, 226 U. S. 272.

Kwock Jan Fat v. White, 253 U. S. 454.

Bilokumsky v. Todd, 263 U. S. 149.

In discharging the petitioner in the Nagata case, supra,

the court concluded with this language:

“Here the admitted facts do not justify the order

of deportation; hence the order is arbitrary within

the meaning of the decisions. It is ordered that peti-

tioner be discharged and his bond exonerated. This

order is without prejudice to any further proceedings

that the immigration officers may desire to institute

against the alien on a new or different charge (Italics

supplied) than that stated in the warrant of deporta-

tion herein referred to.”

In the instant case the court in passing judgment on peti-

tioner in 1950 (R. 20, 21) stated in its judgment that he

was convicted of conspiring to engage in the wholesale

liquor business and sentenced him to the maximum term

which, under the conspiracy statute could not exceed the

maximum punishment provided for the misdemeanor

which was the object of the conspiracy (R. 40). It is vital

to note that the language of the indictment was “to com-

mit an offense against and to defraud the United States,

in violating Section 3253, Title 26, U. S. C.” (R. 24) but

that the judgment of the court upon which this warrant

is based declared that petitioner had been convicted of

conspiring to commit a misdemeanor. Respondent, there-

fore, in issuing the warrant charged the petitioner pur-

suant to such judgment which, as we have seen under

Point I of this Argument, is a conviction of an offense

not involving moral turpitude. When this defect became

apparent to the Board of Immigration Appeals it is no

———

14

wonder that the Chairman in dismissing the appeal makes

the observation that

“the appropriate findings of fact and conclusion of

law should have described the second crime more fully

by designating it as a crime of conspiracy to commit

an offense against and to defraud the United States

in violation of 18 U. S. C. 371 and 26 U. S. C. 3253”

(R. 47).

It is vigorously urged by petitioner that respondent could

not charge the crime of conspiracy to defraud the United

States in the warrant because petitioner had not been

found guilty and had not been sentenced in 1950 for that

offense.

At the time application for a writ of habeas corpus

was argued in the District Court counsel for petitioner

pointed out that if this warrant were to serve as the means

of deporting petitioner it would have to be corrected at

least to show that petitioner was sentenced a second time

for a deportable offense as stated in the Negata case, supra.

Further proceedings could have been instituted by the

Immigration officers on a new or different charge than

that stated in the warrant of deportation then under con-

sideration. No amendment or change has been made in

the warrant in this case. The position of the respondent

is that of an executive officer of the government attempt-

ing to deport an alien on a charge that is not contained

in the warrant but on one which he wishes had been

in the warrant and on a charge which he desires the court

to read into such warrant. Under the cases there is no

evidence to sustain such a conclusion and therefore the

decision of respondent in ordering deportation under this

warrant is arbitrary and unlawful. The propriety of de-

portation must be determined solely from findings on

which order of deportation is based.

15

U.S. ex rel. Iorio v. Day, 34 F. 2d 920, where the Court

at page 922 used the following strong language:

“Nevertheless, when Congress has specifically

dealt with crime as a ground, and has defined what

kinds are to be considered, it seems to us that we are

not free to suppose that other crimes or the probabil-

ity of other crimes is enough.”

See also:

Takeo Tadano v. Manny, 160 F. 2d 665.

Hogan v. Hill, 12 F. Supp. 873.

McNealy v. Johnston, 100 F. 2d 280, 282.

24 C. J. S., Sec. 1585.

III.

The Court of Appeals for the Eighth Circuit

Erred in Declaring Petitioner Deportable

Because He Was a “Repeater.”

It is respectfully submitted that in holding that it was

the intent of Congress to deport “repeaters” (204 F. 2d

220, 223) the court below fell into the same error as the

District Court in considering crimes and offenses other

than those charged in the warrants. Like the District

Court, the Court of Appeals would appear to be saying

that an alien is subject to deportation if he has violated

any statutes involving moral turpitude and has been con-

victed on these charges.

That is not the law. The law punishes an alien with

deportation only when he has been sentenced more than

once, that is at different times and on different occasions,

for crimes involving moral turpitude. This is so, irrespec-

tive of how many statutes he has violated, and irrespective

of how many times he had been convicted of crimes in-

volving moral turpitude. This ruling principle finds no

16

clearer expression than in the language of the court in

Bernhardt v. United States, 169 F. 2d 983, 985, cert. den.

335 U. S. 903:

“The fear expressed by counsel that one of the

appellants might be subject to deportation if the ver-

dict of guilty on both informations is upheld, in view

of the fact that he is an alien, would appear to be

groundless in view of the decision in Fong Haw Tan v.

Phelan, 333 U. S. 6, 7, 68 S. Ct. 374. The statute Sec-

tion 19(a) of the Immigration Act of February 5, 1917,

8 U. S. C. A., Sec. 155(a), which renders a defendant

deportable if twice convicted, was there interpreted

to authorize deportation only where an alien having

committed a crime involving moral turpitude and hav-

ing been convicted and sentenced, thereafter again

commits a crime of that nature and is again convicted

and sentenced for it. It does not apply when an alien

is but once called before the bar and received judg-

ment, whether for one or several crimes” (Italics sup-

plied).

CONCLUSION.

Petitioner respectfully prays that the court issue a

writ of certiorari to review the final judgment of the

United States Court of Appeals for the Eighth Circuit af-

firming the denial of a writ of habeas corpus by the United

States District Court for the Western District of Missouri.

As stated in the petition, the Court of Appeals has

decided important questions of federal law which are in

conflict not only with decisions of this court but with vari-

ous circuit courts of appeals. It is respectfully urged that

the question of deporting an alien because of a conviction

of conspiring to commit a misdemeanor concerns a matter

17

so vital to life and liberty, and is so fraught with danger

as to legal precedent that this court should review the

judgment of the lower court and decide this question.

Respectfully submitted,

Ricuarp P. SHANAHAN,

711 Commerce Building,

Kansas City, Missouri,

JAMES DALEo,

711 Commerce Building,

Kansas City, Missouri,

Attorneys for Petitioner.

BRIEF

FOR THE

IN

IPPOSITION

Page

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CITATIONS

CASES:

Fong Haw Tan v. Phelan, 333 U.S. 6 ..........-. Sto he RRS 10

H. Matter of, 1 I. & N. Dec. 394 (1943) 2... ..ccccccccccscecs 8

Jordan v. De George, 341 U.S. 223 ........ccceecccccees 5, 7, 8, 9

Popoff, United States ex rel. v. Reimer, 79 F. 2d BAB osioacyewn 8

STATUTES :

Act of February 5, 1917, ¢. 29, § 19(a), 39 Stat. 889, as amended

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26 U.S.C. (1946 Ed.) 3253, 53 Stat. 391 .......... Vaekouvawabe ee

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Ynthe Supreme Gourt of the Winited States

OctToBEeR TERM, 1953

No. 258

Unitep States oF AMERICA, Ex REL. VINCENZO

CaRROLLO, ALSO KNown As CHARLES V. CaR-

ROLLO, Petitioner

v.

A. H. Bong, District Director, IMMIGRATION AND

NATURALIZATION SERVICE, Kansas City, Mis-

SOURI

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINION BELOW

The opinion of the Court of Appeals (R. 65-71)

is reported at 204 F. 2d 220.

JURISDICTION

The judgment of the Court of Appeals was

entered on April 28, 1953 (R. 72), and a petition

meen Bes ene er rete T Teer ee

. oe ’ .

2

for rehearing was denied on May 19, 1953 (R.

73-77). The petition for a writ of certiorari was

filed on August 13, 1953. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether petitioner’s conviction, for con-

spiracy to defraud the United States by engaging

in the wholesale liquor business and failing to pay

the special tax required, involved moral turpitude

within Section 19(a) of the Immigration Act of

1917, authorizing deportation of aliens.

2. Whether warrants for the arrest and depor-

tation of petitioner were invalid as not containing

sufficient allegations that a conviction on the con-

spiracy charge involved moral turpitude.

STATUTES INVOLVED

The Act of February 5, 1917, ¢. 29, § 19(a), 39

Stat. 889, as amended [8 U.S.C. (1946 Ed.) 155

(a)] provides:

* * * any alien who is hereafter sentenced

to imprisonment for a term of one year or

more because of conviction in this country of

a crime involving moral turpitude, com-

mitted within five years after the entry of

the alien to the United States, or who is here-

after sentenced more than once to such a term

of imprisonment because of conviction in

this country of any crime involving moral

3

turpitude, committed at any time after entry ;

* * * shall, upon the warrant of the Attorney

General, be taken into custody and deported.

26 U.S.C. [1946 Ed.] 3258, 53 Stat. 391, pro-

vides:

Any person who shall carry on the business

of a * * * wholesale liquor dealer * * * and

willfully fails to pay the special tax as re-

quired by law, shall, for every such offense, be

fined not less than $100 nor more than $5,000

and be imprisoned for not less than thirty

days nor more than two years. * * *

18 U.S.C. 371 provides:

If two or more persons conspire either to

commit any offense against the United States,

or to defraud the United States, or any

agency thereof in any manner or for any pur-

| pose, and one or more of such persons do any

act to effect the object of the conspiracy, each

shall be fined not more than $10,000 or im-

prisoned not more than five years, or both.

If, however, the offense, the commission of

which is the object of the conspiracy, is a mis-

demeanor only, the punishment for such con-

spiracy shall not exceed the maximum pun-

ishment provided for such misdemeanor.

4

STATEMENT

The petition for certiorari seeks review of a

judgment affirming the denial of petitioner’s

application for a writ of habeas corpus after a

warrant for his deportation had issued.

Petitioner, a native of Italy, entered the United

States at New Orleans, Louisiana, on January

24, 1906. He maintained continuous residence in

this country, but did not become a United States

citizen (R. 38, 39).

On October 20, 1939, in the United States Dis-

trict Court for the Western District of Missouri,

he was sentenced to imprisonment for four years

after being convicted of perjury under 18 U.S.C.

231 (R. 56-57). On the same day petitioner was

given additional sentences by the same court for

violations of 18 U.S.C. 336, covering use of the

mails for a lottery scheme, and 26 U.S.C. 145(b),

for attempting to evade income taxes (R. 57-60).

On June 26, 1950, in the same court, petitioner

pleaded guilty to a charge of conspiracy (alleging

70 overt acts) ‘‘to commit an offense against and

to defraud the United States, in violating Section

3253, Title 26 U.S.C.”’ by carrying on the business

of a wholesale liquor dealer and wilfully failing

to pay the special tax required to be paid by

wholesale liquor dealers (R. 20, 24-25). He also

pleaded guilty to a second count charging the

substantive offense of carrying on the business of

wholesale liquor dealer and wilfully failing to pay

“omen

5

the required special tax (R. 20, 36-37). He was

sentenced on July 7, 1950, to imprisonment for

two years and a $1,000 fine under count one, and

under count two, to imprisonment for two years,

to run concurrently with the sentence under count

one, and a $100 fine (R. 21).

On September 7, 1950, a warrant was issued for

petitioner’s arrest and deportation under Section

19(a) of the Immigration Act of 1917 (8 U.S.C.

155(a)) (R. 22-23). A hearing officer decided that

petitioner should be deported on the ground that

he had been sentenced more than once for crimes

involving moral turpitude, namely, perjury and

‘“eonspiracy to engage in the wholesale liquor]

business, and at the same time, wilfully failing to

pay the special tax required to be paid, and [the

substantive offense of] engaging in the wholesale

liquor business and * * * wilfully failing to pay |

the special tax required by law to be paid by

wholesale liquor dealers’ (R. 38-43). In order-

ing the denial of petitioner’s application for sus-

pension of deportation, the Assistant Commis-

sioner of the Adjudications Division adopted the

recommendation of the hearing officer, but elimi-

nated reference to the substantive offense of

engaging in the wholesale liquor business as not

being a crime involving moral turpitude (R. 48-

50). On December 7, 1951, the Board of Immi-

gration Appeals dismissed petitioner’s appeal

(R. 44-47). After ruling that under Jordan v. De

aS OSE A

tRooe ee ae ee

6

( George, 341 U. S. 223, the conspiracy conviction

involved moral turpitude, the Board’s opinion

observed ‘‘that the appropriate findings of fact

and conclusion of law should have described the

second crime more fully by designating it as a

crime of conspiracy to commit an offense against

and to defraud the United States in violation of

18 U. 8. C. 371 and 26 U. 8S. C. 3253” (R. 47).

A warrant was issued on December 21, 1951, for

petitioner’s deportation (R. 51-52). On June 12,

1952, petitioner filed a petition for habeas corpus

in the United States District Court for the West-

ern District of Missouri, claiming that the war-

rant of deportation was fatally defective. As

grounds for this claim, petitioner contended that

he had been convicted of only one crime ‘‘involv-

ing moral turpitude”’ (perjury in 1939), since his

1950 conviction—for conspiracy and the substan-

tive offense of unlawfully engaging in the whole-

sale liquor business without paying the required

tax—did not involve moral turpitude (R. 1-5). A

show cause order was issued, after which a re-

sponse was filed to the order, and a traverse to the

response (R. 6-11, 12-13).

After a hearing, the trial judge denied the

application for habeas corpus, concluding that the

warrant was valid in that each of the two offenses

it specified involved moral turpitude (R. 14, 62).

On appeal, the judgment was unanimously

affirmed (R. 15, 72).

7

ARGUMENT

|, Petitioner’s principal contention (Pet. 6-7,

Br. 5-11) -that his conviction on July 7, 1950, was

not for a crime involving moral turpitude’—is

refuted by this Court’s decision in Jordan v. De

George, 341 U.S. 223. The indictment to which

petitioner pleaded guilty in 1950 alleged that he

and other named persons had unlawfully con-

spired ‘‘to commit an offense against and to de-

fraud the United States, in violating Section

3253, Title 26 U. 8. C. by * * * carrying on the

business of a wholesale liquor dealer * * * while,

at the same time, wilfully failing to pay the

special tax required to be paid by wholesale liquor

dealers’ (R. 24-25). Petitioner was, therefore,

convicted of conspiring ‘‘to defraud the United

States’’ in the manner detailed in the indictment.

Since this Court had unequivocally held in Jordan

v. De George, supra, at 229, that the ‘‘crime of con-

spiring to defraud the United States is a ‘crime

involving moral turpitude’,’’ the court below cor-

rectly held (R. 69) that petitioner’s conviction on

the conspiracy count involved moral turpitude, so

that it, together with his conviction for perjury in

1939, authorized his deportation under 8 U. S. C.

155(a).?

1 Petitioner concedes (Br. 12) that his perjury conviction

in 1939 was for a crime involving moral turpitude.

2 Petitioner’s conviction on count 2 of the 1950 indictment,

the substantive count under 26 U. S. C. 3253, is not pertinent

8

Petitioner seeks to avoid the force of the De

George case by pointing out that 26 U. 8S. C. 3253

does not expressly use the phrase ‘‘defraud the

United States.’’ Consequently, according to peti-

tioner, he was not convicted of a crime involving a

conspiracy to defraud the United States—or, what

matters here, of ‘‘a crime involving moral turpi-

tude’’ within the meaning of 8 U. S. C..155 (a).

While it is true, as petitioner points out (Pet.

6-7), that 26 U. S. C. (1934 Ed.) 1441, involved in

De George, used the language ‘‘intent to defraud

the United States,’’ it does not follow that the fail-

ure to use such specific language in 26 U.S. C. 3253

means that there was no conspiracy to defraud the

United States in this case.’ The conspiracy to

which petitioner pleaded guilty involved a planned

and deliberate agreement to engage illegally in

the wholesale liquor business and to defraud the

here. It was eliminated from consideration as one of the two

convictions required for deportation by the Assistant Com-

missioner, the Board of Immigration Appeals, and the court

below (R. 44-50, 65-71). The holding, therefore, in Matter of

H, 11. & N. Dec. 394 (1943), that a substantive violation

under 26 U. S. C. 3253 does not involve moral turpitude is

irrelevant. Moreover, that holding is inconsistent with this

Court’s later decision in Jordan v. De George, supra.

3 Cf. United States ex rel. Popoff v. Reimer, 79 F. 2d 513

(C. A. 2), where the statute involved did not mention fraud,

but the court stated (79 F. 2d at 515) that the appellant’s

crime ‘‘necessarily involved aiding the applicant [for natu-

ralization] to commit a fraud upon the government,’’ and

held that conviction for the crime involved moral turpitude

within the purview of the deportation statute.

a

9

United States by nonpayment of liquor tax. The

close similarity between this and the conspiracy in

De George to evade the tax on distilled spirits is

immediately apparent. The plain fact is that, al-

though identical statutes covering the substantive

offenses are not involved, the element of fraud is n

less present here than it was in De George. That

decision, involving an offense which differs factu-

ally in no material respect from the one in this

case, shows conclusively the propriety of the hold-

ing below that petitioner’s crime involved ‘‘moral

turpitude.”’

2. Petitioner’s corollary contention (Pet. 8, Br.

11-14), that the warrants for his arrest and de-

portation were invalid since they denominated the

1950 conspiracy conviction a crime involving

moral turpitude when it actually was not, is in

substance a restatement of the argument we have

answered in subdivision 1, supra. Even though the

warrants did not elaborate upon all the elements

of the conspiracy charge by expressly mentioning

a defrauding of the United States, they did, in the

words of the court below, ‘‘accomplish a sufficient

identification of the case in which the sentencing

occurred and the indictment itself [charging con-

spiracy to defraud the United States and 70 overt

acts] was always in evidence’? (R. 71). Mani-

festly, petitioner was apprised with certainty of

the fact that one of the crimes involving moral

turpitude assigned as a basis for deportation was

10

the conspiracy to defraud the United States by

engaging in the wholesale liquor business and fail-

ing to pay the required tax.*

CONCLUSION

This case was decided under established legal

principles, and presents no question of sufficient

importance to warrant further review by this

Court. It is therefore respectfully submitted that

the petition for a writ of certiorari should be

denied.

Rosert L. STERN,

Acting Solicitor General.

Warren Oxney III,

Assistant Attorney General.

BEATRICE ROSENBERG,

Rosert G. Maysack,

Attorneys.

SEPTEMBER 1953.

* Petitioner, mistakenly contending (Pet. 8-9, Br. 15-16)

that the decision below conflicts with Fong Haw Tan v.

Phelan, 333 U.S. 6, urges that the court below considered

erimes and offenses other than those charged in the warrant

as a basis for deportation. Under the Fong Haw Tan decision,

if the only convictions against petitioner had been those for

perjury, mail fraud, and income tax evasion, imposed at the

same time on October 20, 1939, there would have been insuffi-

cient grounds for deportation. The record is clear, however,

that the administrative officials and the court below did not

use the mail fraud or income tax evasion conviction as a second

conviction forming the basis for deportation. Only the perjury

and conspiracy convictions, entered in 1939 and 1950, respec-

tively, were held to be the grounds for deportation.

wTU. S. GOVERNMENT PRINTING OFTICE 1953—269802/P.0. 289