Wood v. Hoy, 16124.

• Decision Date: 30 April 1959
• Docket Number: No. 16124.,16124.
• Citation: 266 F.2d 825
• Parties: Edward Charles WOOD, Appellant, v. Richard C. HOY, District Director, Immigration and Naturalization Service, United States Department of Justice, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

266 F.2d 825 (1959)

Edward Charles WOOD, Appellant, v. Richard C. HOY, District Director, Immigration and Naturalization Service, United States Department of Justice, Appellee.

No. 16124.

United States Court of Appeals Ninth Circuit.

April 30, 1959.

Hiram W. Kwan, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Arline Martin, Richard A. Lavine, Los Angeles, Cal., for appellee.

Before BARNES, HAMLEY and HAMLIN, Circuit Judges.

HAMLIN, Circuit Judge.

Appellant, Edward Charles Wood, here appeals from a judgment of the United States District Court for the Southern District of California upholding a deportation order entered against him by the Immigration and Naturalization Service.

The District Court had jurisdiction under 5 U.S.C.A. § 1009 and 28 U.S.C. § 2201. Jurisdiction of this court rests on 28 U.S.C. § 1291 and § 1294(1).

At the hearing before the Immigration and Naturalization Service on August 19, 1957, Wood was found deportable under § 241(a) (4) of the Immigration and Nationality Act (8 U.S.C.A. § 1251(a) (4)).

§ 1251, in setting forth the classes of deportable aliens, provides as follows:

"(a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who —

* * * * * *

"(4) is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more, or who at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial;" * * *

After exhausting his administrative remedies, Wood filed his complaint in the District Court on December 9, 1957, seeking to set aside the deportation order.

At the time of filing his complaint, appellant was a 21-year old native and citizen of Canada and had resided continuously in the United States since January 13, 1954. On that date appellant had been admitted to the United States as an immigrant for permanent residence with his parents, brother and sister.

In July, 1957, appellant was convicted in the Superior Court of California of two counts of robbery of the first degree, West's Ann.Cal.Penal Code § 211. The facts surrounding these convictions, as disclosed in the meager record, are these: Count I, On July 13, 1956, appellant and three others robbed a liquor store and took from one Rosenburg $1,100; Count II, On July 16, 1956, appellant and the same three others robbed a drive-in theatre and took from one Charlotte $300.

The Information states that at the time of the commission of the above offenses the defendants (referring to all four participants) were armed with deadly weapons, to-wit, two .45 revolvers. Appellant was sentenced for the term prescribed by law, sentence was suspended, and appellant placed on probation for five years. A condition of probation was that Wood make restitution and spend six months in the county jail.

Appellant assigns two specifications of error on his appeal to this court:

1. That the District Court erred in entering judgment against the appellant upon his petition for review in that he was not "convicted" within the purview of § 1251(a) (4); and

2. That the District Court erred in that it was not established that the two crimes did not arise "out of a single scheme of criminal misconduct."

We deal with these two issues, in order, below.

Appellant contends that because his sentence was suspended and he was placed on probation, he should not be considered "convicted" as that word is used in § 1251(a) (4).

§ 1251(a) (4) subjects to deportation an alien "who * * * is convicted * * * regardless of whether confined therefor * * *."

It is clear that appellant's position finds no support in the statute itself. Appellant, however, relies on two cases: Pino v. Landon, 1955, 349 U.S. 901, 75 S.Ct. 576, 99 L.Ed. 1239, where the Supreme Court, in a per curiam opinion, reversed a deportation order with the remark that —

"On the record here we are unable to say that the conviction has attained such finality as to support an order of deportation within the contemplation of § 241 of the Immigration and Nationality Act."

and Holzapfel v. Wyrsch, 3 Cir., 1958, 259 F.2d 890, 892, where a conviction under a New Jersey statute held to be "directed primarily at rehabilitation and cure of persons found to require medical treatment" was found not to render an alien deportable under § 1251 (a) (4).

Appellant's reliance on the above cases is misplaced. In Holzapfel, supra, the Third Circuit specifically distinguished that case from their earlier opinion (United States v. Garfinkel), which had passed on the very point urged by appellant here. In United States ex rel. Fells v. Garfinkel, D.C.Pa., 1957, 158 F.Supp. 524, affirmed, per curiam, Third Circuit, 1958, in 251 F.2d 846, it was held that a suspended sentence was encompassed within § 1251(a) (4).

Holzapfel, as that opinion makes clear, rests on the rehabilitative nature of the statute there involved.

Though Pino v. Landon, supra, casts some doubt on the meaning of "convicted" as used in § 241(a) (4) of the Act, it is clear that in the instant case any interpretation of that word that would result in holding Wood not "convicted" would render the 1952 change in the Immigration and Nationality Act nugatory.

The 1952 change in the Act defined a deportable alien in terms specifically not requiring the service of a sentence. If Congress had meant to restrict the applicability of the Act to only those aliens who are convicted and required to serve a sentence, it could have said so very easily. The predecessor statute (8 U.S.C. § 155) did require the serving of a sentence. Fong Haw Tan v. Phelan, 1948, 333 U.S. 6, 68 S.Ct. 374, 92 L.Ed. 433; Jordan v. De George, 1951, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886. The fact that this provision of the Act was deleted indicates that it is not a requirement.

In the instant case Wood was convicted, sentenced, sentence was suspended and he was placed on probation. Appellant argues that West's Ann.Cal.Penal Code, § 1203.1 grants continuing jurisdiction over the probationer, and thus that the conviction is not a final order within the Pino v. Landon case.

That § 1203.1 grants continuing jurisdiction over the probationer is true to the extent that any violation of parole may result in reimposition of the sentence.

§ 1203.4 of the West's Ann.California Penal Code provides for the release from all penalties and disabilities resulting from the crime for which a probationer was convicted. This section may be utilized by a probationer whose sentence was suspended and who satisfies the conditions of his probation. § 1203.4 further provides —

"* * * that in any subsequent prosecution of such defendant for any other offense, such prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed."

Thus, though the conviction is perhaps not "final" for all purposes, in any subsequent prosecution it may still be pleaded as a prior conviction even after it has been expunged.

Because California courts retain some control over the final disposition of a probationer's criminal record, it does not follow that such control precludes a finding that the probationer was "convicted" by that court. In Arrellano-Flores v. Hoy, 9 Cir., 1958, 262 F.2d 667, this court recently answered the identical contention Wood makes in the instant case. Appellant there contended that because the California court, after a finding of guilt, suspended sentence and granted probation, he was not deportable under § 1251(a) (11) of the Immigration and Nationality Act. We held there, and we reaffirm here, that a conviction in California followed by a suspended sentence and placement on probation remains a "conviction" within the meaning of the Immigration and Nationality Act of 1952.

Pino v. Landon, supra, must be construed in the light of the fact as developed in the First Circuit's opinion (sub nom. Pino v. Nicolls) upholding the deportation order.¹ The per curiam Supreme Court opinion reversing that deportation order did not set forth any test to determine what "finality of conviction" is required by the relevant section of the Act. In our opinion, Pino v. Landon is inapposite to the instant case.

Appellant next contends that the two crimes of robbery committed on July 13 and July 16 arose out of a single scheme of criminal misconduct.

§ 1251(a) (4), as here pertinent, provides that an alien is deportable if "convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct." emphasis supplied. This clause was added by the 1952 Act.

The Act does not define what is a "single scheme of criminal misconduct." Nor does the legislative history shed any light on what was the intent of Congress in drafting this provision.²

There are three relevant cases that apply the "not arising out of a single scheme of criminal misconduct" provision of § 1251(a) (4).

Fitzgerald ex rel. Miceli v. Landon, 1 Cir., 1956, 238 F.2d 864. Petitioner there had been convicted of (1) an indecent assault on a child; and (2) being "a lewd, wanton and lascivious person" during the three months "next preceding" the criminal assault set out in the first complaint. The First Circuit, after examining the elements of each, held that the two crimes were separate and did not arise out of a single scheme of criminal misconduct. There had been no showing that petitioner had sought and been denied an opportunity to present evidence to the District Court, nor did the District Court have the record of administrative proceedings before it. The Court said that from the meager record it had no reason to believe that petitione...