Hirsch v. Immigration and Naturalization Service

• Decision Date: 10 September 1962
• Docket Number: No. 17666.,17666.
• Citation: 308 F.2d 562
• Parties: Bernard HIRSCH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

308 F.2d 562 (1962)

Bernard HIRSCH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 17666.

United States Court of Appeals Ninth Circuit.

September 10, 1962.

Maynard J. Omerberg, Hollywood, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Donald A. Fareed, Asst. U. S. Atty., Chief of Civil Division, and Gordon Levy, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before MERRILL and DUNIWAY, Circuit Judges, TAVARES, District Judge.

DUNIWAY, Circuit Judge.

Petition to review an order of deportation, the matter having been transferred to this Court pursuant to § 5(b), Pub.L. 87-301, 75 Stat. 651. (See 8 U.S.C.A. § 1105a.)¹

The alien entered this country, lawfully, on February 9, 1946, following a temporary absence of about two weeks. His original entry, as an immigrant, was on January 8, 1941. On March 12, 1952, a warrant of arrest was issued, containing the following charge:

"violation of the Act of Feb. 5, 1917, in that on or after May 1, 1917, he has been sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude committed within five years after entry, to wit: Conspiracy to make false and fraudulent statements to a U. S. Government Agency Title 18 USC 80."²

The arrest was made pursuant to former 8 U.S.C.A. § 155(a) (now 8 U.S.C.A. § 1251(a) (4)), which provides: "any alien who, after May 1, 1917, is sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after * * * entry * * * shall * * * be * * * deported". (Act of Feb. 5, 1917, c. 29, sect. 19, 39 Stat. 889.)

A hearing was had on May 21, 1952, at which the warrant was marked as an exhibit. Petitioner was present with counsel. In support of the charge, the following documents were received:

Item 1. A judgment of the United States District Court, Eastern District of New York, case No. Cr-42116, dated April 6, 1950 showing plea of guilty to the charge

"of violating Title 18, U.S.C., Section 80, in that on or about March 12, 1948, in the Eastern District of New York, defendant did with certain others knowingly and wilfully make and cause to be made false & fraudulent statements & representations in a matter within the jurisdiction of a department and agency of the United States, as charged in Count 4."

It also shows sentence of 18 months and fine of $2500, and dismissal of Counts 1, 2, 3, 5, 6, thus indicating that it is based upon a six-count indictment. The indictment, however, is not in the record.

Item 2. An indictment returned to the United States District Court, Southern District of New York, Case C 128/376 in eight counts, charging only violations of Title 49, Section 121, United States Code. There is also a judgment of conviction on a plea of guilty to all eight counts, dated June 27, 1950, showing sentence of one year and one day on each, concurrent, to follow sentence in Item 1.

Item 3. A one-Count indictment returned to the United States District Court for the Southern District of New York, Case No. C 128/377, making the following charge:

"On or about the 29th day of March, 1948, at the Southern District of New York, BERNARD D. HIRSCH and GIULIO HIRSCH, the defendants, unlawfully, wilfully and knowingly did make and cause to be made, in a matter within the jurisdiction of the Bureau of Customs of the United States Treasury Department, to wit, the export of merchandise, false and fraudulent statements in a `Shipper\'s Export Declaration\' to the effect that the goods being exported consisted of 7 cases of calcium chloride under Schedule B, Commodity No. 8343.00, with a value of $4,000; whereas, in truth and in fact, as the defendants then and there well knew the said goods consisted of 7 cases of streptomycin under Schedule B, Commodity No. 8135.75, with a value in excess of $100.

(Title 18, Section 80, United States Code)"

There is also a judgment upon plea of guilty to this indictment, dated June 27, 1950, with sentence of one year and one day, concurrent with those in Cases C 128/376 (Item 2) and C 128/378 (Item 4), but to follow sentence in Item 1.

Item 4. A judgment of the United States District Court, Southern District of New York, Case No. C 128/378, dated June 27, 1950, on plea of guilty to the offense of "exporting streptomycin in excess of $100 without an export license. Title 50 App. Sec. 701 U.S.Code". Sentence is one year and one day, concurrent with those in Cases C 128/376 and C 128/377, to follow that in Item 1. There is no copy of the indictment in the record.

No objection was made to the receipt of any of these records: Petitioner actually served six months of his sentence in Case Cr-42116, Eastern District, (Item 1) and four months of the concurrent sentences in the three cases in the Southern District. His counsel offered to show certain facts as to the offenses, for the purpose of showing that there was no "moral turpitude", as required by the statute. The evidence was excluded, on the ground that it was not proper "to go behind the indictment". The ruling was correct, although the reason was not. It is proper to consider the indictment, plea, verdict and sentence, but not extrinsic evidence. (Tseung Chu v. Cornell, 9 Cir., 1957, 247 F.2d 929, 935-936; Bisaillon v. Hogan, 9 Cir., 1958, 257 F.2d 435.)

On June 10, 1952 the hearing officer made an order, reading in part as follows:

"During the course of the hearing there was received in evidence certified conviction records establishing that the respondent had been convicted within five years after entry in the United States District Court for violation of Section 80, Title 18, U.S.Code for knowingly and willfully making and causing to be made false and fraudulent statements and representations in a matter within a District sic of a Department and Agency of the United States for which he was sentenced to imprisonment for a term of one year or more.

"It is ordered that the hearing be re-opened for the purpose of lodging against the respondent an additional charge consistent with the evidence adduced."

A further hearing was had on July 10, 1952, at which the hearing officer said:

"In addition to the charge contained in the warrant of arrest, which charge I explained to you during the course of the hearing on May 21, 1952, I am lodging against you the charge that you have been found in the United States in violation of the Immigration Act of February 5, 1917 in that on or after May 1, 1917 you have been sentenced to imprisonment for a term of one year or more because of a conviction in this country of a crime involving moral turpitude committed within five years after entry; to wit: making false and fraudulent statements to an agency of the United States Government in violation of Section 80, Title 18, United States Code."

It will be noted that the original charge was that petitioner had conspired to violate Section 80, while the new charge left out the element of conspiracy. This is consistent with the record (Items 1 and 3). The procedure followed that prescribed by former 8 C.F.R. § 151.2(d) (Nov. 10, 1950, 1949 ed., 1951 Supp.) and now required by 8 C.F.R. § 242.53(1) regarding additional charges. It was never charged, either in the warrant or later, that petitioner had violated 49 U.S. C.A. § 121 or 50 U.S.C.A.Appendix, § 701.^*

Again, counsel was present and no objection was made. The offer of proof, made by petitioner at the first hearing, was renewed, and a motion to dismiss was made, on the ground "that the offenses on which he was convicted do not, in the light of all the circumstances, constitute crimes involving moral turpitude within the intent and meaning of the Immigration Act of February 5, 1917". This was denied.

The hearing officer found that petitioner was twice convicted of violation of Title 18 U.S.C. § 80, once in the Eastern District of New York (Case No. Cr-42116, Item 1, supra) and once in the Southern District (Case No. C 128/377, Item 3, supra). He made no finding as to the other two cases (C 128/376, Item 2 and C 128/378, Item 4, supra). He concluded that violation of 18 U.S.C. § 80 is a crime involving moral turpitude, and entered an order of deportation.

Petitioner appealed to the Board of Immigration Appeals, which affirmed. The opinion of the Board is quite extraordinary. It states that Count 4 in the case in the Eastern District of New York (No. Cr-42116, Item 1, supra) charges uttering a falsely altered bill of lading, in violation of § 121 of 49 U.S.C.A. This is not correct. The indictment in case No. Cr-42116 is not even in evidence. It then refers to the judgment in Case No. C 128/376 (Item 2, supra) in the Southern District of New York, but incorrectly states that the indictment in Case No. C 128/377 (Item 3, supra), in the same District, is the foundation for the judgment in No. C 128/376. Yet the judgment in No. C 128/376 refers to an eight-count indictment, while the indictment in Case No. C 128/377 has only a single count. No reference is made to Case No. C 128/378 (Item 4, supra).

From this bit of utter confusion, the opinion deduces the conclusion that the question is whether a violation of 18 U.S.C. § 80 is an offense making petitioner deportable, but adds that "the conviction also referred to 49 U.S.C.A. § 121 in an effort to make the offense more specific." Which conviction? Not Case No. C 42116 (Item 1, supra). The record in that case shows that it dealt only with 18 U.S.C. § 80, and not at all with 49 U.S.C.A. § 121. Not Case No. C 128/376 (Item 2, supra). The record in that case shows that it dealt only with 49 U.S.C.A. § 121, and not at all with 18 U.S.C. § 80. Not Case No. C 128/377 (Item 3, supra). That case refers only to 18 U.S.C. § 80, and not at all to 49 U.S.C.A. § 121. Not Case No. C 128/378 (Item 4, supra). So far as appears, the Board did not consider it at all, and in any event, it refers...