MATTER OF B— 

In DEPORTATION Pr0000dings 

A-5731074 

Dooidod 51, Board Docembrr 31, 1935 

Crime involving moral turpitude—"Single scheme" not present where all of 

the separate criminal acts were performed pursuant to over-all scheme to 

embezzle funds. 

(1) Single scheme of criminal misconduct is not established where respondent 

was convicted on separate counts of an indictment for passing forged checks 

on two different occasions (August 1 and August 10, 1957) notwithstanding 

general criminal intent to defraud victims so long as trust funds remained 

available to respondent. 

(2) The same conclusion is reached in respect to respondent's conviction on 

separate sounfs of an indictment for larceny by trust committed at different 

times (1995 and 1957) despite continuing over-all plan to embezzle funds 

entrusted to respondent by the members of a partnership. 

CHARGEs 

Order: Act of 1952—Section 241 (a) (5) [8 U.S.C. 1251(a) (5)1—Willful and 

unexcusable failure to his alien address report. 

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

aster entry of two crime, Invulviu, wolal turpitude: not urIoing 

out of a single scheme of criminal misconduct—larceny after trust, 

and uttering and passing forged check. 

BEFORE THE BOARD 

Discussion: This is an appeal from the order of the special inquiry officer requiring respondent's deportation upon the grounds 

stated above. The appeal will be dismissed. 

Respondent, a 51-year-old divorced female, was born in China 

and is it national of Great Britain. She was admitted to the United 

States for permanent residence on July 11, 1920. She alleges that 

she was outside the United States in 1935 with her husband, a 

United States citizen, who was employed in the Canal Zone by 

this government, and that she had a reentry permit when she returned. 

The criminal grounds of deportation are based upon the fact 

that after her last entry, the respondent was convicted of crimes 

involving moral turpitude. The issue is whether these convictions 

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were based on offenses "arising out of a single scheme of criminal 

misconduct." We hold that a single scheme did not exist. 

Respondent was convicted in De Kalb County Superior Court, 

Georgia, for larceny by trust (2 counts) and pawing a forged 

check (2 counts). A grand jury sitting in the December 1957 

term of the Superior Court, De Kalb County, Georgia, handed 

down two indictments concerning the respondent. Indictment No. 

7022, in two counts charged the respondent with larceny after trust. 

The first count charged that on August 3, 1955, and other unspecified times frnrn January 1955 to December 1956, the respondent had 

converted to her own use money which she had been given by a 

partnership of 3 doctors for the use of the partnership. The sum 

involved was over a hundred-thousand dollars. The second count 

charged her with the same crime committed on June 28, 1957, 

and other unspecified times from January 1, 1957, to July 31, 

1957, and involved over fifty-thousand dollars. The money described 

in the second count was the property of the partnership consisting 

of the same three doctors and a fourth doctor. This partnership 

used the name "The Decatur Clinic." Respondent was first tried on 

indictment 7022. She entered a plea of not guilty but was found 

guilty. On February 10, 1958, she was sentenced to 5 years on 

each count, the sentence to be served concurrently.' 

I Larceny by trust occurs when one entrusted by another with property of 

the other to be used for the benefit of the other takes it with intent to steal. 

If larceny of an aggregate amount over a period of time is charged, it is not 

necessary to prove the theft of the whole amount charged (Hagood v. State, 

5 Ga. Ap. 80, 62 S.E. 641). The State is permitted to give evidence showing 

the larceny of the full amount or part thereof at any time within the period 

of the statute of limitations. (There is no indication that the government 

relied upon acts committed on dates other than those set forth in the indictment.) Only one judgment can be given on such an indictment, and the 

judgment of conviction will enable the convicted person to enter a plea of 

autrefois convict in bar of a subsequent charge of larceny of either the full 

amount or any part thereof, irrespective of what evidence was introduced to 

obtain the conviction. If a judgment of acquittal is entered, the plea of 

autrefois acquit would be available (Lewis v. State, 82 Ga. Ap. 280, (i0 S.E. 

2d 663). If, however, the State set forth a series of conversions on designated 

dates and stated that the dates were of importance, convictions for larceny of 

trust could be obtained as to each date and separate punishment could be 

imposed on each count. (See Martin v. State. 73 Ga. Ap. 573, 37 SM. 24 411.) 

In the inotant onto, tho data tun,: not rnsde n mntprthl element The ennvi elion obtained on the first count would bar any further conviction for larceny 

by trust based on any act occurring in the period specified. The conviction 

on the second count was apparently possible only because in the eyes of the 

law the money taken belonged to an entirely different entity. However, it 

would appear that the conduct described in count two was merely a continuation in the new partnership, of the unlawful course of action respondent 

had begun when employed by the original partnership. 

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Indictment No. 7023 charged the respondent with fraudulently 

passing a forged check on 2 occasions. Count 1 charged that she 

had drawn check No. 803 on The Decatur Clinic payable Lu C 

C in the sum of $65.69. The check was dated July 15, 1957, 

and was passed on August 1, 1957. Count 2 charged the passing 

of forged check No. 806 drawn upon the same bank and same 

account. The check was also dated July 15, 1957, but was passed on 

August 10, 1957. It was payable to and was in the 

cum of $92.62. On the same day nn which she was sentenced on 

the larceny counts she entered a plea of guilty to both counts in 

indictment 7023 for passing forged checks, and on the same date 

received a sentence of from 2 to 5 years on each count concurrently, 

the sentences to run concurrently with those imposed on indictment 

7022. 

If convictions arise out of a single scheme, the law prevents 

their use for deportation purposes where proceedings are brought 

on the ground that the alien had been twice convicted [section 

241(a) (4), Immigration and Nationality Act; 8 U.S.C. 1251(a) 

(4)]. The problem of interpreting the phrase "single scheme" has 

been before us since the passage of the Immigration and Nationality 

Act of 1952 in which it appeared for the first time. The problem of 

intorprotatinn is particularly difficult in a case such as this which 

involves continuing criminal misconduct. The pull of logic is to 

find a "single scheme" because there exists a planned scheme of 

crime involving the same criminal and victim. However, viewed 

with the insights gained from immigration history, we have found 

that Congress could not have intended that the words be given 

such a meaning, but rather that Congress intended to continue the 

protection which existed against. Lhe deportation of an alien who 

had been twice convicted for what was essentially ane act. 

Before the Immigration and Nationality Act, there existed this 

safeguard against the deportation of an alien who had been convicted of two offences arising out of one act or transaction; one act 

resulting in two convictions could not result in deportation. To 

make the alien deportable, he had to commit one crime for which 

he was convicted, and sentenced, confined, and then, despite the 

judicial deterrent, he again had to commit a crime for which he 

was convicted, sentenced, and confined. In the Immigration and 

Nationality Act, Congress removed the necessity for the intervening 

judicial action, and the necessity for the confinement. Had nothing 

further been said, a question would have existed as to whether two 

convictions arising from the commission of one act or episode should 

serve as a ground of deportation. By the use of the term "single 

scheme" Congress indicated that it still desired to retain the protection against the deportation of the alien whose conviction arose 

238 
out of one episode. The difficult question was whether Congress 

intended the protection to extend strictly to the situation where there 

was only one act affecting one person (counterfeiting and possession 

of counterfeit money) or whether Congress intended to protect the 

alien who had committed several acts, which, factually viewed, 

were in essence one act or episode (assault on home owner and burglary). We decided in favor of the broader construction because 

of the nature of deportation proceedings and the injunction of the 

courts to interpret the law in favor of the alien if a doubt existed. 

Therefore, we have found the existence of a single scheme in any 

situation in which essentially one episode existed (Matter of ,1—, 

6 I. & N. Dec. 382; Matter of Z , 6 I. & N. Dec. 167; Matter of 

0 , 7 I. & N. Dee. 539). We have found a number of situations 

which fit this description. Following are categories in which we find 

one episode or single scheme to exist : 

(1) Where there is in fact one physical act affecting one person (counterfeiting and possession of counterfeit money; laceny and unlawfully receiving 

stolen goods, etc.), the law looks upon the same act from two viewpoints. 

(2) Where there are a series of similar acts which occurred at "one time." 

(A, B, & C are robbed by the alien at the same time ; A & B are indecently 

mama at tne same time. It is mn Klugle seneme if the alien robs A and after 

completing this crime and escaping, shortly thereafter robs B in a separate 

episode of crime.) 

(3) Where the acts occur within a comparatively short time of each other, 

involve ins same parties, and the nest net vr acts are umutultten for the pun 

pose of making possible the specific criminal objective accomplished by the 

last of the criminal acts (assault on home owner and robbery of his house). 

It is not a single scheme if the first acts are meaningful in and of themselves 

in that they have no relation to the completion of the second act which would 

have happened whether or not the first had taken place (submitting fraudulent 

bills for painting to the same person over a period of time; sale of illegal 

liquor to A on occasions two weeks apart). Intent to make a living by criminality does not make the separate unrelated acts a singie scneme. 

We shall now attempt to apply the rules to the convictions for 

passing forged checks on August 1, 1957, and on August 10, 1957. 

The situation does not fit any of the categories we have set forth. 

The third category which is the closest one, does not apply because 

each act of passing is meaningful in and of itself. There is no 

relation between the commission of the first act and the second. 

The second passing could have taken place whether or not the first 

passing had been performed. Nor does the passing of the two 

checks impress itself as being in other respects essentially the same 

criminal episode. The criminal purpose to pass the forged check 

described in count 1 had no relation to the specific criminal purpose to pass the check described in count 2. The existence of a 

general criminal intent to rob and rob as long as funds remained 

winch could be reached, did not make a single scheme of what is 

in fact two separate unrelated acts. In situations similar to that 

239 
found in indictment 7023 where there was a continuing plan to 

commit similar actions on different occasions, but separate unrelated acts were performed, we have held that a single eshemo dove 

not result (Matter of Z, 6 I. & N. Dec. 167). These convictions 

alone would support the order of deportation. 

The larceny convictions resulted from acts one of which occurred 

on August 3, 1955, and the other on June 28, 1957. Here again, the 

situation falls into no category although the third category is the 

closest. Thorn is no evidence that the criminal act which was 

planned and performed in 1955 was necessary to the accomplishment 

of the criminal act planned and performed in 1957. Each act is 

meaningful standing alone. The second act could have been performed even though the first never existed. (The time which 

elapsed between the two acts, the fact that two different partnerships were involved, and the rule that under an indictment worded 

such as is the one involved here, there can be only one conviction 

for larceny by trust arising out of the continuing course of conduct involving the same parties, make it clear that the second conviction was not for the doing of an act which had for its end the 

achievement of the specific criminal purpose which was described in 

the first count.) A single scheme is not present and the convictions 

for larceny by trust would by themselves satisfy the requirement of 

the law concerning two convictions for crimes involving moral 

turpitude not arising out of a single scheme. 

The convictions for larceny or the convictions for passing would 

by themselves support an order of deportation. May the conviction 

for larceny be used with one for passing? We think it can. If a 

conviction for passing had been based on the same act which served 

as the basis for a larceny conviction, are would hold that both convictions arose out of a single scheme. It would not appear that 

such convictions are possible in Georgia (See, Harris v. State, 193 

Ga. 109, 17 S.E. 2d 573; Haden v. State, 196 Ga. 850, 28 S.E. 2d 

71). However, we do not rely upon such a belief. This record 

does not show that identical transactions were relied upon to obtain convictions for larceny and for passing. The indictments for 

larceny specify different days than do the indictments for passing. 

The respondent doesn't allege that proof of unlawful acts varied 

from those charged in the indictments. Thus, even looking upon 

the passing of the forged checks as a step in the plan to einbevrie or 

commit larceny by fraud, we find that the unlawful acts of passing 

are separate and independent from those of larceny. Whatever 

may have been the general purpose of the respondent in passing 

the checks, the passing was not necessary to complete the specific 

criminal purpose set forth in the larceny counts. The convictions 

for larceny may, therefore, be used with those for passing as the 

basis for deportation. 

240 
The failure to register is established. Respondent's explanation of 

the circumstances surrounding her alleged registration and her failure to register in previous years is difficult to accept. We believe 

the first charge is sustained. Ws find no prejudicial error corn 

mated in the conduct of the hearing or in the receipt of evidence. 

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

dismissed. 

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