MATTER or Z 

In DEPORTATION Proceedings 

A-4420140 

Decided by Board October SS, 1858 

Crime Involving moral turpitude—Section 241(a)(4) of the 1952 act—'-Single 

scheme" not established where crimes violating identical statute were separate episodes in continuing criminal plan. 

Slngleschejne of criminal misconduct within meaning of section 243(a) (4) of 

the 1052 act is'not established where respondent has been convicted on two 

counts of an indictment for defrauding the Government of tax on two separate occasions with respect to separate Quantities of alcohol in violation of 

29 U.S.OT S821. Convictions which are the result of separate episodes are 

not part of "single scheme" oven though the episodes occur pursuant to a 

continuing criminal plan or conspiracy. (See note at. end of decision.) 

CHARGE: 

Order; Act of 1952—Section 241(a)(4) [8 L'.S.C- 1251(a) (4)]—Convicted 

of two Crimea involving moral turpitude: Intent to defraud the 

United States erf tax (two offenses). 

. BEFORE THE BOARD 

Discussion: This is an appeal from the order of the sj3eci.il inquiry officer finding the respondent deportable on the- ground stated 

above and denying his application for discretion/try relief. The 

appeal -will be dismissed. 

^Respondent, a 56-year-old roamed male, a native and citizen of 

Italy, last entered the United States in 192S. His deportation is 

sought on the ground that after entry he has been convicted of 2 

crimes involving moral turpitude "not arising out of a single scheme 

of criminal misconduct." The issue is whether the crimes for which 

he has been convicted arose out of a single scheme of criminal 

misconduct.1 On March -25, 1941» respondent was convicted, upon 

a plea, of guilty, on 11 counts of an indictment charging violation 

of several provisions of the Internal Revenue laws, and on one 

count charging conspiracy to violate provisions- of the' Internal 

1

 Section 241(a)(4) [8 TJ.S.O. 1251(a) (4)] provides in pertinent part: "Any 

tfllen in the United States * * * shall, upon the order of the Attorney General, 

be deported who • * * at any time after entry la convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether tte 

convictions,were Ui a single trial* 

1T0 
Revenue laws. H e was sentenced to imprisonment for a term of 8 

years and fined $13,000. The Services relies upon the convictions 

based on counts 6 and 11. Count 6 charges that respondent and 

others removed 200 gallons of alcohol with intent to defraud the 

Government of ta s on September 18, 1940, in the County of Sangamon in violation of 26 U.S.C. 3321,1940 ed. Count 11 charges that 

on September 9, 1940, the respondent and others committed the 

same act in the same county with the same intent in violation of 

the same law in connection with 50 gallons of alcohol. Count 12, 

the conspiracy count of the indictment, charged that- from April 

1938 to the date of the presentment (September 1041) respondent 

combined with others to commit the offenses described in the other 

11 counts of the indictment and conspired to commit other like 

offenses the number of which was unknown. All the allegations 

concerning the other counts of the indictment were incorporated by 

reference into the conspiracy count. 

The special inquiry officer found that although the respondent 

had entered into a general conspiracy with others to commit the 

offenses charged in counts 6 and 11, the offense in -each of those 

counts was a complete, individual, and distinct crime and was not a 

part of a single scheme of criminal misconduct. Counsel contends 

tha t the offenses in counts 6 and 11 were committed in pursuance of 

the conspiracy .and, therefore, are part of a single scheme of criminal misconduct.. The cose most pertinent of those upon which he 

relies is Jeronimo v. Murff, 157 P. Supp. 808 (S.D. N.T., 1957). 

The special inquiry officer dismissed Jeronimo from consideration 

on the ground that it was decided by a district court in a circuit 

other than that which would have jurisdiction of the respondent's 

case. The Service representative reinforced the position of the special inquiry officer but also attempted to distinguish and explain 

Jeronimo? Without implying that there is only one answer to the 

'The Service representative argues that Jeronimo does not stand for the 

proposition that unlawful acts performed during the existence of a conspiracy 

are necessarily committed as part of a single scheme. He believes that in 

Jeronimo, the existence of a single scheme was found, not because a conspiracy 

existed but because the court found that all of Jeronimo's acts were directed 

to a single end. In the instant case, he points out, the Indictment reveals 

that respondent conspired to commit "divers" offenses. He stated that this 

indicates that the grand Jury "apparently considered that the respondent and 

others had conspired to commit several crimes which would differ in character and quality, and not of the same kind." The Service representative also 

points out that the conviction on the conspiracy could have benn brought 

about by proof of the agreement and the existence of any one of the 20 overt 

steps set out (All but one of the overt acts refer to a date other than 

September 18 or September 9, 1940, when the acts mentioned in conjita 6 sod 

11 were committed. The relation of the overt acts of September 18 and September &, if any, to the acts set forth In counts 6 and 11 is not known.) The 

Service representative also relies upon the "very peculiar nod very ..unusual 

facts" of Jeronimo. 

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question, and whether or not the instant case can be distinguished 

from JerommO) we prefer to base our decision primarily on the 

belief that Jeronimo does not set forth the proper rule. 

Jeronimo had been ordered deported on the ground that he was a 

twice-convicted alien. The Court found this to be error. Jeronimo 

plotted with others to defraud the City of New York by submitting 

fraudulent claims for payments in connection with painting done 

for the City of New York on contracts which appear to have been 

awarded to him from time to time. He was indicted under an 

eight-count indictment charging bribery, grand larceny, and conspiracy. He was convicted on the conspiracy count, 4 larceny counts 

and a bribery count. Each of the larceny counts concerned separate contracts and different properties. All of the contracts were 

with the City of New York. The Service relied upon the 4 larceny 

convictions for the deportation proceedings. The conspiracy count 

charged the existence of a conspiracy from about March 1947 continuously to about January 1949. Nine overt acts in furtherance of 

the' conspiracy were set forth in the count. The remaining counts 

charged grand larceny or bribery. One or more of the overt acts 

set forth in the conspiracy count formed the bases for the other 

"counts. One larceny count covered the period from April 1947 to 

October 1£*-S, It involved an aggregate amount of over $39,000; 

it is based on two of. the overt acts described in the conspiracy 

count. One larceny count covered the period from January 1948 

to September 1948. It involved an aggregate amount of over 

$43,000; it is based upon two of the overt, acts described in the 

conspiracy count. One larceny count covered the period from about 

June 1948 to about December 1948.. It involved an aggregate 

amount of over $52,00ft; it is based on three overt acts described 

in the conspiracy count. One larceny count covered the period 

from October 1948 to January 1949. It involved an aggregate 

amount of over $50,000; it is based on two of the overt acts described in the conspiracy count. The concluding paragraph of the 

indictment stated that "All of the acts and transactions alleged in 

each of the several counts in this indictment are connected together 

and constitute parts of a common scheme and plan." 

In Jeronimo the Government argued that separate crimes do not 

arise out of a single scheme of criminal misconduct unless the crimes 

were committed pursuant to a single sustained criminal impulse and 

that since Jeronimo's larcenies were the result of separate independent impulses, his crimes did not arise out of a single scheme 

of criminal misconduct. The Court rules that the existence of the 

same criminal impulse was not an indispensible prerequisite to proof 

of a single scheme. In finding the existence of a single scheme in 

JeronimOj the Court stated: 

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The evidence In the record conclusively establishes that the four larcenies 

upon which the proposed deportation Is based arose out of a single continuing 

criminal enterprise, (p. 813) 

* * * The initial formulation of the same subsisting fundamental object and 

purpose; the utilization of precisely the same methods and procedures la each 

of a series of successive situations to accomplish the original objective; the. 

continuously interacting relationship and activities of the same persons who 

originated and launched the project; the victimizing of the same person through 

all the acts—such evidentiary facts may, in the aggregate, demonstrate the 

existence of a single criminal enterprise, project and undertaking. Such Is the 

case at bar. (p. 815) 

Jeronimo appears to prevent the use of convictions arising out of 

"a single continuing criminal enterprise," without regard to the 

time which has elapsed between the criminal acts. In view of the 

broad coverage which Congress desired to give the provisions for 

the deportation of the criminal classes and in view of the illogical 

situation which results from the interpretation, we do not believe 

Jeronimo can be followed. 

Congress intended to make the law relating to the deportation of 

the criminal aliens broad. The grounds for the deportation of the 

criminal were made retroactive in effect and were applicable to the 

criminal alien despite the facts that he had'previously been in the 

United States legally and his acts occurred prior to the enactment 

of the Immigration and Nationality Act.8 The fact that the alien 

had been made deportable did not mean that he must of necessity be deported for provision was made for the suspension of his 

deportation in the discretion of the administrative authorities and 

Congress. Obviously, it was the intent of Congress to bring under 

review the desirability of continued, residence in the United States 

of persons who had been convicted of crimes involving moral turpitude. The law should not be interpreted in such a manner as to 

remove a substantial segment of criminal aliens from such review. 

Jeronimo would remove from liability to deportation the alien 

who, by carrying on his crimes over a period of years, revealed that 

he was confirmed in his criminality. This interpretation can hardly 

be in accord with the intent of Congress to make deportable aliens 

who were convicted twice whether or not they were confirmed 

s '<* • •i the instant bill [H.R 5878] makes the following basic and significant changes: • * * 5. Broadens the grounds for exclusion and deportation 

of criminal aliens * • "." (H.R. 1365, February 14, 1952, 82d Cong., 2d sesa., 

U.S. Code Congressional and Administrative News, Vol. 3,1952, p. 1679); "This 

class of deportable aliens [aliens In section 241(a)(4)] has been modified to 

facilitate the deportation of undesirable criminal aliens. Thus, aa alien who 

at any time after entry is convicted of two crimes involving moral turpitude 

is deportable, regardless of whether confined therefor, whereas under existing 

law the alien must have been sentenced to a term of a year or more because 

of such convictions * * •" (S.R. 1187, 82d Cong., 3d sess., p. 21; see paragraph 

entitled "Stricter Construction," p. 61, 8 U.S.O.A,; Lvlimmn v. United State* 

ea ret. Oargon, 853 U.S. 085). 

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criminals. A brief bit. of history will be helpful at this time. The 

law previous to the section in question was interpreted as requiring 

the deportation of the twice-convicted alien who after entry had 

shown himself to be a criminal of a "confirmed" type.* Since the 

"repeater" is the plainest confirmed type, the Supreme Court held 

that Congress intended to deport the twice-convicted alien only if 

the alien after conviction and incarceration once again committed 

a crime involving moral turpitude and was again convicted and 

incarcerated.0 The changes brought about by the Act of 1962 show 

that Congress wished to make liable to deportation not only the 

confirmed criminal but also any alien who committed two crimes 

after entry, so long as the crimes did not arise out of a single 

scheme of criminal misconduct. Thus, Congress eliminated the requirement that the. twice-convicted alien had to be sentenced to 

imprisonment for a year or more; it eliminated the requirement 

that the alien had to be confined; and it eliminated the requirement 

that the second conviction had to follow a confinement. As we 

have previously mentioned, it made the law retroactive. In view 

of this attempt to subject the twice-convicted alien to deportation 

whether or not he was a confirmed criminal, it would appear contrary to the intent of Congress to so interpret the law as to permit 

the one whose violation of law may extend over a long period of 

time and who may have engaged in a series of criminal acts, to 

escape from liability to deportation merely because he had dedicated 

himself in advance to a course of certain criminal conduct with 

others against the same victim. Especially difficult is it to accept 

this exemption when it is considered that a conspiracy is an offense 

of the "gravest character, sometimes quite outweighing in injury 

to the public, the mere commission of the contemplated crime."* 

If Jeronimo had *iot been charged with conspiracy, but merely 

with the substantive crimes, would he have been deportable as a 

twice-convicted alien! We have' set forth the test announced by the 

Court concerning the manner in which evidentiary facta may establish the existence of a single scheme. Under this test, it is possible to argue very convincingly that' the Court would have been 

•hie to reach the same result it did. Jeronimo will make most 

difficult the application of the immigration laws to the twice-convicted alien who has committed similar offenses against the same 

victim. 

Let us consider the incongruous situation which arises if the 

section is interpreted to exclude from liability to deportation the 

alien who committed his crimes in the course of a conspiracy or as 

'Section 19(a), Act ot February 5, 1&17 (89 Stat 874). 

o Fong Bow Tan v. PhtXan, 888 U.S. 6. 

* United States v. RaUnowich, 288 U.S. 78; Untied States v. Lancaster, 44 

Fed. 896 (O.O. 6a., 1801). 

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a result of an intent to victimize the same individual Alien 1, a 

young man falling in with evil companions, robs B and five minutes later robs C. He is apprehended and convicted of both robberies. He never again becomes involved with the law. Alien 2, 

alone or in conspiracy with others, carries on a scheme to defraud 

or rob the same victim over a period of many years. Many criminal acts are committed. Alien 1 is subject to. deportation. Under 

Jeronvma, alien 2, a confirmed criminal, is free from liability to 

deportation. Congress could not have intended such an illogical 

result. 

It is true that where language in a deportation statute is susceptible to more than one interpretation, that most favorable to the 

alien should be taken. However, such a rule should not apply 

where the favorable rule prevents a reasonable interpretation of the 

statute in the light of the general scheme, while the strict, view 

permits the general scheme to be effectuated. The statute should be 

interpreted to include the greatest number of twice-convicted aliens. 

This can be done, and the clause in question can at the same time 

be given effect by exempting the twice-convicted criminal whose 

acts are essentially one act. We believe that this test has been the 

basis of administrative and judicial rulings holding that a single 

scheme existed. Thus, the following have been held to be single 

schemes: Convictions based upon the same act (counterfeiting and 

possession of counterfeit money); convictions based upon an aggregate of acts occurring at the same time (convictions for indecent 

fondling of two minors in the same room at the same time); convictions based upon closely connected acts performed at about the 

same time to bring to fruition some immediate criminal purpose, 

(breaking and entry of a bank and assault upon a bank watchman). 

We do not think it unreasonable to limit the exemption from 

deportation to the categories we have stated (and such other related 

ones as the future may develop) in view of the desire of Congress 

to extend its control over the criminal alien. This interpretation 

is logical to the extent that it makes the intrinsic nature of the 

criminal conduct the test rather than the manner in which an indictment may be drawn up or the fact that the alien confined his 

acts to one victim pursuant to a preconceived plan. 

It seems to us that certainty and consistency require that interpretations of the phrase "single scheme" be based upon some common ground. There is a common ground in decisions which find a 

single scheme in acts which constitute but one criminal episode. The. 

cases except for Jeronimo have refused to find the existence of a 

"single scheme" unless one act was involved, or those which were 

done were so related in time and purpose as in reality to constitute 

but one separate episode. The fact that different victims wore in175 
volved or that the episode .was but part of a continuing plan which 

resulted in the birth of other episodes was not considered material. 

There is no common ground between these cases and one which considers as part of a single scheme the many episodes which are the 

result of a continuing agreement to engage in many episodes. This, 

we think, weakens the cogency of the decision in Jeronimo, for there 

should be a pattern; if Jeronimo does not fit into the pattern which 

it is agreed must result in a single scheme, then Jeronimo does not 

state a correct rule of law.' 

We conclude that this record establishes the existence of two independent criminal acts so separated by time that they constitute 

individual episodes and so do not constitute a single scheme of. 

criminal misconduct. Deportability is established. 

The respondent has applied for preexamination or suspension of 

deportation under section 244(a) of the Immigration and Nationality 

Act (8 U.S.C. 1254(a)). Respondent's age, his length of residence 

in the United States, the fact that his wife is a native-bom United 

States citizen whom he married in 1935, and the presence of siblings in the United States, make it proper to find that his deportation would result in hardship required to qualify for suspension 

of deportation. However, we believe that his applications should 

be denied. This is for the reasons given by the special inquiry 

officer and because the record creates a substantial doubt as to 

whether the respondent has been candid with the Government concerning his financial ability to pay his indebtedness to the Government, and his participation in gambling activities; and because 

this very lack of candor prevents him from hearing his burden of 

establishing that he merits discretionary relief. The full facts concerning discretionary relief have been set forth by the special inquiry officer and it is unnecessary to repeat them. In reaching our 

conclusion we have carefully considered the entire record, including 

the brief submitted on appeal, the affidavits of record and the oral 

argument of counsel, including his statement that respondent's 

difficulty arises out of his inability to express himself. No change 

should be made in the order of the special inquiry officer. 

Order: It is ordered that the appeal be and the same is hereby 

dismissed. 

Editor's Note: Motion for summary Judgment was filed with the United 

States District Court for the Northern District of Illinois, by the subject alien 

on January 22, 1959. In a memorandum decision rendered by the Court on 

March 81,1999, in the subject action, Zito v. Uov&al, 174 F. Supp, 581, motion 

for summary judgment was granted and the outstanding order of deportation 

In the case waa declared null and void -as not deemed to he based on sufficient 

evidence. 

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