MArrEn OF S— 

In DEPORTATION Proceedings 

A-8089783 

Decided by Board April 19, 1962 

Recommendation against deportation—Section 241(b), 1952 act—Not effective 

following resentencing for sole purpose of making recommendation —Deportation—Section 241(a)(4)—Single scheme. 

(1) A new Jersey court vacated two 1960 convictions; in lieu thereof accepted a plea of non vuit to one; and, in an order dated March 30, 1961, 

zentencing respondent to an iraleLetathiale term, recommended against deportation. Since sole stated purpose of court's action was to correct failure 

to make timely recommendation against deportation, such recommendation 

is ineffective under section 241(b) of 1952 Act. 

(2) Convictions for illegal possession of one person's automobile and for stealing the automobile of another person on different dates permit the normal 

Inference that different crimes committed at different times against different persons are not part of a single scheme of criminal misconduct. In the 

absence of evidence to the contrary and in light of respondent's refusal to 

testify such convictions establish deportability under section 241(a) (4) of 

the 1952 Act. 

CHARGES: 

Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)]—ConvIcted 

of two crimes after entry, to wit: grand larceny and grand 

larceny. 

Lodged: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)7—Convicted 

of two crimes after entry, to wit: grand larceny and grand larceny; robbery while armed and possession of (stolen) motor 

vehicle. 

Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—Convicted 

of two crimes after entry, to wit: grand larceny and grand larceny; robbery while armed and possession of (stolen) motor 

vehicle, and robbery. 

BEFORE THE BOARD 

DISCUSSION: The case comes forward on appeal by the examining officer from the decision of the special inquiry officer dated 

November 13, 1961, ordering the proceedings terminated. 

The record relates to a native and citizen of Poland, 21 years old, 

male, single, who last entered the United States on August 24, 1951, 

ex USNS Gen. 1?. M. Macleh ford and was admitted as an eligible die613 
placed person under section 2(c) of the Displaced Persons Act. The 

original order to show cause was served on the respondent on August 

11, 1960, and charged him with being subject to deportation under 

section 241(a) (4) of the Immigration and Nationality Act in that 

after entry he had been convicted in the County Court of Hudson 

County of two crimes involving moral turpitude not arising out of a 

single scheme of criminal misconduct, to wit, grand larceny on October 17, 1958 (Indictment 31-58), and grand larceny on April 14, 

1960 (Indictment 28-59). The crimes were committed in July of 

1958 and February 1959 and involved motor vehicles which were the 

property of different persons. On October 13, 1960, the special inquiry officer ordered the respondent deported on the charge stated in 

the order to show cause. On December 20, 1060, the special inquiry 

officer granted a motion to reopen, the motion containing a copy of 

an order entered by a judge of the Hudson County Court, Law Division, vacating and setting aside the plea, sentence, and thus, the 

conviction of one of the two offenses which formed the basis of the 

deportation proceeding. 

At the reopened hearing the five convictions, all in the Hudson 

County Court, Jersey City, New Jersey, which were used to support 

the deportation charges had developed into the following postures: 

(1) Indictment No. 31-58 charged the respondent with grand 

larceny in violation of N_J_S_A. 2A_ :119 -2, committed July 18, 1958, 

in Bayonne, New Jersey, involving the theft of a motor vehicle of 

"VV—H—. The respondent was convicted upon his plea of non vult 

and on October 17, 1958, was sentenced to an indeterminate term at 

the New Jersey State Reformatory, sentence suspended and respondent placed on probation for a period of 3 years. 

(2) Indictment No. 30-58, charged the respondent with possession 

of a stolen motor vehicle in violation of N.J.S.A. 2A:139 -3, committed on July 17, 1958, involving the possession of the motor vehicle 

of R—S , knowing the said motor vehicle to have been stolen. The 

respondent was convicted upon his plea of non volt and on October 

17, 1958,- was sentenced to an indeterminate term at the New Jersey 

State Reformatory, to run concurrently with the sentence imposed 

upon Indictment No. 31-58, supra, sentence suspended and respondent 

placed on probation for a period of 3 years. 

(3) Indictment No. 27-59 charged the respondent with robbery 

while armed in violation of N.J.S.A. 2A :141-1, 2A:151-5, and 

2A ;90-2, committed. February 13, 1050, involving the robbery, while, 

armed, from C—G— of S500 in cash. The respondent was convicted on February 29, 1960, upon his plea of non vult solely of that 

portion of the charge which related to robbery, the "while armed" 

portion of the charge being dismissed, and was sentenced to the New 

Jersey State Reformatory for an indeterminate term not to exceed 

014 
5 years. On November 2, 1960, the sentencing judge vacated and 

set aside the respondent's plea of non vult and the sentence which 

had been imposed, reinstated the charge of robbery in violation of 

N.J.S.A. 2A :141-1 and di]., en1. the entrance of a plea of not guilty 

to the charge. On Man -h 19G1, the judge directed the dismissal 

of the indictment„ 

(4) Accusation No. 85-60 charged the respondent with robbery in 

violation of N.J.S.A. 2A:141-1. committed February 13, 1059, in 

Jersey City, New Jersey, involving the robbery from C G— of the 

sum of $500. On February 20, 1961, respondent entered a plea of 

non unit to the accusation, having waived indictment and trial, and 

on March 30, 1961, was sentenced to an indeterminate term to the 

New Jersey State. Reformatory not to exceed 5 years, respondent to 

given credit for time already spent at the New Jersey State, Reformatory under Indictments No. 27-59 (eupow) and No. 28-59 

(infra) and the time which he had already spent in the Hudson 

County Jail. A motion made by respondent's counsel that, the court 

recommend against deportation by reason of this conviction was 

opposed by a representative of the United States Attorney's office 

but was granted by the court. (Proceedings pursuant to Indictment 

No. 27-59 and Accusation No. 85-00 have been set out in direct succession in order to demonstrate the same crime against the same 

person was involved in both convictions.) 

(5) Indictment No. 28-59 charged respondent with grand larceny 

of a motor vehicle in violation of N.J.S.A. 2A :119-2, committed on 

February 13, 1959, in Jersey City, New Jersey, involving the - theft of 

a motor vehicle of J—A--. The respondent was convicted upon his 

plea of non vult on April 14, 1960, was sentenced to the New Jersey 

State Reformatory for an indeterminate term not to exceed 3 years, 

to run concurrently with the sentence imposed on Indictment No. 

27-59, ,vapra. On November 2, 1900, the sentencing judge vacated 

and set aside the respondent's plea of non vult and the sentence which 

had been imposed, reinstated the charge of theft, of a motor vehicle 

in violation of N.J.S.A. 2A:110-2, directed the entrance of a plea 

of not guilty to the charge and on March 30, 1961, the some judge 

directed the dismissal of the indictment. 

The County Courts order of November 2, 1960, vacating the convictions under Indictments No. '27-5.9 and No. 28-59 was made pursuant to the authority contained in N.J.R.R. 3:7-10(a) which provides: 

A motion to withdraw a plea of guilty or of not conterdere or of non volt, 

may he made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice, the Court, after sentence, may set 

aside the judgment of conviction and permit the defendant to withdraw his 

plea. 

615 
The examining officer in his brief has cited a number of New 

Jersey court cases in which the "manifest injustice" mentioned in 

N.J.R.R. 3:7-10(a) involved instances in which the defendant was 

denied due process in the State court, such as appearance or entering 

a plea without representation by counsel, lack of ability to comprehend the nature of the charges in the proceeding, and otherwise 

involving a violation of the defendant's constitutional rights. However, since such a motion is addressed to the discretion or conscious; 

of the court, it cannot be said that the court lacked jurisdiction 

to grant the motion to vacate as pointed out by the special inquiry 

officer. 1The difficulty arises not with the jurisdiction of the State 

court to grant the motion to vacate but the attempt of the State 

court to invade an area to which Congress has seen fit. to erect or 

impose a federal standard in regard to recommendations against 

deportation as provided in section 241(b) of the Immigration and 

Nationality Act. We find that in intruding into this federal area, 

the court's action was ineffective for reasons which we will now 

develop. 

Accusation No. 85-60 arose out of the same facts which constituted 

the basis for Indictment No. 27-59; i.e., the robbery of $500 cash 

from C—G— committed February 13, 1950, in the City of Jersey 

City, New Jersey. Indictment No. 27-59 had resulted in the respondent's conviction on his plea of non 'twit on February 29. 1960, to the 

indictment which related to robbery, the "while armed" charge being 

dismissed. Subsequently, on November 2, 1960, the sentencing judge 

vacated and set aside respondent's plea of non vult and the sentence 

which lied been imposed, reinstated the charge of robbery in violation 

of N.J.S.A. 2A:141-1, directed the entrance of a plea of not guilty 

to the charge and on March 30, 1961, directed the dismissal of this 

indictment. Accusation No. 85 -60 revived the charge which consisted of the same factual allegations, minus the "while armed" 

charge, to which respondent entered a plea of non 'vull on February 

20, 1961, and on March 30, 1961, was given the same sentence of an 

indeterminate. term at the New Jersey State Reformatory not to exceed 5 years to which he had previously been sentenced under Indictment No. 57-59; and the court, upon motion by counsel after due 

notice to the United States Attorney's office, granted the motion and 

recommended against deportation. 

It is difficult to perceive how Accusation No. 85-60 can be divorced 

from No. 27-59, both alleging the same overt act and the same violation of law and involving the same defendant and the same victim. 

The "manifest injustice" referred to by Judge, Duffy of the Hudson 

Con Ity Court in his order of November 2, 1960, that the defendant's 

of non exult heretofore entered on February 29, 1960, in response 

-- -- 

1 itri f of H--, 9-380; Matter of H—, 

616 
to Indictments Nos. 27-59 and 25-59 and the sentences imposed as a 

result thereof on April 14, 1960, be vacated as if never entered was 

made for the specifically-stated reason that the court was not aware 

(at the time of first sentencing) that the defendant was subject to 

deportation as an alien, did not consider that the. defendant was 

faced with additional penalty of deportation and that it would be 

manifestly unjust to subject the defendant to the additional penalty 

aforesaid. This reason alone, the added penalty of deportation and 

no other, is given in the order to constitute the "manifest injustice" 

in the order to vacate and set aside pursuant to R.R. 3:7-10(a). 

This subject was considered by the Attorney General in Matter of 

P—. 9-293 (May 24, 1961). In that case the respondent was convicted of disorderly conduct in violation of section 722(S) of the 

Penal Law of New York in September 1954 and again in March 

19;59, both offenses involving moral turpitude. The 1959 conviction was set aside by the New York Trial Court on a writ of error 

coram nobis- and on October 2, 1959, the respondent was retried and 

again convicted on his plea of guilty and at this second trial the 

court recommended against deportation. The question was whether 

the recommendation at this time of the court against deportation met 

the requirement of section 241(b) that to be effective it must be made 

"at the time of first imposing judgment or passing sentence." Reliance was had upon United States ex rel. Piperleoff v. Esperdy, 2 in 

which the court held that the coram nobis proceeding in that case 

had no effect for the purpose of section 241(b). The Attorney General interpreted the Pip,:rkoff case to mean that the test to be 

applied under section 241 (b) in coram nobis cases was whether the 

court's "sole basis" for granting coram nobis was to make the statutory recommendation against deportation; that the accused's motives 

or purposes in seeking COMM, "ii0bi8 were immaterial, except insofar 

as they threw light upon the court's basis for vacating the conviction. After examining the record which showed (1) at the time of 

pleading guilty to the March 1959 conviction, the accused was not 

represented by counsel; (2) that as a result of the court's refusal 

of a request that the charges be translated into German, he was unable to understand the crimes against him; and (3) the conviction 

could result in his deportation; and that at the hearing only the 

first two grounds were urged, there being no mention made of deportation, the Attorney General found no difficulty in concluding that 

the opportunity to recommend against deportation was not the court's 

"sole basis" for vacating the March 1959 conviction; that it was 

clear that the court granted coram nobis because of a constitutional 

defect in the prior conviction. 

-267 F.2d 72 (C.A. 2, 1959). 

617 
In the present case, instead of the similar procedure of the writ 

of coram, nob is which had been abolished under New Jersey practice, 

resort was had to R.R. 3:7-10(a) to correct "manifest injustice." 

The "sole basis" stated on the record by the court in granting the 

motion to vacate was because it was not aware that the defendant was 

subject to deportation and the motion was granted to avoid the additional penalty of deportation. The fact that thereafter the respondent was proceeded against by an accusation rather than by an indictment should not make any difference 3in concluding that the 

recommendation against deportation was not made pursuant to section 241 (b) which enunciates a federal standard for the determination 

of what constitutes the first entry of judgment or the passing of 

sentence where it is manifest that the sole basis for the vacation and 

reentry of judgment was to repair the omission to make the statutory 

recommendation against deportation' The interdependency of Accusation 85-60 and Indictment No. 27-59 is shown not only by the 

common factors of accused and victim, corpus dalieti, and section of 

law violated but also by the reference in the record of conviction on 

Indictment 85-60 to Indictments Nos. 27-59 and 28-59 to the effect 

that these latter indictments were not dismissed until after the imposition of sentence on Accusation 85-60 and the making of the recommendation against deportation on March 30, 1961. It is concluded 

that the recommendation against deportation is not effective under 

the federal standard set forth in section 2 11(b) of the Immigration 

and Nationality Act. 

The conviction of robbery committed on February 13, 1959 (Accusation No. 85-60), the conviction of grand larceny of a motor 

vehicle committed July 18, 1958 (Indictment No. 31-58), and the 

conviction for possession of a stolen motor vehicle committed July 17, 

1958 (Indictment No. 30-58), support the deportation charge laid 

under section '241(a) (1). While under this view it is not necessary 

to consider whether the latter two convictions involved a single 

scheme, we believe we should discuss the finding of the special inquiry 

officer in this regard. 

Indictment No. 31-58 in violation of N.J.S.A. 2A:119-2 charged 

the respondent with stealing the automobile of one W—H— in 

3 Artiele 1, paragraph 5, New Jersey Constitution, provides no person shall 

be held to answer for a criminal offense unless on presentment or indictment 

of a grand jury except in cases now prosecuted without indictment. N.J.S.A. 

2A;152-1 defines indictment to include "accusation of crime"; it includes "inquisitiOn," "presentment," "information," as well. N.J.R.R. 3:4-2(a) provides 

"a criminal offense punishable by death shall be prosecuted by indictment. 

Any other criminal offense shall be prosecuted by indictment, unless the defendant. after having been advised of his right to indictment, shall, in writing 

signed by him waive such right, in which case he may be tried on accusation." 

4 United States ex rel. Piperkoff v. Esperdy, 267 F.2d 72 (C.A. 2, 1959). 

R1R 
Bayonne, Now Jersey, on July 18, 1958; and Indictment No 30-58 

charged possession of a stolen motor vehicle in violation of N.J.S.A. 

2A:139-3 committed the day before, July 17, 1958, in the same city 

and involving the property of one R—S—. Convictions on both 

indictments occurred in the County Court of Hudson, Jersey City, 

New Jersey. on October 17, 1958, and the respondent was given concurrent sentences of indeterminate terms in the New Jersey State 

Reformatory, sentences Were suspended and he was placed on 3 years' 

probation. The special inquiry officer has found alienage and that 

the crimes involve moral turpitude. He has, however, found that the 

Government has not borne the burden of establishing that the two 

crimes did not arise out of a single scheme of criminal misconduct. 

The examining officer placed into evidence the records of conviction and attempted to question the respondent. However, the respondent declined to testify upon advice of counsel and the records 

of conviction, plus the refusal of respondent to testify, constitute 

the sole evidence to support the charge under section 241(a) (4) of 

the Immigration and Nationality Act. 5The special inquiry officer in 

construing the records of conviction stated that they were as equally 

susceptible of an inference that the respondent might have been in 

the illegal business of stealing and disposing of stolen motor vehicles and thus that the two crimes under consideration were part and 

parcel of one scheme or plan of illegal business, as of an inference 

of two separated, unrelated and distinct crimes; and concluded that 

the test of substantial evidence was not satisfied by evidence which 

gives support to inconsistent inferences. 

We believe that this construction tales the imagination and is 

unsupported by the record. The records of conviction establish that 

the respondent had illegal possession of the stolen vehicle of one Son July 17, 1958, and that on the next day, July 18, 1958, stole the 

auto of one H—. The normal inference to be drawn from different 

crimes committal at different times against different. persons is that 

they were separate and distinct crimes and were not part of a common scheme or plan unless there is evidence to the contrary. It is 

concluded that the records of conviction establish a prima facie 

showing of deportability. 

The case of Chan-an Din. Khan. v. Barber 6stated that while it is 

true that many separate offenses may be committed by an individual 

in furtherance of some subjective predilection amounting to a general 

scheme of criminality, to hold that a mere lurking propensity to corn5 S.ection 241(a) (4) of the Immigration and Nationality Act (8 U.S.C. 

1251(a) (4) ) provides for the deportation of an alien who has, subsequent to 

entry into the United States, been convicted of at least two crimes involving 

moral turpitude not arising out of a single scheme of criminal misconduct. 

147 F. Supp. 771 (N.D. Cal., N.D., 1957). 

619 
mit certain kinds of offenses manifests a "single scheme" within the 

meaning of section 1251(a) (4) would be, in effect, to render nugatory 

a declared public policy to deport aliens who are convicted of two 

crimes involving moral turpitude; a more reasonable and rational interpretation of this language is that Congress contemplated nothing 

more than those situations where an alien's conviction i5 based on a 

multiple indictment charging him with separate crimes, which were 

committed by the doing of a single act or a series of simultaneous or 

closely related connected acts. The Court of Appeals affirmed, holding that fraudulent returns in two different years could, or could 

not, be one plan or scheme but that the case presented no facts to 

prove such a single scheme; and, in the absence of all evidence to 

the contrary, complete crimes committed on different dates or in different places are considered separate and different crimes and support 

separate charges.' 

This reasoning was quoted with approval in Wood v. floys in 

which the court, however, found that there was evidence to the con 

trary based upon the alien's testimony which overcame the prima 

facie case established solely by the record of conviction .° The court 

in Wood v. Hoy referred with approval to the case of Jeronimo v. 

Murff . 1° This case involved a multi-count indictment involving several larcenies and briberies covering a stated period; the court 

laid great stress on the concluding paragraph of the indictment 

which charged: "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"; and the grand jury 

found that all the acts and transactions Alleged in the indictments 

were connected together. The court in Jeronimo distinguished the 

case from Fitzgerald ex rel. Miceli v. Landon" and Chanan Din 

Khan v. Barber '-2by pointing to the following evidentiary facto 

which convincingly established a single scheme in that case: the 

initial formulation of the same subsisting fundamental object and 

purpose; the utilization of precisely the same methods and procedures in each of a series of successive situations to accomplish the 

original objective; the continuously interacting relationship and 

cnanan Din Tan v. Barber, 253 F.20 547 (C.A. 9, 1938). 

266 F.2d 825 (C.A. 9, 1959). 

9 The court commented ou the case of Fitzgerald ex rel. Miceli v. Landon, 

238 F.2d 864 (C.A. 1, 1956), in which the court concluded it had no reason to 

believe that Lilt petitivuer was eunvitAed of being lewd, wanton and lascivious 

solely on the basis of the one act of indecent assault charged in the first 

count; but criticized the implication in Miceli to the effect that the proviso is 

to be interpreted as "crimes arising out of a single act of criminal misconduct." 

.0157 F. Supp. 808 (D.C., S.D.N.Y., 1957). 

11238 F.2d 864 (C.A. 1, 1956). 

12147 F. Supp. 771. 

020 
activities of the same persons who originated and launched the proj 

ect; the victimizing of the same person through all of the acts 

which, in the aggregate, demonstrated the existence of a single 

criminal enterprise, project and undertaking, and found that the 

record conclusively established that the four larcenies upon which 

the proposed deportation was based arose out of a single continuing 

criminal enterprise. In the instant case there was no indication 

in the indictment of an allegation of a CO111111011 scheme and plan nor 

were the same persons victimized, but two different vehicles were 

stolen from two different persons on different dates. 

In the case of Zito v. Illoutal,'3 the plaintiff was convicted on a 

12-count indictment which charged conspiracy and 11 substantive 

violations of the Internal Revenue Act, in which the examining 

officer introduced into the evidence only a certified copy of the 

indictment, judgment and conviction and the alien rested without 

producing any evidence. The court followed the reasoning of 

Jeronimo, supra, because the only evidence, the record of conviction, 

failed to conotitute eubetantial evidence because the indictment 

charged a continuing conspiracy, the offenses were of the same type, 

the victim was the same and the same defendants participated in 

the commission of the offenses. The court found the offenses had a 

common subject matter and that the object of each crime was the 

same. Again, the present case may be distinguished because the 

crimes were different and the victims were different and the record 

of conviction shows neither a common subject or a common objective. 

in Matter of C—, 9 - 524 (Jan. 2, 1962), in which the respondent 

was convicted in a single trial of filing fraudulent tax returns for 

the years 1948 and 1949, the record of conviction constituting 

the only evidence when the respondent refused to testify at the 

deportation hearing, it was found that in the absence of probative 

evidence to the contrary, the record of conviction failing to show acts 

in furtherance of a common plan would suffice to establish a single 

scheme did not exist, and the Board held there was no probative 

evidence controverting the inference which flows from the commission 

of crimes a year apart. In the instant case, the record of conviction 

showing the commission of different crimes on different dates against 

different persons supports the charge in the absence of evidence to 

the contrary. The crimes here- do not meet the single .scheme test 

of commission pursuant to the formulation of overall plan to accomplish an original objective in each of a series of successive criminal 

projects. It is concluded that these two convictions do not comprise 

a single scheme. Deportation will be ordered upon that portion of 

the second lodged charge which is comprehended by the amended conclusion of law (2) below. 

10174 F. Supp. 531 (N.D. Ill., 1959). 

621 
The findings of fact and conclusion of law made by the special 

inquiry officer on November 13, 1961, are hereby adopted except that 

finding of fact (9) is amended to read: 

(9) That the offenses for which the respondent was convicted under Accusation #85-60 and Indictments #30-58 and #31-58 did not arise out 

of a single scheme of criminal misconduct; 

and the conclusion of law is amended to read: 

(1) That the recommendation against deportation on March 30, 1961, was 

not effective under section 241(b) of the Immigration and Nationality 

Act; 

(2) That the respondent is subject to deportation under section 241(a) (4) 

of the Immigration and Nationality Act in that he at any time after 

entry has been convicted of two or more crimes involving moral turpitude; robbery commIlLed February 13, 1959, grand larceny committed 

July 18, 1958; and possession of a stolen motor vehicle committed July 

17, 1958. 

ORDER: It is ordered that the alien be deported to Poland pursuant to law on the following charge: 

Section 241(a) (4) of the Immigration and Nationality Act in that at any time 

after entry he has been convicted of two or more crimes involving moral turpitude: robbery committed February 13, 1959, grand larceny committed July 

18, 1958; and possession of a stolen motor vehicle committed July 17, 1958_ 

622