A-1000352
Decided by the Board April 10, 1953
Crime involving moral turpitude — Conviction prior to entry as lewd, wanton, and lascivious person in speech and behavior — Rhode Island Public Laws 1899, c. 664 par. 7 — Effect of probation without sentence — Plea of nolo contendere.
(1) An individual arrested on a complaint alleging that he is a lewd, wanton, and lascivious person in speech and behavior who is placed on probation until discharged upon payment of costs has not been "convicted" of a crime involving moral turpitude. A plea of nolo contendere, unless followed by conviction or sentence, does not render an alien deportable on the ground that he has been convicted of a crime involving moral turpitude prior to entry.
(2) A plea of nolo contendere is not equivalent to a plea of guilty, Doughty v. De Amoreel, 22 R.I. 159, 46 A. 838 (1900) although the nature of the plea is unimportant where a conviction has been obtained, United States ex rel. Bruno v. Reimer, Commissioner of Immigration, 98 F. (2d) 92 (C.C.A. 2, 1938).
CHARGE:
Warrant: Act of 1917 — Convicted of crime prior to entry, to wit: Lewd, wanton, and lascivious person in speech and behavior.
BEFORE THE BOARD
Discussion: Respondent is a native and citizen of Portugal, 52 years of age, who last entered the United States on November 19, 1950, at El Paso, Tex. He presented a valid border crossing identification card at the time of his admission.
Respondent first entered the United States on September 14, 1918, at New Bedford, Mass. He was lawfully admitted for permanent residence. At the time he registered under the Alien Registration Act on August 27, 1940 respondent listed his only offense as an arrest for vagrancy on October 4, 1921 at Newport, R.I., for which he received a 6 months jail sentence. (The chief of police at Newport reports that it was on October 8, 1920, for being an "idle person.") Respondent stated that he had been arrested a time or two for fighting. The report of the Federal Bureau of Investigation, exhibit 8, in this record, shows no arrest or conviction except on September 13, 1942, on which this deportation proceeding is predicated.
On September 13, 1942, respondent was arrested on a complaint alleging that he: "Is a lewd, wanton, and lascivious person in speech and behavior." The respondent was arraigned that same day, September 13, 1942, and pleaded not guilty. The record shows that the case was twice assigned for trial and was continued from time to time until October 16, 1942, when respondent retracted his plea of not guilty and pleaded nolo contendere to the charge. The case was continued until June 18, 1943, at which time respondent paid $10.25 in costs and was discharged. During this time, from September 18, 1942, until June 18, 1943, respondent was in the custody of a probation officer. He has testified that he reported at regular intervals to such an officer.
The record indicates clearly that respondent was never "convicted" of the crime for which he was charged. There was no judgment or sentence. He was not taken to jail, nor did he pay a fine. The $10.25 paid by him is the sum of a number of small charges carefully set forth and itemized on the back of the "Complaint and warrant," appearing as exhibit 3 in this record. Respondent has testified that it was his lawyer, not he, who retracted his plea of not guilty and substituted therefor the plea of nolo contendere. The plea was binding on him, of course, whether it was entered by him or by his attorney. He has testified further that he was not in court at the time, that he merely went to the judge's chambers.
The charge against respondent is that he is deportable under the Immigration Act of 1917 as "a person who was convicted of a crime involving moral turpitude prior to entry into the United States." The hearing officer makes the following statement with regard to respondent's plea of nolo contendere, "This plea had the same legal effect as a plea of guilty, so far as regarded all the proceedings on the complaint and on which the defendant could be sentenced. Further, the respondent by this plea admitted for the purposes of the case all of the facts alleged in the complaint and upon which the complaint was based. The facts upon which the complaint was based are shown in exhibits 4 and 5 of the record. From the foregoing, it is shown that the respondent was convicted on his plea of guilty * * *."
So far as we have been able to discover, this is the first case before this Board where a charge of conviction has been based on a plea of nolo contendere.
The finding of the hearing officer that the plea of nolo contendere was equivalent to a plea of guilty was error. Technically, a plea of nolo contendere does not admit the allegations of the charge, but merely says that defendant does not choose to defend. United States v. Weirton Steel Co., 62 F. Supp. 961 (W.Va., 1945); Esarey v. Bahner Fertilizer Co., 69 N.E. (2d) 755, 757, Ind. App., 1946; Commonwealth v. Smith, 151 Pa. Super. 113, 30 A. (2d) 339, 346 (1943); Teslovich v. Fire F. Ins. Co., 110 Pa. Super. 245, 168 A. 354 (1933); Schad v. McNinch, 103 W. Va. 44, 136 S.E. 865 (1927); In re Smith, 365 Ill. 11, 5 N.E. (2d) 227 (1936); State v. Suick, 195 Wis. 175, 217 N.W. 743 (1928); Olszewski v. Goldberg, 223 Mass. 27, 111 N.E. 404 (1916); Fidelity-Phenix Ins. Co. of New York v. Murphy, 231 Ala. 680, 166 So. 604, 609 (1936); State v. La Rose, 71 N.H. 435, 52 A. 943 (1902); Commonwealth v. Ingersoll, 145 Mass. 381, 14 N.E. 449 (1888); Tucker v. United States, 196 Fed. 260 (C.C.A. 7, 1912); Doughty v. De Amoreel, 22 R.I. 159, 46 A. 838 (1900).
The instant case arose under a statute of the State of Rhode Island, Public Laws 1899, chapter 664 paragraph 7, which provides that when a person is found guilty of committing a minor criminal offense he may, without sentence or judgment, be placed under the supervision of a probation officer. The statute continues: "Whenever any such offender shall be placed in the custody or under the control and supervision of any such officer, such officer shall have and exercise the same rights and power in relation to such offender as are or may be possessed by a surety on a recognizance."
The Supreme Court of Rhode Island discussed this statute in Doughty v. De Amoreel, 22 R.I. 159, 46 A. 838 (1900). In that case the action was brought under another Rhode Island statute which permitted recovery of the double value of goods stolen "whenever any person shall be convicted of larceny." In that case the defendant had pleaded nolo contendere to an indictment for larceny, and was placed under the control and supervision of a probation officer. The question was whether or not these facts amounted to a conviction. The district court had held that the defendant had been convicted and gave a decision for the plaintiff for the double value of the goods stolen. The Supreme Court reversed the district court, declaring:
In the strictest sense, a conviction is not complete until it has become a judgment of the court by a sentence, since, before that time, a verdict may be set aside or a new trial granted for various causes * * *. But while a plea of nolo contendere may be followed by a sentence, it does not establish the fact of guilt for any other purposes than that of the case to which it applies. Doubtless, it is often used as a substitute for a plea of guilty, but it simply says that the defendant will not contend. This is not a confession of guilt * * *. It was therefore held in State v. Conway 20 R.I. 270, 38 A. 656 that a plea of nolo contendere was not a conviction, and could not be used for the purpose of discrediting a witness * * *.
* * * The main purpose of the statute is the reformation of juvenile offenders. A sentence is therefore carefully avoided, and the accused person is not imprisoned, but is allowed to go upon his future good behavior. The language of the act is that the action of the court is provisional and "before sentence."
This statement of the Supreme Court of Rhode Island interpreting the Rhode Island statute leaves no room for doubt. The placing of respondent on probation did not amount to a conviction.
Unquestionably, if there had been a conviction it would be unimportant that the conviction had been obtained on a plea of nolo contendere. Where the charge is "convicted of a crime prior to entry" the judgment of conviction is the important thing, whether it was obtained on a plea of nolo contendere, a plea of guilty, or a plea of not guilty. But it takes the judgment of the court on a plea or verdict to constitute a conviction. Tucker v. United States, 196 Fed. 260 (C.C.A. 7, 1912); Crawford v. United States, 41 F (2d) 979 (C.C.A., D.C. 1930); In re Ringnalda, 48 F. Supp. 975 (D.C., Calif. 1943); Meyer v. Missouri Real Estate Commission, 238 Mo. A. 476, 183 S.W. (2d) 342 (1944); Berman v. United States, 302 U.S. 211 (1937); People v. Fabian, 192 N.Y. 443, 85 N.E. 672, 675.
The court recognized that the nature of the plea itself is unimportant in United States ex rel. Bruno v. Reimer, Commissioner of Immigration, 98 F. (2d) 92 (C.C.A. 2, 1938). The ground of deportation was that the alien had been twice sentenced to imprisonment for a term of 1 year or more because of conviction for crimes involving moral turpitude. The only ground relied upon by the alien in support of his writ of habeas corpus was that the first sentence, not being upon a plea of guilty but upon a plea of nolo contendere, was not a sentence and conviction within the deportation statute. Following that plea he was sentenced to an indeterminate term, and served 18 months in two State reformatories. Shortly after his release he was again indicted for robbery, pleaded guilty, and was sentenced to a term of 9 years. The relator objected that his plea did not admit the truth of the facts charged in the indictment except for purposes of the prosecution, and that therefore it ought not to serve in a deportation proceeding which has no connection with the prosecution. The court stated that the relator might succeed if the charge was admission of the commission of a crime, as it may in the case of crimes committed before entry.
The circuit court of appeals declared that while the plea of nolo contendere is not treated as a confession which can be used against the accused elsewhere, it gives the judge as complete power to sentence as a plea of guilty. The court said:
Since it (deportation) depends upon conviction and sentence, conviction and sentence are the only relevant facts, and the accused may be deported whenever these have been procured by any lawful procedure, as in this case they were.
In the instant case the plea was not followed by conviction and sentence, and the alien is, therefore, not deportable on the ground that he has been convicted of a crime involving moral turpitude prior to entry.
Order: It is ordered that the proceedings be terminated.