A-3203990.
Decided by Board November 23, 1954.
Single scheme of criminal misconduct — Section 241 (a) (4) of Immigration and Nationality Act.
Conviction on two counts of income tax evasion with each count relating to a separate year is not conviction of crimes arising out of a single scheme of criminal misconduct within the meaning of section 241 (a) (4) of the Immigration and Nationality Act. Charges combined in one indictment or information under separate counts constitute distinct crimes; and the instant information makes no mention of any continuing scheme of tax evasion. Separate and independent acts of income tax evasion in two given years are neither continuing offenses nor a continuing scheme of evasion. (Cf. 5 IN Dec. 470 and 728, and Interim Decision No. 614.)
BEFORE THE BOARD
Discussion: This case is before us on motion of counsel for reconsideration of the Board's decision of May 28, 1954, holding respondent deportable under section 241 (a) (4) of the act of 1952 as an alien convicted of two crimes after entry not arising out of a single scheme of criminal misconduct. Respondent, a 44-year-old native and citizen of Canada, last entered the United States in May 1947, as a returning resident. His original admission for permanent residence occured on December 4, 1918, at Eastport, Idaho.
On January 15, 1953, an information was filed in the United States District Court for the Western District of Washington, charging respondent with three counts of attempted income tax evasion under 26 U.S.C. 145 (b). On July 31, 1953, respondent pleaded guilty in the United States District Court for the Eastern District of Washington to counts two and three of the information, which charged him with understating his income by approximately $12,000 for the fiscal year ending October 31, 1947 (count two), and by approximatly $45,000 for the fiscal year ending October 31, 1948 (count three).
On July 31, 1953, respondent was sentenced to one year and three months' imprisonment on each of the two counts with the sentences to run concurrently; he was also fined $2,500 on each of the two counts. On September 12, 1953, respondent's sentence was modified and reduced to one year and one day on each of counts two and three, with the fines remaining the same. On November 6, 1953, the court vacated and reduced the sentences, imposing 11 months on each of counts two and three to be served concurrently, with the amount reduced by the amount of time already served in McNeil Island Prison, beginning August 17, 1953.
On the basis of the deportation charge, there are only two issues in the instant case. First of all, the question of whether a violation of 26 U.S.C. 145 (b) is a crime involving moral turpitude is controlled by Matter of W----, E-137668, 5, I. N. Dec. 759 (B.I.A., 1954; 22 Law Week 2613). In that case, the Board held that while it has been judicially determined that "evade" does not mean intent to defraud, the word "willfully" connotes a purposeful intent, because it serves to differentiate between conscious or deliberate acts and accidental or unintentional infractions.
The remaining question is whether a conviction for two offenses of income tax evasion arise out of a single scheme of criminal misconduct, as the words are used in section 241 (a) (4) of the Immigration and Nationality Act of 1952. With regard to the words "single scheme of criminal misconduct," the legislative history of the 1952 act is silent as to which specific persons the phrase was intended to include.
Section 241. (a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who —
This exact problem has occurred in several recent cases under section 241 (a) (4) of the act of 1952. If an alien commits three distinct acts of robbery on separate persons at different times and also attempts to commit a similar offense on a fourth person, these crimes do not arise out of a single scheme of criminal misconduct, as the words are used in section 241 (a) (4) ( Matter of A----, 532/271, 5 IN Dec. 470).
Furthermore, an alien convicted on two separate occasions for obtaining money under false pretenses from two different groups of persons is deportable under section 241 (a) (4) when he commits a complete distinct crime, is convinced for it, then repeats the offense, and is again convicted. The Board determined that those crimes were not part of a single scheme of criminal misconduct and stated:
The fact that one (offense) may follow the other closely, even immediately, in point of time is of no moment. Equally immaterial is the fact that they may be similar in character, or that each distinct and separate crime is a part of an over-all plan of criminal misconduct ( Matter of D----, E-077114, 5 IN Dec. 728 (B.I.A., April 7, 1954)).
In addition, when an alien was convicted on two counts of forgery and uttering checks contrary to 18 U.S.C. 495 (each count dealing with a different check on a distinct occasion), the Board held that when an alien accomplishes a specific criminal objective through a particular act, he is convicted thereof, and these events are repeated, the alien is deportable even though he had envisioned an overall plan of crime, including these and other offenses. The crimes for which the alien was convicted were not considered as arising out of a single scheme of criminal misconduct ( Matter of Z----, A-7241069, Interim Decision No. 614 (B.I.A., June 4, 1954)).
See also, United States ex rel. Barile v. Murff, 116 F. Supp. 163 (D.C. Md., 1953).
Turning to the facts in the present case, we note that respondent was convicted on two counts of income tax evasion, with each count relating to a single year. Counsel feels that the use of one indictment divided into several counts may have some significance in the present discussion. Criminal precedents in United States law make it clear that charges combined in one indictment or information under separate counts constitute distinct crimes. Coupling in a single indictment or information is only a matter of convenience. Therefore, because this view has a firm basis in American criminal law, it cannot be dismissed lightly as a mere artificial or technical approach to the question, as counsel suggests.
"The word `count' is used when in one finding by the grand jury the essential parts of two or more separate indictments for crimes apparently distinct are combined, the allegations for each being termed a `count' and the whole an `indictment' * * *. The object is to charge the defendant with the distinct offenses, under the idea that the court may, as often as it will, allow them to be tried together, thus averting for both parties the burden of two trials * * *. On the face of the indictment, every separate count should charge the defendant as if he had committed a distinct offense, because it is on the principle of joinder of offenses that the joinder of counts is permissible" ( Boren v. State, 23 Tex. App. 28, 4 S.W. 463 (1887)).
However, it is well established that the import of the crime can only be obtained from the statute involved and the record of conviction ( United States ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2, 1933); United States ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2, 1931)).
Because the wording of 26 U.S.C. 145 (b) is of little assistance, we are limited to the record in the present case, consisting of the information, plea, and sentence. But, the facts as reflected in the information (dated January 15, 1953) make no mention of any continuing scheme of tax evasion. The facts in the instant information are limited to the method by which respondent willfully attempted to evade income taxes (in the words of the statute) as disclosed by a false return filed on a given date.
26 U.S.C. 145 (b) provides as follows: Failure to collect and pay over tax, or attempt to defeat or evade tax. Any person required under this chapter to collect, account for, and pay over any tax imposed by this chapter, who willfully fails to collect or truthfully account for and pay over such tax, and any person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution (53 Stat .62, as amended October 21, 1942).
Since the combining of individual income tax violations in separate counts of a single information is purely a procedural assist for the courts and the parties, a separate and independent act of income tax evasion in each given year was properly alleged as a separate offense in distinct counts, which in the instant case were appropriately grouped in one information.
In reality, each time respondent failed to record a financial transaction on his books and pocketed the money without leaving a trace in his accounts, he laid the foundation for a separate offense against the United States. The fact that a series of these acts within a year were lumped together is not accidental, for the statute particularized the offense as of the date of the filing of the false return on the due day at the end of respondent's fiscal year for tax purposes. The fact still remains that respondent was involved in a series of illegal acts and as a result was guilty of criminal misconduct for which he served time in the federal penitentiary.
Practically speaking, respondent's actions were neither continuing offenses nor a continuing scheme of evasion, for respondent was under no compulsion to act as he did and was free to cease his purposeful acts of attempted tax evasion at any time.
United States v. Johnson, 123 F. (2d) 111 (C.C.A. 7, 1941), rev. on other grounds 319 U.S. 503 (1943). This case does not support counsel's single scheme theory, because the continuing offense issue arose primarily because Johnson and co-defendants were also charged with conspiracy under 18 U.S.C. 88. In addition the court held that the date of commission of an offense under 26 U.S.C. 145 (b) is the date required for filing of a return. The court held that each count for violation of 26 U.S.C. 145 (b) in each of four years was a separate offense for each year, citing United States v. Sullivan, 98 F. (2d) 79 (C.C.A. 2, 1938) (See also, Norwitt v. United States, 195 F. (2d) 127 (C.A. 9, 1952)).
It is noted that counsel has attempted to explain respondent's acts of income tax evasion in the following way: Respondent, as an International Harvester Company representative, was reportedly directed by the company to apportion his steadily increasing profits from franchises in Colfax and LaCross, Washington, by reserving a portion of each year's business profits for improvements, such as a new building in one of the towns. However, respondent allegedly did not feel that business improvements were warranted in such rural area. To avoid this supposed company order, respondent began his practice of suppressing sales by failing to turn over sales memoranda to his bookkeeper and exchanging the checks received in payment for currency, which he then deposited in personal bank accounts or used to acquire property for his own use. However, respondent's intentions or motives for his criminal activity are of no consequence here, in view of the reality of his conviction ( Tillinghast v. Edmead, 31 F. (2d) 81 (C.C.A. 1, 1929); United States ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2, 1931); Cf., United States ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2, 1933)).
Simply because an alien commits a crime and later repeats this offense the conclusion does not follow that the offenses were part of a single scheme, even though the crimes were similar. If each criminal act was a complete and distinct offense for which the alien was convicted, repetition of the particular crime would generally not constitute a single scheme. Robbery involving separate persons at different times, false pretenses involving distinct offenses, forgery and uttering of different checks at different times, after conviction, have been held as not arising out of a single scheme of criminal misconduct ( Matter of A----, Matter of D----, Matter of Z----, supra).
On the other hand, we feel that a single scheme of criminal misconduct is present, if in the preformance of one unified act of criminal misconduct several criminal offenses (for example, breaking and entering followed by larceny or an attempt to escape after an assault) are committed.
In addition, as we pointed out in the Z---- case, the repetition of a particular criminal act plus conviction for it is not considered as a single scheme, even though the alien had an over-all plan of crime in the back of his mind. Similarly, in the present case, the existence of a long-range plan to evade income taxes does not change the definite fact that the crime was committed when a return, required by statute, was filed. Hence, a second offense was committed when the second return was filed and the latter crime was completely separate and distinct from the former.
Therefore, since the coupling of charges in various counts is purely a procedural device and does not constitute a substantial determination that the crimes are interdependent, we must conclude that the offenses in the instant case do not involve a "single scheme of criminal misconduct." The charge under section 241 (a) (4) is sustained.
It is noted in passing that respondent is not without recourse to avert deportation, for he is free to apply for a pardon. If such a petition for Executive clemency were granted, the ground of deportation would be nullified under section 241 (b) (1). Counsel's failure to make a timely application to the United States District Court, Eastern District of Washington, for a recommendation against deportation, forecloses this form of relief under section 241 (b) (2) ( Matter of M---- G----, E-069541, 5 IN Dec. 531 (B.I.A., November 18, 1953)).
For these reasons, the motion is denied.
Order: It is hereby ordered that the motion be denied.