D'LS TTER OF E—
In DEPORTATION Proceedings
A-8600520
Decided-by Board Auglz,! -,-t. Si, 1961
Crime involving moral turpitude—Conspiracy to interfere with lawful functions of U.S. agency.
Conspiracy to defraud the United States under 18 U.S.C. 371 by impeding,
obstructing, and attempting to defeat the lawful functions of an agency of
the United States is a crime involving moral turpitude.
CHARGE :
Order : Act of 195` Section 241(a) (4) [El U.S.C. 1251(a) (4)1—Convicted of
crime involving moral turpitude committed within five years after
entry and sentenced to confinement therefor in a prison or corrective institution for a year or more, to wit, conspiracy to defraud the. United. States by impeding, impairing, obstructing and
attempting to defeat the lawful functions of the Securities and
Exchange Conimiosion, an agency of the United States, in violation of Title 18, U.S.C., sections 2 and 371, by unlawfully, willfully and knowingly failing to file required reports; hindering,
obstructing and delaying the required filing of documents, reports
and information ; and by causing to be made and filed with the
New York Stock Exchange and the Securities and Exchange Commission reports which were false and misleading with respect to
material facts and containing omissions of material facts.
BEFORE THE BOARD
DISCUSSION: Respondent, is 56 years of age, married, male, alien,
a native of China and a citizen of the United Kingdom and colonies.
His last entry was in A ugust 1958, after a brief visit to Canada.
He states that he has been in the United States since. 1950, that he
was admitted on January 7, 1954, for permanent residence at Rouses
Point, .New York, after having gone to Canada to secure an immigrant visa. 14e was ordered deported from the United States on the
charge set forth above and he appeals to this Board.
On January 27, 1960, respondent and others were convicted in
the United States District Court, for the Southern District of New
York of a conspiracy to defraud the United States in violation of
U.S.C. 871., The defendant pleaded not guilty and was eon-
victed by a jury on 15 of 21 counts of the indictment of the offeeLi
of unlawfully, willfully and knowingly failing to file with the
New York Stock Exchange and the Securities and Exchange Commission statements indicating the beneficial ownership and the
changes in the beneficial ownership of equity securities; hindering,
delaying and obstructing the making and filing of annual and cur
rent reports required to be filed with the New York Stock Exchange
and the Securities and Exchange Commission; and conspiracy to
commit these offenses (Title 15, secs. 78p(a), 78ff (a), 78t(c) ; Title
18, secs. 2 and 371, United States Code) and to defraud the United
States by impeding, impairing, obstructing and attempting to defeat the lawful functions of the Securities and Exchange Commission. He was sentenced to imprisonment on February 17, 1960, and
on September 30, 1960, his prison sentence was reduced from 2 years
and 11 months to 1 year and 11 months on count 21, the conspiracy
count, and he was fined $io,non. Prison sentences on other counts
were to run concurrently 'with each other and concurrently with
the prison sentence on count 21.
The conviction of respondent and others was affirmed in United
States v. aaterma, 281 F.2d 742 (C.A. 2, 1960), referred to in respondent's memorandum (p. 5), wherein the court said:
. the Government's case on the conspiracy count and on Count 5, relating to obstructing the filing of the 10 - 1C report, was use-rwholraing established. . (Emphasis supplied.)
. . . Here we can immediately dispose of Count 5, the charge of intentionally delaying the filing of Jacob's annual report, as to which the proof was
so overwhelming and the criticisms of the Judge's charge so wholly unmeritorious as to make comment supererogatory.
The court of appeals affirmed the judgment of conviction of E—
and his co conspirators, with the exception of E--'s conviction on
-
count nine. The court sustained the conviction on the other counts,
including the conspiracy count, finding no reversible error.
Respondent makes his appeal to the Board primarily on the issue
of the inadequacies of the pleading and evidence. The Board's
jurisdiction does not extend to retrying the respondent's conviction.
Respondent alleges that the indictment charges only that he conspired to violate the laws of the United States and does not ado
quately allege that he conspired to dafraud the United States. He
was found guilty of the offenses set forth in the charge, and his
plea that he was not found guilty of a conspiracy to defraud the
United States is not in accordance with the record. We are bound
by the record of conviction, and the "record" includes the indictment, the plea, the verdict and the sentence. United States ex rel.
Zaffaran,o v. Corsi, 63 F.2d 757 (C.C.A. 2, 1933) ; United States ex
rel. Meyer v. Day,
54 F.2d 336 (C.C.A. 2, 1931) ; United States ex
rel. Robinson v. Day,
51 F.2d 1022 (C.C.A. 2, 1931).
422
Count 21, paragraph 2, alleges that the "defendants and co-conspirators would defraud the United States" by the overt acts there
set forth. The amended judgment and commitment of the court
leave no question as to the offenses of which respondent was found
guilty. It has long been held that the true test of the sufficiency
of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense
intended to be charged and sufficiently apprises the defendant of
what he must be prepared to meet. Hagner v. United States, 285
U.S. 427 (1932). The sufficiency and adequacy of conspiracy pleading is discussed in Williamson v. United States,
207 U.S. 425 (1908),
and Glasser T. United States.
315 U.S. 60 (1942). The indictment
in the present case. along with the rest of the conduct of the prosecution, was held sufficient, by the, circuit court of appeals. Certainly
the pleading and the order to show cause are adequate by immigration standards.
It is our opinion that the only question before us for determination is whether the alien's conviction was for an offense involvin
moral turpitude. If the substantive offence charged involves moral
turpitude then the conspiracy to commit that offense also involves
moral turpitude.' We are concerned here primarily with count 21
which charges a conspiracy to defraud the United States under
Title
18, U.S.C., section 371. 2 This statute creates two crimes, first,
a conspiracy to commit an offense against the United States, and,
second, a conspiracy to defraud the United States in any manner
or for any purpose. Respondent was convicted of both offenses
and sentenced for both offenses.
There are many cases wherein the defendants conspired to defraud the Government of money, either in income taxes or liquor
taxes, or to defraud the United States of its governmental functions
in the control and regulation of intoxicating liquor for any purpose, and the offenses were found to be crimes involving moral
turpitude. We will point out primarily, however, cases wherein
1 United States ex rel. Berlandi v. Reimer,
30 F. Supp. 767 (S.D.N.Y., 1939)
Mercer T. Lenee,
96 F.2d 122 (C.C.A. 10, 1938), cert. den.
305 U.S. 611.
2 Title
18, U.S.C., section 371, provides as follows:
If two or more persons conspire either to commit any offense against the
United States, or to defraud (emphasis added) the United States, or any
agency thereof in any manner or for any purpose, and one or more of such
persons do any act to effect the object of the conspiracy, each shall be fined
not more than $10,000 or imprisoned not more than five years, or both.
it, however, tne orrense, the commission or wnicn is the object or the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not
exceed the maximum punishment provided for such misdemeanor.
This section includes prior statute 18 U.S.C. 88. The revision differs only
cram the precious statute by the liwyrilou of the worils ''or any agency
thereof."
the courts have held that pecuniary loss to the Government is not
necessary for conviction under 18 U.S.C. 371, or its predecessor,
section •88.
An outstanding case wherein the court upheld the conviction, even
though the conspiracy to defraud the United. States did not involve
pecuniary loss to the Government, is Latvialc v. United States,
344
U.S. 604 (1953). The defendants were convicted for conspiring
"to defraud the United States of and concerning its governmental
function and right of administering" the immigration laws and the
Immigration and Naturalization Service, by obtaining the illegal
entry into this country of three aliens as spouses of honorably discharged veterans. The substantive counts against all the defendants were dismissed (on a question of venue), and three of the
petitioners were convicted on the conspiracy count.
The majority opinion stated (p. 609) :
There is an abundance of evidence in this record of a conspiracy to contract spurious, phony marriages for the purposes of deceiving the immigration authorities and the:eby perpetrating a fraud upon the United States,
and of a conspiracy to commit other offenses against the United States.
The court said that this conspiracy constituted a fraud on the
United States because Congress, by enacting the War Brides Act,
did not intend to "provide aliens with an easy means of circumventing the quota system by fake marriages" (court of appeals
decision,
195 F.2d 748 (C.A. 7, 1952)).
Haas v. Henkel,
216 U.S. 462 (1910), probably the leading case
where the defendants were indicted for conspiracy to defraud the
United States, states the rule. The conspiracy was that the defendant would cause false statistical reports to be issued from the Department of Agriculture. Certain of the conspirators were to have
advance information of the issue of such reports. The court said:
These counts do not expressly charge that the conspiracy included any direct pecuniary loss to the United States, but as it is averred that the acquiring of the information and its intelligent computation, with deductions, comparisons and explanations involved great expense, it is clear that practices of
this kind would deprive these reports of most of their value to the public and
degrade the department in general estimation, and that there would be a real
financial loss. But it is not essential that such a conspiracy shall contemplate a fitly-vela' lu a or (Ana one shall result. The statute is broad enough
in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of the Government
The court followed Haas v. fien7cel in United States v. Soeder,
10 F. Supp. 944 (W.D. Md., 1035), wherein the conspirators were
indicted under 18 U.S.C. 88 for violating policies and regulations
of the Secretary of Agriculture in carrying out the Agricultural
Adjustment Act by pretending to comply with the law and regulations of the Secretary of Agriculture.. The court said, "The stat-
424
ute relating to the subject of conspiracies is very broad, and it is
directed against any conspiracy 'to defraud the United States in
any manner or for any purpose.' Pecuniary loss is not necessary,
but it means any impairment of the administration of governmental functions," citing cases.
In United States v. Pezzati, 160 F. Supp. 787 (D.C. Col., 1958), 3
thedfnaswrcgithonpaydefruUnit
States by fraudulent compliance with section 9(h) of the Labor
Management Relations Act of 1947 (29 U.S.C.A. 159(h)) by filing
of non-Communist affidavits. The court denied the motion of the
defendants to dismiss the indictment, finding that the indictment
adequately charged a conspiracy to defraud the United States by
the impairment, obstruction and defeat of the lawful functions of
the Board, and, therefore, sufficiently stated an offense against the
United States. Other cases following the same reasoning are Curley
v. United States, 130 Fed. 1 (C.C.A. 1, 1904) ; Outlaw v. United
States,
81 F.2d 805 (C.C.A. 5, 1936); and Langer v. United States,
76 F.:2d 917 (C.C.A. 3, 1935). Ussitad States v. Bow108,
183 F.
Supp. 237 (Maine, 1958), held that an Interstate Commerce Commission employee who received $8,000 for services in connection
with the sale of the controlling interest in an interstate trucking
company had conspired to defraud the United States in its right
to have the business of the commission transacted honestly, efficiently and free from corruption. See also Fiswich v. United
States,
329 U.S. 211 (1946), which reversed only for improper instructions to the jury a conviction under 18 U.S.C. 88 for conspiring with others to defraud the United States in the exercise of
its governmental functions by violating the Alien Registration Act
of 1940.
United States ex. rel. Popoff v. Reimer,
79 F.2d 513 (C.C.A. 2,
1935), held squarely that moral turpitude is involved in the fraud
against the United States of knowingly aiding an alien not entitled
to naturalization to apply for or obtain citizenship. The court
(Manton, L. Hand and Swan, J. J.) said:
. . . Criminal frauds with respect to property have universally, so far as
we are advised, been deemed to involve moral turpitude (citing cases). That
the fraud relates to obtaining rights of citizenship rather than to property
does not, we think, make it any the less contrary to community standards of
honesty and good morals.. .
3 This conspiracy was extensively litigated, and the conviction on the first
trial was set aside and a new trial ordered under the name of Travis v. United
States,
247 F.2d 130 (C.A. 10, 1957), but not on any issue of concern here.
The convictions were affirmed on retrial, Travis v. United State, 269 F.2d
92S (C.A. 10, 1059), and
208 F.2d 218 (C.A. 10, 1959), per curiain without
written opinion.
425
As stated above, we have purposely sought cases laid under Title
18, section 371 (or section 88) which do not involve conspiracies
to defraud the United States by failure to pay taxes, preferring,
instead, to seek authority in cases of conspiracies to defraud the
United States by impeding, obstructing and attempting to defeat
the lawful functions of agencies of the United States engaged in
activities other than the collection of taxes. However, there are
a number of cases not to be overlooked concerning conspiracies to
avoid the payment of taxes. Jordan v. DeGeorge, 341 U.S. 223
(1951), held squarely that a conspiracy to defraud the United
States of taxes on distilled spirits is a "crime involving moral turpitude" within the meaning of section 19(a) of the Immigration
Act of 1917. The respondent was indicted first with eight other
defendants for violating the Internal Revenue Code by possessing
whiskey and alcohol "with intent to sell in fraud of law and evade
the tax thereon." Less than a year after his release from a federal
penitentiary he was again tried and found guilty of conspiring to
"unlawfully, knowingly, and willfully defraud the United States
of tax on distilled spirits." Citing extensive authority, the court
said (p. 227) :
. . . Without exception, federal and state courts have held that a crime in
which fraud is an ingredient involves moral turpitude. In the construction
of the specific section of the Statute before us, a court of appeals has stated
that fraud has ordinarily been the test to determine whether crimes not of
the gravest character involve moral turpitude. United States ex rel. Bertandi
v. Reimer,
113 F.2d 429 (1940).
In every deportation case where fraud has been proved, federal courts have
held that the crime in issue involved moral turpitude [citing cases]. . .
• • • • •
In view of these decisions, it can be concluded that fraud has consistently
been regarded as such a contaminating component in any crime that Ameri
can courts have, without exception, included such crimes within the scope of
moral turpitude. It is therefore clear, under an unbroken course of judicial
decisions, that the crime of conspiring to defraud the United States is a
"crime involving moral turpitude."
See also United States v. Klein, 247 F.2d 908 (C.A. 2, 1957)
(defendants were convicted of conspiring to defraud the United
States by impeding and obstructing the Treasury Department in
collection of income taxes) ; United States ex rel. Carroll() v. Bode,
204 F.2d 220 (C.C.A. 8, 1953) ; Maita v. Haff,
116 F.2d 337 (C.C.A.
9, 1940) (engaging in business of a distiller with intent to defraud
the United States of taxes on the spirits distilled) ; Guarneri v.
Kessler,
98 F.2d 580 (C.C.A. 5, 1938) (smuggling' alcohol into the
United States with intent to defraud the United States involves
moral turpitude).
The Board has followed the above cited judicial decisions in a
series of decisions. Matter of S—, 2 225 - 1944), found that
426
a conviction of conspiracy to defraud the United States involving
an agreement to cause alien members of the German-American Bund
when registering under the Alien Registration Act of 1940 to conceal
membership therein and fail to state that the Bund was an organization which furthered the public policy, public relations and political
activities of a foreign nation, was a crime involving moral turpitude.
Matter of T—, 2-95 (3.1.A., 1944), also charged a conspiracy under
18 U.S.C. 88, to wit, to defraud the Government of tax on distilled
spirits, and we found the crime to be one involving moral turpitude. In Matter of M , S 535 1960), respondent was
convicted in 1938 and again in 1941 under 18 U.S.C. 88 for conspiracy to violate the Internal Revenue Act, and the Board found
that he was twice convicted of crimes involving moral turpitude
in that each indictment charged conspiracy to defraud the United
States Government by avoiding taxes levied under the Internal
Revenue laws.
Respondent was convicted of conspiring to defraud the United
States by the acts set forth in the order to show cause. Conspiracy
to defraud the United States under 18 U.S.C. 371 by impeding,
obstructing and attempting to defeat the lawful functions of an
agency of the United States is a crime involving moral turpitude.
All the reported judicial and administrative decisions require such
a holding
Respondent has asked for any discretionary relief available to
him. He was informed by the special inquiry officer at the hearing
that he is not eligible for any form of discretionary relief. He
has a second wife from whom he is separated but not divorced and
who lives in England. He stated in a sworn affidavit, April 14,
1960, exhibit 7, that he has been living in a "common-law relationship" from the beginning of 1959 with a United States citizen by
whom he has one child. Respondent would be unable to establish
good moral character inasmuch as he has been convicted of a crime
involving moral turpitude committed within five years after his
last entry and has been confined to a prison or corrective institution for a year or more. See section 101(f) (3) and (7). The special inquiry officer was correct that there is no relief from deportation available to respondent under the law. The appoal will he
dismissed.
ORDER: It is ordered that the appeal be and is hereby dismissed.
427
