A-5638860.
Decided by Board November 2, 1955.
Crime involving moral turpitude — Accessory before the fact, uttering, sections 2 and 3 of Chapter 274 and Section 5 of Chapter 267 of the Laws of Massachusetts — Deportability under section 241 (a) (4) of Immigration and Nationality Act.
Conviction of being an accessory before the fact pursuant to sections 2 and 3 of Chapter 274 of the Laws of Massachusetts is conviction for a crime involving moral turpitude when the substantive offense is one involving moral turpitude. In the instant case, the substantive offense is that of uttering in violation of section 5 of Chapter 267 of the Laws of Massachusetts which is a crime involving moral turpitude. Therefore, respondent's convictions in 1955 under sections 2 and 3 of Chapter 274 of the Laws of Massachusetts are convictions for two crimes involving moral turpitude.
CHARGES:
Warrant: Act of 1952 — Section 241 (a) (4) — Convicted after entry of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of a special inquiry officer dated September 21, 1955, holding the alien deportable on the warrant charge. Respondent, a 41-year-old native and citizen of Canada, last entered the United States at Detroit, Michigan, on August 15, 1953, after a 24-hour absence from the United States in pursuit of his employment as a truck driver. Respondent was originally admitted for permanent residence on June 11, 1948.
Respondent was convicted on a plea of guilty on January 7, 1954, in the Superior Court, Uxbridge, Worcester County, Massachusetts, of larcery of money ($800), committed on September 15, 1952. The alien was sentenced to 10 months in the house of correction. Although respondent denies commiting larceny (stating his act was only a default on a finance company loan), we must accept the conviction at its face value and are precluded from going behind the record ( United States ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2, 1933)). Moreover, the crime of larceny in Massachusetts under section 30 of Chapter 266 of the Laws of Massachusetts, definitely involves moral turpitude ( Matter of M----, 56205/971, 2 IN Dec. 530, 531 (B.I.A., 1946)).
Respondent was convicted on a plea of guilty on May 18, 1955, in the Superior Court for Worcester County, Massachusetts, of two offenses of inciting, procuring, aiding, counseling, hiring or commending another, before the commission of the felony was committed, of uttering and publishing a forged instrument "purporting to be a check and order for money." each act related to a distinct locale and a different person. Respondent testified that in one instance a $41 check was involved and in the other a $60 check, with both amounts being reimbursed by the principal involved. The pertinent sections of the Laws of Massachusetts provide as follows:
C. 274, Section 2. Accessory Before the Fact.
Whoever aids in the commission of a felony, or is accessory thereto before the fact by counseling, hiring or otherwise procuring such felony to be committed shall be punished in the manner provided for the punishment of the principal felon. (1784, 65, sect. 1; 66, sect. 9; 1804, 131, sect. 1; R.S. 133, sect. 1; G.S. 168, sect. 3; P.S. 210, sect. 3; R.L. 215, sect. 2.)
C. 274, Section 3. Accessory Before the Fact: When and How Tried.
Whoever counsels, hires or otherwise procures a felony to be committed may be indicted and convicted as an accessory before the fact, either with the principal felon or after his conviction; or may be indicted and convicted of a substantive felony, whether the principal felon has or has not been convicted, or is or is not amenable to justice; and in the last mentioned case may be punished in the same manner as if convicted of being an accessory before the fact. An accessory to a felony before the fact may be indicted, tried and punished in the same county where the principal felon might be indicted and tried, although the counseling, hiring or procuring the commission of such felony was committed within or without this commonwealth or on the high seas. (1830, 49, sects. 1, 2; R.S. 133, sects. 2, 3; G.S. 168, sects. 4, 5; P.S. 210, sects. 4, 5; R.L. 215, sect. 3.)
C. 267, Section 5. Uttering Forged Record or Contract.
Whoever, with intent to injure or defraud, utters and publishes as true a false, forged or altered record, deed, instrument or other writing mentioned in the four preceding sections, knowing the same to be false, forged or altered, shall be punished by imprisonment in the state prison for not more than 10 years or in jail for not more than two years. (1692-3, 18, sect. 8; 1784, 67; 1785, 21, sect. 3; 1804, 120, sect. 1; 1805, 88, sect. 1; R.S. 127, sect. 2; G.S. 162, sect. 2; P.S. 204, sect. 2; 1901, 371, sect. 2; R.L. 209, sect. 3; 1909, 155, sect. 2.)
The purpose of sections 2 and 3 of Chapter 274 was to facilitate the conviction of an accessory before the fact. Under the common law, it was necessary for the principal felon to be convicted before the accessory before the fact could be tried for his part in the crime. Now, it is no longer essential to show the latter's conviction, although it is necessary to prove the principal's guilt. While the legal distinction between principal and accessory remains, an accessory before the fact is punishable in the same fashion as the principal by reference to the definition of the substantive offense and the penalty so imposed by the statute ( Commonwealth v. DiStasio, 298 Mass. 562, 11 N.E. 2d 799; Commonwealth v. Bloomberg, 302 Mass. 349, 19 N.E. 2d 62; Commonwealth v. Mannos, 311 Mass. 94, 40 N.E. 2d 291).
The principal is the person who is actually committing the criminal offense, while the accessory is one who has advised, aided or abetted another in the commission of a felony and is either absent at the time the crime is committed or if present is not actively participating.
Hence, for purposes of the immigration statutes, the import of respondent's 1955 convictions is determined by reference to the phraseology of the substantive offense. Since section 5 of Chapter 267 contains the words "with intent to injure or defraud," the test set out in Jordan v. DeGeorge, 341 U.S. 223 (1951) is applicable. In that case, the Supreme Court determined that crimes containing an inherent fraud element, as in the present case, involve moral turpitude. Hence, respondent's conviction for uttering in Massachusetts in 1955 was a conviction for two such crimes involving moral turpitude.
Since each of respondent's uttering infractions was set out in separate indictments which resulted in different convictions, they constituted distinct criminal offenses. In addition, the respondent's 1954 conviction for larceny constituted another separate offense, and therefore respondent's crimes did not arise out of a single scheme of criminal misconduct and he is deportable under section 241 (a) (4). Matter of Z----, A-7241069, Int. Dec. No. 614 (B.I.A., 1954); Matter of J----, A-3203990, Int. Dec. No. 656 (B.I.A., 1954). It is noted in passing that any one entry by an alien may be used in support of a deportation charge. Since the deportation charge, arising from a conviction "after entry," must relate to crimes committed in the United States after entry and consequent convictions occurring in this country, respondent's convictions fall in this category and he is consequently deportable under section 241 (a) (4) ( Matter of A----, A-5170719, Int. Dec. No. 716 (B.I.A., August 18, 1955)). The appeal is accordingly dismissed.
Section 241 (a). Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who — * * *
(4) * * * at any time after entry is 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 the convictions were in a single trial.
Order: It is hereby ordered that the appeal be dismissed.