56032/564
Decided by Board February 16, 1944.
Crime committed within five years after entry — Conspiracy to defraud the United States (18 U.S.C. 88) — Sentenced to one year or more.
An alien entered the United States in 1938 and was convicted thereafter of conspiracy to defraud the United States, the indictment charging such conspiracy to have been in operation continuously from about January 1, 1934, to February 20, 1942. While the first overt act alleged in furtherance of such conspiracy occurred in April 1936, this alien's alleged first overt act was in 1939. The offense of conspiracy is a continuing one, and the crime is committed as long as there are overt acts done in furtherance of the conspiracy. The crime of which this alien was convicted was held to have been committed within 5 years after entry.
CHARGES:
Warrant: Act of 1924 — Remained longer-visitor.
Lodged: Act of 1917 — Sentenced to a year or more for crime committed within 5 years after entry, to wit: Conspiracy to defraud the United States in violation of section 88, title 18, U.S.C.
BEFORE THE BOARD
Discussion: After a hearing, the Presiding Inspector found the respondent deportable on the warrant and lodged charges and recommended his deportation. The Central Office of the Immigration and Naturalization Service concurs in this recommendation.
The respondent is a 40-year-old native and citizen of Italy who last entered the United States at the port of New York on March 31, 1938, and was then admitted as a visitor for a period of 4 months. He has never received any extension of his stay in this country. Having remained here longer than 4 months, he is now deportable on the warrant charge.
On February 4, 1943, the respondent was sentenced to imprisonment in an institution to be designated by the Attorney General for a period of 15 months because of his conviction, on his plea of guilty, to an indictment charging him with conspiracy to defraud the United States Government in violation of section 88, title 18, U.S.C. The indictment charged that the conspiracy had been in operation continuously from on or about January 1, 1934, up to and including the time the indictment was filed on February 20, 1942. The respondent is now serving his sentence in the Federal Correctional Institution, Danbury, Conn.
A preliminary question of jurisdiction will be first disposed of. When the warrant of arrest was issued on May 30, 1940, and served on June 9, 1941, the respondent was not deportable on the lodged charge, since he was not sentenced until February 1943. The warrant charge, however, was then valid. At the time the additional charge was lodged in May 1943, the respondent was legally in the custody of the Immigration and Naturalization Service. A valid basis then existed for the lodging of this charge. The respondent was then given adequate notice as to the new ground of deportation and the requirements of a fair hearing were thereafter observed. See United States ex rel Boric v. Marshall, 4 F. Supp. 965.
The statute which the respondent was charged with violating and of which he was convicted, section 88, title 18, U.S.C., reads:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both.
This offense is consummated when the agreement is made and one overt act is committed by one of the conspirators for the purpose of effecting the object of the conspiracy. United States v. Falcone, 311 U.S. 205. The indictment charges that the defendants, including the respondent, conspired together from January 1, 1934, up to and including the time when the indictment was filed on February 20, 1942. The first overt act set forth in the indictment is alleged to have been committed in April 1936. The respondent was convicted on his plea of guilty and the averments in the indictment must be accepted in these proceedings as revealing the accurate facts. The crime of which the respondent was convicted was thus initially committed in April 1936. He, however, did not enter the United States until March 1938. The lodged charge cannot be sustained unless the crime was committed within 5 years after entry.
The first overt act alleged to have been committed by the respondent in furtherance of the conspiracy occurred in February 1939. Though the respondent joined the conspiracy and participated therein after its initial formation, he is, nevertheless, equally guilty and liable with the originators. United States v. Wilson, 23 F. (2d) 112. Each participator in the conspiracy is the agent of the other. When the respondent joined the conspiracy, he thereby ratified the prior acts of his coconspirators. See 12 C.J. 578, 579. Thus from a strictly legal point of view it appears that the respondent was guilty of the conspiracy charge when it was first committed in 1936.
From the foregoing it seems clear that the offense of which the respondent was convicted was committed long before his arrival in the United States. But it must be remembered that conspiracy is a continuing crime. "[It] is a partnership in criminal purposes. That as such it may have continuation in time is shown by the rule that an overt act of one partner may be the act of all without any new agreement specifically directed to that end." United States v. Kissel, 218 U.S. 601, 607. Just as long as there are overt acts committed in furtherance of the conspiracy, the offense denounced by section 88, title 18, U.S.C., is being committed. See United States v. Perlstein, 126 F. (2d) 789; United States v. Wilson, supra; Nyquist v. United States, 2 F. (2d) 504. We conclude that the crime of which the respondent was convicted was committed within 5 years after his entry.
Section 88, title 18, U.S.C., deals with conspiracy to defraud the United States and with conspiracy to commit any offense against the United States. The respondent was here convicted of conspiracy to defraud and more specifically to defraud the Government of taxes payable upon distilled spirits. Crimes involving fraud are ordinarily considered as involving moral turpitude. Ponzi v. Ward, 7 F. Supp. 736. And in particular the crime now at issue has been specifically held to involve such conduct. United States ex rel. Berlandi v. Reimer, 113 F. (2d) 429. The respondent is deportable on the lodged charge.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Italy;
(2) That the respondent last entered the United States at the port of New York on March 31, 1938, and was then admitted for a period of 4 months;
(3) That the respondent has remained in the United States for a longer period than 4 months;
(4) That the respondent on February 4, 1943, was sentenced to imprisonment in the Federal Correctional Institution at Danbury, Conn., for a term of 15 months because of his conviction of the crime of conspiracy to defraud the United States in violation of section 88, title 18, U.S.C., the said crime having been committed within 5 years after entry.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 14 and 15 of the Immigration Act of 1924 the respondent is subject to deportation on the ground that he has remained in the United States for a longer time than permitted under said act or regulations made thereunder;
(2) That under section 19 of the act of February 5, 1917, the respondent is subject to deportation on the ground that subsequent to May 1, 1917, he has been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within 5 years after entry, to wit: Conspiracy to defraud the United States in violation of section 88, title 18, U.S.C.;
(3) That under section 20 of the act of February 5, 1917, the respondent is deportable to Italy at Government expense.Other Factors: All of the respondent's close family ties are in Italy. There is nobody in this country who is in any way dependent upon him. Apparently at the termination of the respondent's present term of imprisonment, he will have to face a charge of third degree burglary.
Order: It is ordered that the alien be deported to Italy at Government expense, on the charge contained in the warrant of arrest and on the following further charge:
That he is in the United States in violation of the act of February 5, 1917, in that on or after May 1, 1917, he has been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within 5 years after entry, to wit: Conspiracy to defraud the United States in violation of section 88, title 18, U.S.C.It is further ordered, That execution of warrant be deferred until alien is released from imprisonment.