Opinion · United States Board of Immigration Appeals

IN THE MATTER OF S----, 2 IN Dec. 225 (BIA 1944)

2 IN Dec. 225

Type
Opinion
Court
United States Board of Immigration Appeals
Jurisdiction
Federal
Date
1944-12-09
Topic
general

IN THE MATTER OF S----, 2 IN Dec. 225 (BIA 1944) IN THE MATTER OF S----. IN DEPORTATION PROCEEDINGS. 56152/593Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Board on December 9, 1944. Crime involving moral turpitude — Conspiracy in violation of sections 80 and 88, title 18, U.S.C. 1. If the substantive offense is one involving moral turpitude then the conspiracy to commit that offense involves moral turpitude. 2.

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IN THE MATTER OF S----,2 IN Dec. 225(BIA 1944)
IN THE MATTER OF S----. IN DEPORTATION PROCEEDINGS.
56152/593
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by Board on December 9, 1944.
Crime involving moral turpitude — Conspiracy in violation ofsections 80 and 88, title 18, U.S.C.

1. If the substantive offense is one involving moral turpitude then the conspiracy to commit that offense involves moral turpitude.

2. Conspiracy to make and cause to be made false and fraudulent statements in a matter within the jurisdiction of a department of the United States in violation of section 80, title 18, U.S.C., is a crime involving moral turpitude.

3. Conspiracy to defraud the United States in violation of section 88, title 18, U.S.C., is a crime involving moral turpitude.

CHARGES:

Warrant: Act of 1940 — Within 5 years of entry, convicted of providing or attempting to provide registration of himself or another through fraud.

Lodged: Act of 1917 — Sentenced for year or more for crime involving moral turpitude committed within 5 years of entry, to wit: Conspiracy in violation of sections 80 and 88 of title 18, U.S.C.
BEFORE THE BOARD
BEFORE THE BOARD
Statement of the case:On January 21, 1944, we found the warrant charge inapplicable since the respondent was not convicted under the Alien Registration Act of 1940 and, accordingly, the hearing was reopened for the lodging against him of the second charge stated above.

On July 7, 1942, the respondent and certain others were indicted in the United States District Court for the Southern District of New York of conspiracy to defraud the United States by counseling submission of false statements in a matter before a department of the Government in violation of section 88, title 18, United States Code. He was convicted as charged on November 4, 1942, and sentenced to imprisonment for a term of 1 year and 9 months. It was alleged in the indictment that on or about January 1, 1940, and up to the date of the filing of the indictment, the defendants conspired "to make and to cause to be made false and fraudulent statements in a matter within the jurisdiction of a Department of the United States, in violation of section 80, title 18, United States Code; and to defraud the United States of and concerning its governmental function of obtaining and acquiring, by and through the Immigration and Naturalization ServicePage 226of the Department of Justice of the United States, information required by the United States and by said Department of Justice for the proper administration and enforcement of the Alien Registration Act of 1940, of and concerning aliens, and particularly information of and concerning the activities of aliens within the United States, including the memberships or activities in clubs, organizations or societies of such aliens and the affiliation of such aliens with and the activity of such aliens in organizations devoted in whole or in part to influencing or furthering the political activities, public relations, or public policy of a foreign government." The indictment then went on to allege, in substance, that the defendants were directing officers of the German — American Bund and, as such, they agreed to instruct and to cause alien members of the Bund in registering under the Alien Registration Act of 1940 to conceal their membership in the Bund, and "fail to state that the Bund was an organization which furthered the public policy, public relations, and political activities of a foreign nation, to wit, the Third German Reich, with which organization they were affiliated and in which organization they were active."

The respondent pled guilty to the indictment and was sentenced to imprisonment for a term of 1 year and 9 months.

The Presiding Inspector, on the basis of the evidence adduced at the reopened hearing, finds the respondent subject to deportation on the lodged charge.Discussion:The only question for determination is whether the alien's conviction was for an offense involving moral turpitude. If the substantive offense charged involves moral turpitude then it follows as a matter of law that the conspiracy to commit that offense also involves moral turpitude.1

Section 88, title 18, U.S.C. (sec. 37 of the Penal Code) reads:
If two or more persons conspire 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 2 years, or both.


The foregoing section creates two crimes.

(1) Conspiracy to commit an offense against the United States, and

(2) Conspiracy to defraud the United States in any manner or for any purpose.

With respect to the first crime, the substantive offense charged is a violation of section 80, title 18, U.S.C. (sec. 35 (A) of the Criminal Code) which, as far as pertinent, reads:Page 227
Whoever shall make or cause to be made or present or cause to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, or any department thereof, or any corporation in which the United States of America is a stockholder, any claim upon or against the Government of the United States, or any department or officer thereof, or any corporation in which the United States of America is a stockholder, knowing such claim to be false, fictitious, or fraudulent; or whoever shall knowingly and willfully falsify or conceal or cover up by any trick, scheme, or device a material fact, or make or cause to be made any false or fraudulent statements or representations, or make or use or cause to be made or used any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry in any matter within the jurisdiction of any department or agency of the United States or any corporation in which the United States of America is a stockholder, shall be fined not more than $10,000 or imprisoned not more than ten years, or both (Mar. 4, 1909, ch. 321, § 35,35 Stat. 1095; Oct. 23, 1918, ch. 194,40 Stat. 1015; June 18, 1934, ch. 537,48 Stat. 996; Apr. 4, 1938, ch. 69,52 Stat. 197).


The immigration statute2requires that the offense for which the respondent was convicted involved moral turpitude. The term "moral turpitude" has been defined on numerous occasions. It is anything done contrary to justice, honesty, principle or good morals, an act of baseness, violence, or depravity. It implies something immoral in itself, regardless of the fact whether it is punishable by law. Doing the act and not its prohibition by statute fixes the moral turpitude. Everything done contrary to justice, honesty, modesty, or good morals, is done with turpitude. The standard by which the offense is to be judged, regardless of where committed, is that prevailing in the United States as a whole regarding the common view of our people concerning its moral character. It is hardly conceivable that an act could be of the character indicated and yet not be penalized by our laws.3

Conspiracy to commit an offense against the United States or to defraud the United States within the purview of the section of law involved herein, is an infamous crime within the fifth amendment, providing that no person shall be held to answer for an act or other offense unless on a presentment or indictment of a grand jury.4

Conspiracy "to defraud the United States" under the section in question means, primarily to cheat the Government out of any money or property, but also means to interfere with or obstruct lawful governmental functions by deceit, graft, or trickery or dishonest means.5Page 228To deprive the United States of its lawful governmental functions by corrupting its officers in the performance of their official duties is a defrauding within subsection 37 of the Criminal Code (18 U.S.C., § 88), making it a criminal offense to conspire to defraud the United States in any manner or for any purpose.6

But not all conspiracy offenses necessarily involve moral turpitude. Hence a conviction for conspiracy of itself is no guide but the substantive offense charged must determine that issue.7In other words if the substantive offense is one involving moral turpitude, then it follows as a matter of law that the conspiracy to commit that offense also involves moral turpitude.8

The substantive offense charged against the respondent, as more fully recited hereinbefore, involved acts of a serious nature. The respondent (and others) was a directing officer of the German — American Bund, and the conspiracy involved an agreement to cause alien members of the Bund in registering pursuant to the Alien Registration Act of 1940, to conceal membership therein, and to fail to state that the Bund was an organization which furthered the public policy, public relations, and political activities of a foreign nation, to wit: The Third German Reich, with which organization they were affiliated and in which organization they were active. The indictment charged an attempt to defraud the United States of and concerning its governmental function of obtaining and acquiring by and through the Immigration and Naturalization Service of the Department of Justice of the United States, information required by the United States and by the said Department of Justice for the proper administration and enforcement of the said Alien Registration Act of 1940, concerning aliens, and particularly information of and concerning the activities of aliens within the United States, including the memberships or activities in clubs, organizations or societies of such aliens and the affiliation of such aliens with and the activity of such aliens in organizations devoted in whole or in part to influencing or furthering the political activities, public relations or public policy of a foreign government.

The respondent's acts contemplated the perpetration of frauds against the United States in the lawful administration of its governmental affairs and functions. They affected the very nature of the Government in the ordinary conduct and administration of necessaryPage 229and important functions. The importance of the Government's right to know these things is even more imperative during times when its very existence is dependent upon its knowledge of the commission or the encouragement of the commission of acts of a subversive and inimical nature which might seriously impair its lawful powers of governmental affairs.

We have no hesitancy in holding that the substantive offense charged against the respondent, judged by the principles enunciated, clearly and unquestionably are obliquitous in nature. We, therefore, agree with the Presiding Inspector that the respondent's conviction was for an offense involving moral turpitude and that therefore he is subject to deportation on the charge lodged against him at the reopened hearing.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 Germany;
(2) That the respondent last entered the United States at the port of New York on January 17, 1938;
(3) That the respondent was convicted of the offense of conspiracy to make and cause to be made false and fraudulent statements in a matter within the jurisdiction of a department of the United States in violation of section 80, title 18, U.S.C.; and conspiracy to defraud the United States in violation of section 88, title 18, U.S.C.;
(4) That said offenses were committed within 5 years of the respondent's last entry;
(5) That the respondent was sentenced to imprisonment for a term of more than 1 year.
Conclusions of Law:Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation, in that, 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 make and to cause to be made false and fraudulent statements in a matter within the jurisdiction of a department of the United States, in violation of section 80, title 18, United States Code; and conspiracy to defraud the United States in violation of section 88, title 18, United States Code;
(2) That under the act of June 28, 1940, the respondent is not subject to deportation, in that, within 5 years after entry he has been convicted of procuring or attempting to procure registration of himself or another person through fraud;
Page 230
(3) That under section 20 of the Immigration Act of 1917, the respondent is deportable to Germany at the expense of the Government.
Other Factors:The respondent is single. His parents, brothers, and sisters reside in Germany. One brother resides in this country. It appears that the alien has served his sentence and is awaiting internment as an alien enemy.Order:It is ordered that the alien be deported to Germany at Government expense on the following charge:
That he is in the United States in violation of the Immigration Act of 1917, in that he has been sentenced to imprisonment for a term of 1 year or more because of convictions in this country of a crime involving moral turpitude, committed within 5 years after entry, to wit: Conspiracy to make and to cause to be made false and fraudulent statements in a matter within the jurisdiction of a department of the United States, in violation of section 80, title 18, United States Code; and conspiracy to defraud the United States, in violation of section 88, title 18, United States Code.
Page 231
  1. U.S. ex rel. Berlandiv.Reimer,30 Fed. Supp. 767(S.D.N.Y. December 28, 1939);Mercerv.Lence,96 F. (2d) 122(C.C.A. 10th, 1938); (cert. den.305 U.S. 611). ↩
  2. Section 19, Immigration Act of Feb. 5, 1917 (8 U.S.C.A. 155). ↩
  3. 41 C.J. 212; 37 Op. Atty. Gen. 294; U.S. ex rel.Myliusv.Uhl.,203 Fed. 152 (S.D.N.Y., 1913);Coykendallv.Skrmetta,22 Fed. 120 (C.C. 5th, 1927);Sippv.Coleman,179 Fed. 997 (D.C.N.J., 1910). ↩
  4. Mackinv.United States,117 U.S. 348(1886);UnitedStatesv.Wells,163 Fed. 313 (D.C. Idaho, C.D. 1908). ↩
  5. United Statesv.Pan-American Petroleum Co.,6 F. (2d) 43(S.D. Cal. N.D., May 28, 1925);Hammerschmidt et al.v.United States,265 U.S. 182(1924). ↩
  6. Glasserv.United States,315 U.S. 60,66(1942). ↩
  7. Matter of K----,56137/320 (1944). ↩
  8. See footnote 1supra.Cf.United Statesv.Holte,236 U.S. 140;Chewv.United States,9 F. (2d) 348(C.C.A. Ark., 1925);Morrisv.United States,7 F. (2d) 785(C.C.A. Ark., 1925; cert. den., 1926),270 U.S. 640;Lindenv.UnitedStates,2 f. (2d) 817 (C.C.A., N.J., 1924);Gouklerv.UnitedStates,294 Fed. 274 (C.C.A., N.J., 1923);United Statesv.Castro,7 F. (2d) 510(D.C.N.Y., 1922);United Statesv.Carrollo,30 Fed. Supp. 3(W.D. Mo. 1939). ↩