A5937740 (56082/651)
Decided by the Board June 6, 1944.
Conspiracy to Defraud the Government of Tax — Commission prior to entry.
1. The crime of conspiracy is complete upon the performance of an overt act committed by one of the conspirators for the purpose of effecting the object of the conspiracy and it continues so long as any overt acts are committed.
2. Where an alien is convicted subsequent to his last entry into the United States upon a plea of guilty to an indictment charging the crime of conspiracy to defraud the Government of tax, covering a period both before and after such entry, but the last overt act furthering such conspiracy takes place prior to that entry, the appropriate deportation charge is that he admits the commission of such crime prior to entry.
CHARGES:
Warrant: Act of 1917 — Sentenced to a year or more because of conviction of crime committed within 5 years after entry (18 U.S.C. 88 and 26 U.S.C. 1441).
Lodged: Act of 1917 — Admission of commission of crime prior to entry (18 U.S.C. 88 and 26 U.S.C. 1441).
BEFORE THE BOARD
Discussion: We considered this case on March 6, 1943, on which date we directed that the proceedings be reopened for the purpose of lodging the charge that the respondent was deportable under section 19 of the Immigration Act of 1917 as an alien who admitted the commission of a crime involving moral turpitude prior to entry, to wit: conspiracy to defraud the Government of tax. The case is now before us on the reopened record. The Presiding Inspector proposes that the respondent be deported on the lodged charge. At the earlier hearing the respondent was represented by counsel. Exceptions were filed to the recommendation of the Presiding Inspector made after the close of the original hearing that the respondent be deported on the warrant charge. The respondent's counsel withdrew from the case prior to the reopening. Exceptions to the recommendation made on the reopened record have been waived.
The respondent is a native and citizen of Italy, 48 years of age, married. He last entered the United States on July 20, 1939, at Detroit, Mich., and was admitted for permanent residence. On March 10, 1941, the respondent was convicted in the District Court of the United States for the Eastern District of Michigan, Southern Division on his plea of guilty of conspiracy to unlawfully remove, deposit and conceal distilled spirits in the respect to which a tax was imposed by the United States with intent to defraud the United States of such tax in violation of title 18, U.S.C., section 88 and title 26, U.S.C., section 1441. He was sentenced to imprisonment for a term of 4 years. The indictment to which the respondent pleaded charged that he and certain other persons conspired to commit the foregoing offense between November 1, 1935, and September 1, 1939, and that the overt acts performed pursuant to the conspiracy occurred between March 3, 1937, and March 8, 1937.
The respondent was admitted under the seventh proviso to section 3 of the Immigration Act of 1917 notwithstanding that he was illiterate. He had been found deportable on August 9, 1938, under the 1924 act on documentary grounds, and voluntary departure and preexamination had been authorized.
Section 1441 of title 26 reads as follows:
Every person who removes, deposits, or conceals or is concerned in removing, depositing, or concealing any goods or commodities for or in respect whereof any tax is imposed, with intent to defraud the United States of such tax or any part thereof, shall be liable to a fine or penalty of not more than $5,000 or be imprisoned for not more than three years or both.
Section 88 of title 18 (Criminal Code, sec. 37) provides that:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000 or imprisoned not more than two years, or both.
We have held on the authority of U.S. ex rel. Berlandi v. Reimer, 113 F. (2d) 429 (C.C.A. 2, 1940) that conspiring to defraud the revenue is a crime involving moral turpitude and that the substantive offense in violation of Section 1441 involves moral turpitude since an intent to defraud is an essential element of the crime ( Matter of C----, 56032/546 (Feb. 1944)).
The respondent's counsel at the original hearing filed exceptions in which it was urged that the warrant charge was not sustained since the crime on which it was based was committed prior to the respondent's last entry while the conviction did not take place until after such entry. The crime of conspiracy is complete upon the performance of an overt act committed by one of the conspirators for the purpose of effecting the object of the conspiracy and it continues so long as any overt acts are committed ( Matter of V----, 55765/240 (June 1943); Matter of C----, 56032/546, supra). The first overt act in the case now under consideration was committed on March 3, 1937, and the last act committed on March 8, 1937. The respondent's last entry occurred on July 20, 1939. Accordingly, we find that the respondent is not subject to deportation on the warrant charge, viz. that he has been sentenced to imprisonment for a term of 1 year or more because of conviction of a crime involving moral turpitude committed within 5 years after entry.
However, the evidence sustains the lodged charge. The crime is one involving moral turpitude and was committed prior to the respondent's last entry, and as stated in the opinion of the Presiding Inspector, within the meaning of the immigration laws a plea of guilty is an admission. Blumen v. Haff, 78 F. (2d) 833 (C.C.A. 9, 1935). At the reopened hearing the respondent admitted that he was guilty of the offense.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Italy;
(2) That the respondent last entered the United States on July 20, 1939, at Detroit, Mich.;
(3) That on March 10, 1941, the respondent was convicted in the District Court of the United States for the Eastern District of Michigan, Southern Division of his plea of guilty of the crime of conspiracy to unlawfully remove, deposit and conceal distilled spirits in respect to which a tax was imposed by the United States with intent to defraud the United States of such tax in violation of title 18, U.S.C., section 88, and title 26, U.S.C., section 1441;
(4) That on account of the foregoing conviction the respondent was sentenced to imprisonment for a term of 4 years;
(5) That the indictment to which the respondent pleaded charged that he and certain other persons conspired to commit the foregoing offense between November 1, 1935, and September 1, 1939, and that the overt acts performed pursuant to the conspiracy occurred between March 3, 1937, and March 8, 1937;
(6) That the respondent admits that he committed the foregoing offense.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation on the ground that he has admitted the commission of a crime involving moral turpitude prior to entry into the United States, to wit: conspiracy to unlawfully remove, deposit and conceal distilled spirits in respect to which a tax was imposed by the United States with intent to defraud the United States of such tax in violation of title 18, U.S.C., section 88 and title 26 U.S.C., section 1441;
(2) That under section 19 of the Immigration Act of 1917, the respondent is not subject to deportation on the ground that he has been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within 5 years after entry, to wit: conspiracy to unlawfully remove, deposit and conceal distilled spirits in respect to which a tax was imposed by the United States with intent to defraud the United States of such tax in violation of Title 18, U.S.C., section 88 and title 26 U.S.C., section 1441;
(3) That under section 20 of the Immigration Act of 1917, the respondent is deportable to Italy at Government expense.Other Factors: The respondent has resided in the United States since 1925. He is married to a citizen of the United States. There is no issue of the marriage. It appears that the respondent's wife is self-supporting. He testified that he is presently employed in the trucking business, earning $60 per week and that he has no assets. He served 25 months of a 4 year sentence and was paroled in March 1943. He was convicted in 1933 and 1937 of other liquor law violations. Since the respondent is deportable under section 19 (d) of the Immigration Act of 1917, as amended, relating to the criminal classes, his deportation is mandatory.
Order: It is ordered that the alien be deported to Italy at Government expense on the following charge:
The Immigration Act of 1917 in that he admits the commission of a crime involving moral turpitude prior to entry into the United States, to wit: conspiracy to unlawfully remove, deposit and conceal distilled spirits in respect to defraud the United States of such tax in violation of title 18, U.S.C., section 88 and title 26, U.S.C., section 1441.