is now serving his sentence in the Federal Correctional Institution, Danbury, Conn.

A preliminary question of jurisdiction will be first disposed of. When the warrant of arrest was issued on May 30, 1940, and served on June 9, 1941, the respondent was not deportable on the lodged charge, since he was not sentenced until February 1943. The warrant charge, however, was then valid. At the time the additional charge was lodged in May 1943, the respondent was legally in the custody of the Immigration and Naturalization Service. A valid basis then existed for the lodging of this charge. The respondent was then given adequate notice as to the new ground of deportation and the requirements of a fair hearing were thereafter observed. See United States ex rel Boric v. Marshall, 4 F. Supp. 965.

The statute which the respondent was charged with violating and of which he was convicted, section 88, title 18, U. S. C., reads:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both.

This offense is consummated when the agreement is made and one overt act is committed by one of the conspirators for the purpose of effecting the object of the conspiracy. United States v. Falcone, 311 U. S. 205. The indictment charges that the defendants, including the respondent, conspired together from January 1, 1934, up to and including the time when the indictment was filed on February 20, 1942. The first overt act set forth in the indictment is alleged to have been committed in April 1936. The respondent was convicted on his plea of guilty and the averments in the indictment must be accepted in these proceedings as revealing the accurate facts. The crime of which the respondent was convicted was thus initially committed in April 1936. He, however, did not enter the United States until March 1938. The lodged charge cannot be sustained unless the crime was committed within 5 years after entry.

The first overt act alleged to have been committed by the respondent in furtherance of the conspiracy occurred in February 1939. Though the respondent joined the conspiracy and participated therein after its initial formation, he is, nevertheless, equally guilty and liable with the originators. United States v. Wilson, 23 F. (2d) 112. Each participator in the conspiracy is the agent of the other. When the respondent joined the conspiracy, he thereby ratified the prior acts of his coconspirators. See 12 C. J. 578, 579. Thus from a strictly legal point of view it appears that the respondent was guilty of the conspiracy charge when it was first committed in 1936.

From the foregoing it seems clear that the offense of which the respondent was convicted was committed long before his arrival in the United States. But it must be remembered that conspiracy is a continuing crime. "[It] is a partnership in criminal purposes. That as such it may have continuation in time is shown by the rule that an overt act of one partner may be the act of all without any new agreement specifically directed to that end." United States v. Kissel, 218 U. S. 601, 607. Just as long as there are overt acts committed in furtherance of the conspiracy, the offense denounced by section 88, title 18, U. S. C., is being committed. See United States v. Perlstein, 126 F. (2d) 789; United States v. Wilson, supra; Nyquist v. United States, 2 F. (2d) 504. We conclude that the crime of which the respondent was convicted was committed within 5 years after his entry. Section 88, title 18, U. S. C., deals with conspiracy to defraud the United States and with conspiracy to commit any offense against the United States. The respondent was here convicted of conspiracy to defraud and more specifically to defraud the Government of taxes payable upon distilled spirits. Crimes involving fraud are ordinarily considered as involving moral turpitude. Ponzi v. Ward, 7 F. Supp. 736. And in particular the crime now at issue has been specifically held to involve such conduct. United States ex rel. Berlandi v. Reimer, 113 F. (2d) 429. The respondent is deportable on the lodged charge.

Findings of Fact: Upon the basis of all the evidence presented, it is found:

(1) That the respondent is an alien, a native and citizen of Italy; (2) That the respondent last entered the United States at the port of New York on March 31, 1938, and was then admitted for a period of 4 months;

(3) That the respondent has remained in the United States for a longer period than 4 months;

(4) That the respondent on February 4, 1943, was sentenced to imprisonment in the Federal Correctional Institution at Danbury, Conn., for a term of 15 months because of his conviction of the crime of conspiracy to defraud the United States in violation of section 88, title 18, U. S. C., the said crime having been committed within 5 years after entry.

Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:

(1) That under sections 14 and 15 of the Immigration Act of 1924 the respondent is subject to deportation on the ground that he has remained in the United States for a longer time than permitted under said act or regulations made thereunder; (2) That under section 19 of the act of February 5, 1917, the respondent is subject to deportation on the ground that subse

quent to May 1, 1917, he has been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within 5 years after entry, to wit: Conspiracy to defraud the United States in violation of section 88, title 18, U. S. C.;

(3) That under section 20 of the act of February 5, 1917, the respondent is deportable to Italy at Government expense.

Other Factors: All of the respondent's close family ties are in Italy. There is nobody in this country who is in any way dependent upon him. Apparently at the termination of the respondent's present term of imprisonment, he will have to face a charge of third degree burglary.

Order: It is ordered that the alien be deported to Italy at Government expense, on the charge contained in the warrant of arrest and on the following further charge:

That he is in the United States in violation of the act of February 5, 1917, in that on or after May 1, 1917, he has been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within 5 years after entry, to wit: Conspiracy to defraud the United States in violation of section 88, title 18, U. S. C.

It is further ordered, That execution of warrant be deferred until alien is released from imprisonment.

IN THE MATTER OF R

In DEPORTATION Proceedings

56124/495

Decided by the Board February 23, 1944

Prostitution-Practice thereof-Employment at resort habitually frequented by prostitutes or where prostitutes gather-Evidence.

1. A single immoral act for gain under circumstances showing prostitution is not pursued as a business or vocation by a person, who relies on her employment as a waitress for a living, will not sustain a deportation charge that she has been found practicing prostitution after entry into the United States, in violation of section 19 of the Immigration Act of 1917.

2. An affirmative answer by an alien to the question of whether certain places where she was employed for a time were houses of ill repute where prostitutes gather to ply their trade of illicit relations with men, is a conclusion of both law and fact, and when not supported by any facts, has no probative value. CHARGES:

Warrant: Act of 1917-Found practicing prostitution after entry;

Act of 1917-Found employed at resort habitually frequented by prostitutes, or where prostitutes gather.

BEFORE THE BOARD

Discussion: After a hearing the Presiding Inspector found the respondent deportable on the second charge stated above and recommended her deportation. The Central Office of the Immigration and Naturalization Service feels that neither charge has been sustained and recommends that the warrant of arrest be cancelled.

The respondent is a 38-year old native and citizen of Mexico who last entered the United States at Laredo, Tex. on April 4, 1913. The evidence, which both the Presiding Inspector and the Central Office of the Immigration and Naturalization Service feel does not sustain the charge that the respondent has been found practicing prostitution subsequent to entry, consists of her admissions that on three occasions in 1942 she had had intercourse with three different men. These incidents took place over a period of not longer than 2 weeks and occurred while she was employed at about $5 weekly as a waitress in a cafe in Laredo, Tex. She admits that she had relations with the first man only after he had promised to pay her $3. The other two men paid her a total of $5.50, but not as consideration for her favors. She made no demands upon these two men for remuneration and in fact one of them wished to marry and to support her and her four native-born illegitimate children. This money was given to her as a gift.

The respondent was married in 1920 and lived with her husband until 1929. As issue of this marriage she has three native born children. Her husband's present whereabouts is unknown to her. From 1930 until 1940 she lived with one A—G— and has four native-born minor children as the issue of this relationship. Since he deserted her in 1940, she has had to support herself and the latter four children. Until the beginning of 1942 she received some aid from the State relief authorities. Apparently she has always worked as a waitress. The record further shows that at various times she has had venereal diseases.

"Practicing prostitution" within the meaning of the act of February 5, 1917, means "to pursue as a business or occupation the sale of one's body for carnal intercourse. * Unchastity is not proof of prostitution; and a single instance, even of sale, may or may not be evidence of 'practicing' prostitution. If by a street walker, it probably would be; but here the surrounding circumstances repel the pursuit of a business, or of 'practicing' which the statute requires.” U. S. ex rel. Mittler v. Curran, 8 F. (2d) 355. The respondent has on only one occasion, insofar as this record shows, sold her body for carnal intercourse. The surrounding circumstances in this case do not reveal that she has pursued prostitution as a business or vocation. That she has led what might be considered an immoral life is obvious. Whatever the cause therefor, it does not follow that the stigma of a practicer of prostitution is to be for this reason attached to her. The pursuit of a waitress' occupation, even if in a cafe of low repute and at low wages, is somewhat inconsistent with the practice of prostitution as a business, unless, of course, the facts should show that the former occupation was a mere front. Here, however, the facts indicate that the respondent worked at her vocation as a waitress in good faith and that that was the major, if not the only, source of her income. The first charge will not be sustained.

To sustain the other charge, the evidence must establish that the resort, or resorts, wherein the respondent was employed were habitually frequented by prostitutes or were places where prostitutes gathered, and that she had knowledge thereof. Vee Look v. Burnett, 65 F. (2d) 594; Lindsey v. Dobra, 62 F. (2d) 116. The evidence upon which the Presiding Inspector based his conclusion that the last charge stated above was sustained, was supplied by the respondent's testimony and that of a police matron. The latter's testimony indicated that the neighborhood in which the several cafes where the respondent was employed were located in what was commonly known as the red light district. The duties of the female employees of these resorts, this witness testified, were to dance with men and to get them to buy drinks. These girls were allegedly free to and did make dates with the male patrons of these places.

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