United States v. Bode

• Citation: 204 F.2d 220
• Decision Date: 19 May 1953
• Docket Number: No. 14701.,14701.
• Parties: UNITED STATES ex rel. CARROLLO v. BODE.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

204 F.2d 220 (1953)

UNITED STATES ex rel. CARROLLO v. BODE.

No. 14701.

United States Court of Appeals, Eighth Circuit.

April 28, 1953.

Rehearing Denied May 19, 1953.

James Daleo and Richard P. Shanahan, Kansas City, Mo., for appellant.

Harry F. Murphy, Asst. U. S. Atty., Kansas City, Mo. (Sam M. Wear, U. S. Atty., Kansas City, Mo., on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.

WOODROUGH, Circuit Judge.

This appeal is from a judgment which denied appellant's application for a writ of habeas corpus.

It appeared on the trial that the applicant for the writ entered this country at New Orleans in January, 1906, when he was three years and five months of age and that he has resided here ever since without acquiring United States citizenship. He married a citizen of the United States and six children, five daughters and a son, have been born to the marriage, of whom three daughters are married and a daughter aged 14, the son aged 5 and a daughter aged 4 remain at home.

He was sentenced on October 20, 1939, to four years imprisonment upon his conviction of the crime of perjury, 18 U.S.C. § 231, now 18 U.S.C. § 1621, and on July 7, 1950, he was again sentenced to two years imprisonment upon his conviction on a plea of guilty under the first count of an indictment which charged that he "did * * * feloniously conspire * * * with * * * other persons * * * to commit an offense against and to defraud the United States, * * * by * * * carrying on the business of a wholesale liquor dealer * * * while * * * wilfully failing to pay the special tax required to be paid by wholesale liquor dealers."¹

On September 7, 1950, proceedings were commenced for his deportation under § 19(a) of the Immigration Act of 1917, 8 U.S.C.A. § 155(a), which provides for the deportation of any alien who subsequent to May 1, 1917, is sentenced more than once to imprisonment for one year or more because of conviction in this country of any crime involving moral turpitude committed at any time after entry.² A warrant was issued for his arrest at the commencement of the deportation proceedings and he was accorded a hearing as a result of which it was found that he was subject to deportation and it was ordered that he be deported. He appealed to the Board of Immigration Appeals which rendered decision on December 7, 1951, dismissing the appeal. Warrant-deportation of alien was issued and the application for habeas corpus here involved was filed and a show cause order issued. Return was made to that order and a traverse to the return. The case was tried and resulted in the judgment dismissing the application for the writ here appealed from.

It is not contended for the appellant that the crime of perjury of which he was convicted and for which he was sentenced to imprisonment for more than one year in 1939 was not "a crime involving moral turpitude" within the meaning of 8 U.S.C. A. § 155(a). It is admitted that that crime involved moral turpitude. But the defense before the immigration authorities and ground of the application for the writ of habeas corpus was, and the contention for reversal in this court is, that Carrollo was not "sentenced more than once * * * for a * * * crime involving moral turpitude, committed at any time after his entry" into this country, in that the crime of which he was convicted and for which he was sentenced on July 7, 1950, was not "a crime involving moral turpitude" within the meaning of Section 155(a).

It appeared to the Hearing Officer in the Immigration Service on the hearing of Carrollo's case before him that the contention was settled against Carrollo by the decision of the Supreme Court in Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886, and on the appeal of the case to the Board of Immigration Appeals the Board again considered that supreme court decision in application to the case and arrived at the same conclusion.

The District Court did not write a formal opinion in support of the denial of habeas corpus but its oral comment indicates its approval of the conclusion of the immigration authorities. Our own study of the decision has not shown that the conclusion was erroneous.

The Supreme Court's opinion in the case relied on shows that the alien Sam DeGeorge there involved sought relief by habeas corpus from an order that he be deported for having been more than once sentenced after his entry because of conviction of crimes involving moral turpitude, and it appeared, as stated by the Supreme Court, 341 U.S. 223, 226, 71 S.Ct. 703, 705, that he had "on two separate occasions been convicted of the same crime, conspiracy to defraud the United States of taxes on distilled spirits. Therefore, our inquiry in this case is narrowed to determining whether this particular offense involves moral turpitude." Upon full discussion the court declared, at page 229 of 341 U.S., at page 706 of 71 S.Ct.: "In view of these decisions, it can be concluded that fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude. It is therefore clear, under an unbroken course of judicial decisions, that the crime of conspiring to defraud the United States is a `crime involving moral turpitude'".

In the case at bar it was shown without dispute that the alien herein, Vincenzo Carrollo, in addition to his conviction for perjury after his entry, was on a subsequent occasion convicted on his plea of guilty to the charge that he did "conspire to defraud the United States." He therefore came squarely within the requirement of Section 155(a) as an alien who "shall, upon the warrant of the Attorney General, be taken into custody and deported."

(1) It has been argued here that this case should be distinguished from the DeGeorge case, supra, and a different result reached because this appellant conspired to defraud the United States by violating a different penal statute from the one that DeGeorge conspired to violate. The section which...