Zito v. Moutal
| Decision Date | 31 March 1959 |
| Docket Number | No. 59 C 112.,59 C 112. |
| Citation | 174 F. Supp. 531 |
| Parties | Antonio ZITO v. Monte MOUTAL, Acting District Director, United States Immigration and Naturalization Service, Chicago, Illinois. |
| Court | U.S. District Court — Northern District of Illinois |
Frank R. Petrone, Chicago, Ill., for plaintiff.
R. Tieken, U. S. Atty., Chicago, Ill., for defendant.
This is an action to review an order of deportation in which the plaintiff seeks the following relief: (1) a declaration that he is not a deportable alien under the provisions of 8 U.S.C.A. § 1251(a) (4); (2) a declaration that an order for the deportation of plaintiff is null and void; and (3) a mandatory injunction to compel the defendant to present for hearing plaintiff's petition for naturalization. The cause was originally before this court on plaintiff's motion for a preliminary injunction. Upon the defendant's assurance to the court that the plaintiff would not be deported immediately, a decision on the motion was held in abeyance pending the filing of cross-motions for summary judgment. These motions have now been filed, and, for the reasons which follow, I am of the opinion that plaintiff's motion for summary judgment must be granted.
There is no dispute as to the material facts in this case. Plaintiff is an alien who has lived in the United States for approximately 36 years. In 1941 he pleaded guilty to a twelve count indictment which charged conspiracy and eleven substantive violations of the Internal Revenue Act of 1939, 26 U.S.C.A. § 1 et seq., pertaining to distilled spirits. He was sentenced to imprisonment for eight years and fined $12,000. In 1944 plaintiff was released on parole and in 1949 he was discharged from parole.
On October 21, 1954, plaintiff filed with the United States Immigration and Naturalization Service (hereafter "Service") an application to file a petition for naturalization. At that time, and twice thereafter, he informed the Service of his criminal record. After examination, plaintiff's application was granted and, on September 25, 1956, plaintiff filed a petition for naturalization in the United States District Court for the Southern District of Illinois. The petition is still pending in that court.
Thereafter, a hearing was held before a Special Inquiry Officer. In support of the Service's claim that the plaintiff had been convicted of two offenses not arising out of a single scheme of criminal misconduct, the Examining Officer introduced into evidence a certified copy of the indictment, judgment and commitment. The Service then rested its case. Thereupon, the plaintiff rested his case without presentation of evidence. The remainder of the hearing was devoted to plaintiff's application for discretionary suspension of deportation. After the hearing, the Special Inquiry Officer, in a written opinion, found that the plaintiff had been convicted of two offenses not arising out of a single scheme of criminal misconduct. He denied plaintiff's application for discretionary relief and ordered that the plaintiff be deported. Plaintiff appealed, and the Board of Immigration Appeals (hereafter "Board") sustained the order.
In his complaint, plaintiff asserts that he is not deportable because (1) count six of the indictment did not allege an offense; (2) assuming that count six did allege an offense, that offense and the one alleged in count eleven arose out of a single scheme of criminal misconduct; and (3) he did not receive a full and fair hearing on his application for discretionary suspension of deportation. With regard to this last reason, plaintiff contends that the decisions of the Special Inquiry Officer and the Board are ambiguous in that it cannot be determined whether the basis for denial of relief was statutory ineligibility or exercise of discretion. Plaintiff states that he will file with the Board a motion for reconsideration and clarification of the opinions. Accordingly, I conclude that the issue of full and fair hearing is not before the court at this time and it will not be considered further in this memorandum.
It has already been noted that this case is presented to the court on cross-motions for summary judgment. In his motion and in the briefs submitted in support thereof, plaintiff does not reiterate the assertion that count six is fatally defective. He argues only that the offenses upon which the order of deportation was based arose out of a single scheme of criminal misconduct. In order fully to evaluate this argument, it is necessary to set out the substance of the entire indictment:
Number of Section of
Date of Substance Gallons I.R.C. 1939
Count Offense of Offense of Alcohol Violated
1 Sept. 18, 1940 Unlawful Possession 200 2803(a)
2 Same Same 20 2803(a)
3 Same Removal to Place 200 2913
Other Than Bonded
Warehouse
4 Same Concealment of 200 2913
Spirits Unlawfully
Removed
5 Same Same 20 2913
6 Sept. 18, 1940 Removal, Deposit & 200 3321
Concealment with Intent
to Defraud
7 July 15, 1940* Unlawful Possession 50* 2803(a)
8 Aug. 15, 1940* Same 50* 2803(a)
9 Sept. 9, 1940* Unlawful Transportation 50* 2803(a)
10 Same* Same 50* 2803(a)
11 Same* Removal, Deposit & 50* 3321
Concealment with Intent
to Defraud
12 Conspiracy
Count twelve alleges that the defendant and others, from April 1, 1938, to the date of the presentment, engaged in a continuing conspiracy to commit "divers" offenses: the "several" offenses alleged in counts one through eleven and other similar offenses. Count twelve alleges twenty overt acts which were done "* * * in pursuance of, in furtherance of, and to effect the objects and purposes of said * * * conspiracy * * *." Overt acts number 1, 2, 3, 4, 5 and 13 refer to the date and place alleged in count six of the indictment; acts number 4 and 14 refer to the date and place alleged in count eleven; and act number 11 refers to the date alleged in count eleven.
Two issues are presented to the court: (1) what is the correct interpretation of the phrase "not arising out of a single scheme of criminal misconduct" contained in 8 U.S.C.A. § 1251(a) (4); and (2) is the order of deportation based on reasonable, substantial and probative evidence?
Interpretation of Section 1251(a) (4)
Emphasizing the fact that count twelve alleges a conspiracy to commit the offenses alleged in counts six and eleven, plaintiff contends that these offenses arose out of the scheme or conspiracy and, therefore, that they arose out of a single scheme of criminal misconduct. In support of this contention, plaintiff cites numerous conspiracy cases which do not involve deportation. In addition, plaintiff relies upon Jeronimo v. Murff, D.C.S.D.N.Y.1957, 157 F.Supp. 808. In the Jeronimo case, the issue was whether the plaintiff had been convicted of two offenses not arising out of a single scheme of criminal misconduct. It was undisputed that he had been found guilty of five counts of grand larceny and one count of conspiracy to commit grand larceny. The conspiracy was alleged to have existed continuously from March 1, 1947, to January 7, 1949. The conspiracy consisted of a scheme to defraud the city of New York by making fraudulent claims for payment for labor and materials furnished to New York pursuant to certain contracts. The date of each larceny was within the period charged in the conspiracy count and it was clear that the larcenies were integral parts of the conspiracy. Further, it was alleged in the conspiracy count that the larcenies were connected together and constituted part of a common scheme and plan. In light of these facts, the court held that the larcenies (which were relied upon as a basis for deportation) arose out of a single continuing criminal enterprise and that there was no substantial evidence to support the Board's conclusion that the larcenies arose out of...
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...v. Barber, 9 Cir., 1956, 231 F.2d 524. 8 Jeronimo v. Murff, S.D.N.Y., 1957, 157 F.Supp. 808, 813; Zito v. Moutal, D.C.Ill., 1959, 174 F.Supp. 531, 535; Barrese v. Ryan, D.C.Conn., 1962, 203 F.Supp. 880, 884. See also Wood v. Hoy, 9 Cir., 1959, 266 F.2d 825, ...
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