ALArrEn of D—
In EXCLUSION Proceedings
A-11149738
Decided by Board April 4, 1962
Crime involving moral turpitude-18 U.S.C. 545—Smuggling with intent to defraud the United States.
Conviction for smuggling with intent to defraud the United States in violation of 18 U.S.C. 545 is conviction of a crime involving moral turpitude.
EXUL : Art of 1902-3eellou 212(a) (9) [5 U.S.C. 1152 (a ) (9 ) J — convicted cf crime involving moral turpitude, to wit, smuggling.
BEFORE THE BOARD
DISCUSSION: On January 19, 1962, the special inquiry officer
ordered the appellant excluded and deported from the United States
on the above-indicated ground. The appeal from that decision,
which brings the case before this Board for consideration, will be
dismissed.
The record relates to a 31-year-old unmarried male alien, a native
and citizen of Canada. On October 29, 1958, he was admitted to
the United States in the status of a commuter. On November 20,
1961, in the United States District Court, Eastern District, Michigan,
Southern Division, on his plea of guilty, the appellant was convicted
of smuggling whiskey into the United States in violation of 18
U.S.C. 545, and was sentenced to two years of probation. On January 18, 1962, when he applied for admission as a commuter, he was
referred to a special inquiry officer for hearing in exclusion proceedings, with the result here appealed from.
The basic issue before us is whether the crime of which the appellant stands convicted involves moral turpitude. The special inquiry
officer has held that it does, relying fundamentally on a 1938 court
decision, infra.. The appellant, however, contends that the inherent
nature of the offense has been changed by a subsequent enactment of
the statute in different language. Thus, then, is the issue joined.
The appellant, having waived prosecution by indictment, was proceeded against by way of an information charging—
That on or about March 7, 1961, Detroit, Michigan, in the Eastern District
of Michigan, Southern Division, FI—D--, did knowingly and willfully, with
605
intent to defraud the United States, import and bring into the United States
via the Ambassador Bridge, twenty-four bottles of whiskey, to wit: twenty-four bottles of whiskey labeled in part "Seagr1ms 83", which whiskey was
imported and brought into the United States contrary to law in that no invoice was presented to the United States Collector of Customs and no entry
filed as required by sections 1481 and 1484, Title 19, U.S.C.; in violation of
section 545, Title 18, U.S.C.
Accordingly, as pointed out by the special inquiry officer, the
appellant's conviction was had under the first paragraph of 18 U.S.C.
545, entitled "Smuggling Goods into the United States," which reads
as follows:
Whoever knowingly and willfully, with intent to defraud the United States,
smuggles, or clandestinely introduces into the United States any merchandise
which should have been luvoieed, or makes out or passes, or attempts 1'o pass,
through the customhouse any false, forged, or fraudulent invoice, or other
document or paper. . . 1 (Emphasis supplied.)
The special inquiry officer's holding that respondent's conviction
thereunder was for a crime involving moral turpitude was based,
in great part at least, on the August 20, 1958, decision of the Court
of Appeals for the Fifth Circuit in the case of Guarneri v. Kessler,
98 F.2d 580. That case involved an alien who, along with 15 other
named persons, was accused of conspiring to smuggle, import and
bring into the United States some 6,000 gallons of alcohol lit for,
and intended for, beverage purposes, and with the substantive offenses of smuggling and concealing illegally imported alcohol after
it came into the United States, all with intent to defraud the United
States, in violation of 19 U.S.C. 1593(a) [the Tariff Act of 1930],
which then read:
If any person knowingly and willfully, with intent to defraud the revenue
of the United States, smuggles, or clandestinely introduces into the United
States any merchandise which should have been invoiced, or makes out or
passes, or attempts to pass, through the customhouse any false, forged, or
fraudulent invoice, or other document or paper, every such person, his, her,
or their alders and abettors, shall be deemed guilty of a misdemeanor, and
on conviction thereof shall be fined in any sum not exceeding $5,000, or Imprisoned for any term of time not exceeding two years, or both, at the discretion of the court. (Emphasis supplied.)
The thrust of the appellant's argument is that the omission of
the words "the revenue" changes the essential element of the offense to such an extent that it no longer involves moral turpitude.
It is his contention that, in view of the absence of the words "the
revenue," the present offense does not contemplate an actual loss of
Government income. He cites as authority for this proposition the
case of United States v. McKee,
220 F.2d 266 (C.A. 2, 1955).
The McKee case, supra, involved persons indicted for conspiracy
1 Shall be fined not more than $5,000 or imprisoned not more than two years,
or both.
under the conspiracy statute, 18 U.S.C. 371, to smuggle, import, ,
conceal, and transport a snowmobile in violation of the smuggling
statute, 18 T_I.S.C. 545. In discussing the latter offense, the Court
of Appeals for the Second Circuit, in its decision of March 3, 1955,
said, in part:
We have earlier had occasion to consider the element of the crime here
involved. In United States v. Kushner, 2 Cir.,
135 F.2d 668, 670, certiorari
denied _Kushner v. United States,
320 U.S. 212,
63 S.Ct. 1449,
87 L.Ed. 1850,
we held, somewhat reluctantly, that the then wording of the statute, "intent
to defraud the revenue of the United States," contemplated an actual loss of
government income. Since that time the statute has been amended to delete
the specific reference to "revenue." We therefore hold that under the present
section,
18 U.S.C. § 545 supra, it is no longer necessary to show that the item
or items introduced clandestinely into the United States were subject to duty.
Adequate reporting of merchandise being brough:. into the country is absolutely
necessary to the eufurceuteM of the customs laws, awl failure to comply with
these requirements is just as criminal as failure to pay the customs fees. See
United States v. Twenty-Five Pictures, D.C.S.D. N.Y.,
260 F. 851.
The Kushner case, supra, involved a person who, with four codefendants, was accused, inter (ilia, of violating former 19 U.S.C.
1593(a), prohibiting smuggling "with intent to defraud the revenue
of the United States," by importing and assisting the importation
of undeclared gold bullion from Canada. The Court of Appeals
for the Second Circuit in its May 5, 1943, decision in that case,
although not free from doubt on the point, inclined to the view
that an intent to deprive the Government of revenue must he held
an ingredient of the crime defined in former 19 U.S.C. 1593(a).
That is, the Court ruled that no conviction under said section could
be had absent proof of financial loss to the Government, at least
intended. However, in so ruling the Court pointed out (p. 671)
that the expression "intent to defraud the revenue of the United
States" (emphasis supplied) was a hardly grammatical expression
the meaning of which was not wholly clear.
The case of United States v. Twenty-Five
Pictures, supra, involved forfeiture proceedings as to paintings allegedly brought into
the United States in violation of section 3082 of the United States
Revised Statutes (Comp. St. 5785) providing that:
If any person shall fraudulently or knowingly import or bring into the
United States, or assist in so doing, any merchandise, contrary to law, • …
such merchandise shall be forfeited. 2
2 This section later became 19 U.S.C. 1593(b), which read: "If any person
fraudulently or knowingly imports or brings into the United States, or assists
in so doing, any merchandise contrary to law, or receives, conceals, buys, sells,
or in any manner facilitates the transportation, concealment, or sale of such
merchandise after importation, knowing the same to have been imported or
brought into the United States contrary to law, such merchandise shall be
forfeited and the offender shall he fined in any sum not exceeding $5,000
nor less than *50, or be imprisoned for any time not exceeding two years,
or both."
607
The portion of the Court's decision therein which is here pertinent states:
… if the addition of the word "fraudulently" (though in the disjunctive)
requires proof of an intention to defraud the Government, the requisite fraud
need not consist of deprivation of customs revenues. The collation of information in order to pass upon the classification of merchandise,.and the question often most difficult us to whether it is dutiable, and, if so, just what
duty is imposed, is an important function of the revenue department of the
Government. Without such information, the Customs Act cannot really be
enforced or the revenues collected.
… To deprive the United States of the information it was entitled to,
and of the opportunity for investigation and classification afforded to it • •*
was to defraud the United States. … it is enough to defraud the Government if an act is done calculated to obstruct or impair its efficiency and
eotroy the value of its operations and reports as fair, impartial, and reacnnably accurate *
Careful consideration of the foregoing judicial precedents convinces us of the lack of merit in the appellant's theory that the
absence of the words "the revenue" from the statute as presently
written changes the inherent nature of the offense. In our opinion
the existence vet non of actual financial loss (income) to the Government is not dispositive of the question of whether the offense
involves moral turpitude. We so hold.
The case of United States v. Kushner, supra, pointed up that the
statutory phrase "intent tn defraud the revenue of the United
States" constituted a hardly grammatical expression the meaning
of which was not free from doubt. The transfer of this offense
from 19 U.S.C. to its present position in the statutory scheme
was accomplished as a part of the revision, codification, and enactment into positive law of all applicable criminal laws in effect
April 15, 1947, which became Title 18, United Stales Code. The
revision aspect thereof meant the substitution of plain language
for awkward terms and the elimination of archaic language employed in the old statutes (H. Rept. No. 304, 80th Congress, 1st
session). Accordingly, and assuming as we must that the Congress
was aware of the Court decision pointing up the unfortunate phrasing of former 19 U.S.C. 1593(a), we have an adequate explanation
of the absence of the words "the revenue" from the statute in its
present form.
We cannot agree with the appellant that the omission of those
words removes from the statute now on the books the element essential to constitute the offense as one involving moral turpitude. The
case of United States v. McKee, supra, merely stands for the proposition that a conviction under the statute no longer requires proof
that the accused intended financial loss to the Government to result
from his contemplated action. But this does not delete the element
of fraud from the crime. As was pointed out by Judge Hand in the
608
case of Unt`hql Stu-Z6 - -v. Twenty-1 7 iv6 1!.'ttre6 'Supra, the element
of deprivation of revenue (financial loss) is not an essential ingredient of fraud; but that fraud can consist of impairing or
rendering unworkable an important function of a department of the
Government.; and, specifically, that to deprive the United States
of information it is entitled to, and of the. opportunity for investigation, is to defraud the United States. That is, it is enough to
defraud the Government if an act is done, calculated to obstruct
or impair its efficiency and destroy the value of its operations. Support for our ruling on this point, if same is needed, can be found in
the decision of the Supreme Court of the United States in the case
of Jordan v. DeGeorge, 341 U.S. 223, wherein it was stated:
. . the decided cases make it plain that crimes in which fraud was an
ingredient have always been regarded as involving moral turpitude.
Finally, we find unavailing appellant's alternative argument that
the statute under which the appellant was convicted is divisible,
and that thereunder he could have been convicted, in effect, of
failing to file invoices or entry documents for merchandise which
is not a crime involving moral turpitude. We here need not speculate as to the possible nature of the offense spelled out in the second
portion of the statute, to wit, filing of invoices and entry documents.
The reason is that the inherent nature of the crime of which this
appellant stands convicted is established by the record of his conviction, including the inforination (indictment). That is, where,
as here, the record of conviction clearly shows intent to defraud the
United States involved in the commission of a crime contained in a
divisible statute, we are justified in basing thereon a conclusion that
the crime involved moral turpitude (Matter of C—, 5-65, at p. 71).
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
609
GrA377 ca so
