Pacheco v. Immigration and Naturalization Service, 76-1203

• Decision Date: 15 November 1976
• Docket Number: No. 76-1203,76-1203
• Parties: Cesar Nicolau PACHECO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 448

546 F.2d 448

Cesar Nicolau PACHECO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 76-1203.

United States Court of Appeals First Circuit.

Nov. 15, 1976.

Thomas R. Barbieri, Lawrence, Mass., for petitioner.

Richard I. Chaifetz, Atty., Dept. of Justice, Washington, D.C., with whom Philip Wilens, Chief, Government Regulations and Labor Section, Crim. Div., and James P. Morris, Atty., Dept. of Justice, Washington, D.C., were on brief, for respondent.

Before COFFIN, Chief Judge, CLARK, ^* Associate Justice, U.S. Supreme Court (Ret.), and McENTEE, Circuit Judge.

COFFIN, Chief Judge.

Petitioner seeks review of an order of the Board of Immigration Appeals dismissing his appeal from the deportation order of an Immigration Judge. Petitioner in a single state trial had been convicted under two separate indictments of breaking and entering in the nighttime with intent to commit larceny. One indictment charged an August 4, 1974 entry into a restaurant; the second charged an August 6, 1974 entry into a church. Because of these two convictions for crimes of moral turpitude, the Immigration and Naturalization Service sought petitioner's deportation under 8 U.S.C. § 1251(a)(4). ¹

Petitioner asserts that both break-ins and two additional ones on August 6 were the result of a prolonged period of drunkenness spanning both dates; that the shortness of the time period, the fact that his companions in all the enterprises were the same, the homogeneity of the technique (opening an unlocked door), and the continuity of his drunkenness render this a "single scheme" under the statute or at least demonstrate, on this record, that there was no substantial evidence to support a finding of a single scheme and that the prosecution failed to sustain its burden of proof.

Petitioner is 26 years of age, and a citizen of Portugal. His parents and all siblings live in this country except a married sister who lives in Portugal. Apart from the escapades in issue here, for which he served five months in prison, his criminal record is barren. The Immigration Judge, acknowledging that the "result is drastic", nevertheless felt compelled to order deportation.

We are aware of the canon which requires doubts in the construction of a statute to be resolved in favor of the alien. Barber v. Gonzales, 347 U.S. 637, 74 S.Ct. 822, 98 L.Ed. 1009 (1954); Fong Haw Tan v. Phelan, 333 U.S. 6, 68 S.Ct. 374, 92 L.Ed. 433 (1948). We are also mindful that the words "single scheme" contain less precision than meets the eye. ² A scheme could be as ambitious and enduring as those of Ponzi or Insull. The legislative history, while atmospheric, sheds no light on § 1251(a)(4); all we can say is that it was part of the Immigration and Nationality Act of 1952, which was looked on generally as more restrictive than prior legislation. ³ See Costello v. Immigration and Naturalization Service, 311 F.2d 343, 348 (2d Cir. 1962), rev'd on other grounds, 376 U.S. 120, 84 S.Ct. 580, 11 L.Ed.2d 559 (1964).

It comes as no surprise to learn that the courts have run with this ball in various directions. Ours was the first to speak in Fitzgerald ex rel. Miceli v. Landon, 238 F.2d 864 (1st Cir. 1956). An alien had been convicted in a single trial of indecent assault on a child and of being, for some time prior to the assault, "a lewd, wanton and lascivious person". We observed:

"When the Congress provided for the deportation of aliens who at any time after entry had been convicted of two crimes involving moral turpitude 'not arising out of a single scheme of criminal misconduct,' the Congress evidently had in mind that a criminal, while engaged in a single criminal enterprise, might be guilty of two or more distinct offenses. . . . Thus one engaged in a single scheme of robbing a bank may be guilty of the offense of robbery, and also of the offense of inflicting a criminal battery upon a bank official. Though he might be convicted of both of these offenses, it was not the intention of Congress that he should be deported on this ground alone." 238 F.2d at 865-66.

We rejected the opinion of a state trial judge and the Chief of Police that the acts arose out of a single scheme, saying, "For all we know, the state judge and the Chief of Police might have thought that, if Miceli was guilty of repeated acts of indecent assault against young girls, in which he employed the same technique and pattern of conduct, the several separate offenses would arise 'out of a single scheme of criminal misconduct' . . .. This of course would not be so." Id. at 867.

Subsequent cases have obviously not deemed Miceli controlling. It is small wonder that the courts have been tempted to soften the harshness of the requirement by treating "single scheme" as an elastic concept. In the process "justice" was often done, although attempts to articulate on all-purpose definition were less successful. In the early case of Jeronimo v. Murff, 157 F.Supp. 808 (S.D.N.Y.1957), petitioner was charged with larceny, bribery, and conspiracy to defraud a municipality by making false claims for labor and materials. Substantive counts alleged the making of such claims over four time periods within a span of two years. Decision was helped by the fact that the indictment itself alleged that all acts were part of a common scheme. The court, however, did not rest on this point. While acknowledging that several crimes committed "at or about one time as the result of the same criminal impulse or on one occasion in the course of the same transaction or episode" would be probative of a single scheme, 157 F.Supp. at 815, it set forth other factors which could also be probative: "initial formulation of the same subsisting fundamental object and purpose . . . utilization of precisely the same methods and procedures . . . continuously interacting relationship and activities of the same persons . . . (and) victimizing of the same person." Id. This formulation would not help petitioner, but would insulate an organized group which planned and executed a series of robberies of the branches of a large bank.

A second case, lacking a blanketing "common scheme" indictment but presenting a sympathetic case, was Zito v. Moutal, 174 F.Supp. 531 (N.D.Ill.1959). In that case the government sought to deport an alien of 36 years' residence for having pleaded guilty 16 years earlier to two counts of removing and concealing two lots of alcohol with intent to defraud the United States of taxes, one such concealment taking place on or about September 9, 1940, the other on September 18, 1940. The court held the violations to be but a single scheme. Whether the court would have taken the same view toward one who had sold and distributed heroin periodically during a year or so may be doubted. A similar case is Barrese v. Ryan, 203 F.Supp. 880 (D.Conn.1962), where petitioner was prosecuted for carrying on the business of selling liquor in his restaurant without having paid a $25 federal occupational tax for two successive years. The violations, while technically crimes of moral turpitude, may well have been deemed not to justify deportation. But it becomes difficult to call two failures to pay such a tax a single scheme and not apply the same approach to a major underworld figure who was convicted of wilful income tax evasion in successive years. Costello v. Immigration and Naturalization Service, supra, 311 F.2d at 343. See also Chanan Din Khan v. Barber, 253 F.2d 547 (9th Cir.), cert. denied, 357 U.S. 920, 78 S.Ct. 1361, 2 L.Ed.2d 1364 (1958).

From consecutive tax violations it is a small step to more robust crimes. An early case is Wood v. Hoy, 266 F.2d 825 (9th Cir. 1959), where four armed men robbed a liquor store and, three days later, a drive-in theater. The key figure was an ex-convict; petitioner was only twenty years old at the time. The court observed that the crimes were both robbery of the first degree, that they were committed within three days of each other by the same four persons, and particularly that the crimes had been planned several weeks in advance. It held that the Special Inquiry Officer had paid no attention to the requirement that the crimes be proven not to have arisen from a single scheme and remanded for further findings. A similar case arose in the third circuit, Sawkow v. Immigration and Naturalization Service, 314 F.2d 34 (3d Cir. 1963). There, auto thefts had been committed on two successive days. The court held these to be a single scheme, observing that the thefts, so far as the record disclosed, might have taken place "within a few minutes of each other". Id. at 38.

Finally, Nason v. Immigration and Naturalization Service, 394 F.2d 223 (2d Cir.), cert. denied, 393 U.S. 830, 89 S.Ct. 98, 21 L.Ed.2d 101 (1968), was a much clearer case in terms of the lapse of time between crimes. Petitioner had engaged in two periods of mail fraud activity, separated by an interval of nine months. The court, while accepting the view that a single scheme "is not so narrow...