'Interim Decision #1494
MATTER OP BATTEN
In Deportation Proceedings
A-2997296
Decided by Board August 17, 1966
Conviction of conspiracy to embesrld and misapply fonds, monies and securities
in violation of the Federal Reserve Act (18 U.S.C. 658) is conviction of a
crime involving moral turpitude. -
CHARGE:
Order: Act of 1552—Section 241(a) (4) 13 U.S.C. 1231(a) (4)1—Convicted
after entry of two crimes involving moral tarPityle,
to wit: larceny of property and conspiracy in violation of the Federal Reserve Act of embezzling and
misapplying funds, monies and securities.
The respondent, a native and citizen of Canada, appeals from an
order entered by the special inquiry officer on April 20, 1965 directing his deportation on the charge stated in the order to show cause.
Exceptions have been taken to the finding that the respondent's
conviction for conspiracy to violate Title 18, U.S.C., section 656, is
a crime involving mural turpitude.
The respondent, a married male -alien, 51 years of age last entered
the United States through , the port of Detroit, Michigan on or
about October 24; 1933. - He concedes that he was convicted in. the
Recorder's Court, Detroit, Michigan on. July 13, 1935, for the offense of larceny of property. It is conceded that this offense involves moral turpitude.
The respondent was convicted in the United States District
Court, Detroit, Michigan, on April 23, 1964, for the offense of conspiracy in violation of Federal Reserve Act, 1.8 U.S.C. 656, for
embezzling and misapplying funds, monies and securities. The
issue before us is whether the offense defined by 18 U.S.C. 656 1 is
a crime involving moral turpitude. ,
'Tice pertinent portion of Tine 18, U.S.C., 656 reads as follows:
Whoever, being an officer, director, agent or employee of, or connected in
any capacity with any Federal Reserve bank, member bank, national bank or
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Interim Decision #1494
The statute punishes embezzling, abstracting, purloining and
- willfully misap plying any funds or monks. The indictment (Ex.
3) Charges the 'respondent as a co-conspirator with one, Charles
Graul (an .officer of the bank) "did unlawfully, wilfully and knowingly and feloniously conspire, combine, confederate and agree together, and each with the other, and diverse other persons presently unknown ... to embezzle, abstract, purloin and wilfully misapply and cause to embezzle, abstract and wilfully misapply
monies, funds, securities and credits, which were entrusted to the
. custody, care and control of the National. Bank of Wyandotte, 2517
' Fort Highway, Wyandotte, Michigan, it Member of the Federal
Reserve System, and to the custody and care 'of Charles Graul, a
Vice-President and Branch Manager of the said National Bank of
Wyandotte, in violation of section 656, Title 18, U.S.C."
It has been held that conspiracy to commit an offense does not
involve moral turpitude unless the substantive offense, the object
of the conspiracy itself, involves moral turpitude. Matter of G , —
7 Dee. 114, citing Mercer v. Leswe, 96 F.2d 122; cer. den. 805
13.S..611. The question to be resolved is whether the substantive
offenses of embezzlement, abstraction, purloining and wilfully misapplying money belonging to the National Bank of Wyandotte involve moral turpitude. While the statute may include offenses
which do and other which do not involve moral turpitude, we of
course _must look to the' record of conviction to determine. which
portion of the statute was violated. Matter of C—, b I.. & N. Dec.
65; Matter of R ,
6 I. & N. Dec. 444.
—
There is no question but that embezzling or "purloiiring involves
moral turpitude. The issue presented id whether the offenses of
•abstracting or wilfully misapplying funds involves moral turpitride.
Counsel maintains that since there is no reference to an intent to
defraud in the statute and since there is no such charge in the in
the respondent must be deemed to have plead guilty to
the least' imaginable offense defined by the statute, namely, "A wilful misapplication of iunds with intent to injure." Counsel urges
that this offense does not involve moral turpitude because there is
insuredbank, or a receiver of a national bank, or any agent or employee of the
receiver, or a Federal Reserve Agent, or an agent or employee of a Federal
Reserve Agent or of the Board of Governors of the Federal Reserve System,
embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds
or credits of such bank or any moneys, funds, assets or securities intrusted
to the custody or care of any .such bank or to the custody or care of any such
agent, cancer, director, employee or receiver, sball be fined net more than
55,000 or imprisoned not more than five years, or both.
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no allegation that there was a misapplication of funds with an intent to defraud.
It has been consistently held that an intent to injure or defraud
the bank is an element of the offense defined by 18 U.S,O. 806 despite the fact that such an intent is omitted from the statute.
Golden v. United States, 318 F.2d. 357 (0.A. 1, 1963) ; Seals v.
United States
221 F.2d 243; Ramirez v. United States,
318 F.2d
155 (CA. 9, key 1963) ; Logsdon v. United States,
253 F.2d 12;
Williamson v. United States, 332 Fad 123; United States v. Natot,
146 F2d 197, 198 (CA. 2). The court in the Rs.mirez's CASE! (p.
158), (supra) said that "the words 'did wilfully misapply' constitute a sufficient charge of a criminal intent to defraud." According
to the indictment the respondent and others entered into a conspiracy with an officer of the National Bank of Wyandotte, Michigan who in return for a fixed fee would approve loans,in the name
of a third party submitted for discount by an organization controlled
by the respondent. The indictment charges embezzlement, purloining and .misapplieation of the funds of the bank as a result of this
conspiracy.. Under the circumstances we find that the offense of
which the respondent was convicted. involves moral turpitude. The
appeal -will be dismissed.
• ORDER: It is directed that )the appeal be and the same is hereby dismissed. •
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