A-3443035
Decided by Board February 9, 1956
Crime involving moral turpitude — 26 U.S.C. 2803 (a) and (g) and 2812 — 18 U.S.C. 88.
(1) Conviction for violation of 26 U.S.C. 2803 (a) and 2812 (transportation and possession of distilled spirits without tax stamps affixed thereto) is not conviction for crime involving moral turpitude.
(2) Conviction for violation of 26 U.S.C. 2803 (g) is not conviction for crime involving moral turpitude where indictment does not charge intent to defraud.
(3) 18 U.S.C. 88 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. Violation of the former does not involve moral turpitude while violation of the latter does involve moral turpitude.
(4) Conviction under 18 U.S.C. 88 for conspiracy to commit an offense against the United States, namely, to violate 26 U.S.C. 2803 (a) and (g) and 2812 is not conviction for a crime involving moral turpitude since the substantive offense does not involve moral turpitude.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (4) — After entry convicted of two crimes involving moral turpitude, to wit: Attempted robbery, third degree, and conspiracy under 18 U.S.C. 88 to violate 26 U.S.C. 2803 (g).
BEFORE THE BOARD
Discussion: The respondent appeals from an order entered by the special inquiry officer May 24, 1955, directing his deportation on the charge stated above. Exceptions have been taken to the legal conclusion that after entry respondent has been convicted on two separate occasions of crimes involving moral turpitude.
The record relates to a native and citizen of Italy, male, married, 51 years of age, who last entered the United States at the port of New York on September 20, 1920, ex SS. Lafayette. Respondent was convicted on March 25, 1927, in the Court of General Sessions of the City of New York on a plea of guilty of the crime of attempted robbery, third degree. He was sentenced to imprisonment for a period of not less than 2 years and 6 months nor more than 5 years on that conviction. Respondent, on November 7, 1949, was convicted in the United States District Court for the Southern District of New York on a plea of guilty to four counts of an indictment charging violation of 26 U.S.C. 2803 (a) and (g), possession and transportation of distilled spirits without tax stamps affixed thereto, and on one count for violation of 18 U.S.C. 88, conspiracy to violate sections 2803 (a), 2803 (g), and 2812 of Title 26, U.S.C. He was sentenced on this occasion to imprisonment for one year on each of the first four counts, sentences to run concurrently, and the imposition of sentence was suspended on count five and respondent placed on probation for 2 years to begin after the expiration of the sentence imposed on the first four counts.
It is conceded by counsel that respondent's conviction in 1927 of the crime of attempted robbery in the third degree is a conviction for a crime involving moral turpitude. The special inquiry officer finds that respondent's conviction in 1949 for conspiracy to violate the Internal Revenue Code, as charged in count five of the indictment, is also a conviction for a crime involving moral turpitude. We agree with the conclusion of the special inquiry officer that moral turpitude is not an element of the offenses set forth in counts one through four of the indictment returned against respondent in 1949 for violation of 18 U.S.C. 2803 (a) and (g). Counsel urges that moral turpitude is not an element of the substantive offenses which serve as the basis of the conspiracy count (one) of said indictment. The only issue before us is to determine whether moral turpitude is involved in the conspiracy charged against the respondent in count five of the indictment returned against him in 1949.
26 U.S.C. 2803, pars. (a) and (g) are set forth in Appendix A.
As a matter of law, a conspiracy to commit an offense involves moral turpitude only when the substantive offense charged therein involves moral turpitude. The fifth count of the indictment returned against respondent in 1949 charges that he violated 18 U.S.C. 88 by conspiring with others "to violate sections 2803 (a), 2803 (g), and 2812, Title 26, U.S.C." Section 88 of Title 18, U.S.C., ( supra), 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.
United States ex rel. Berlandi v. Reimer, 30 F. Supp. 767 (S.D.N.Y., 1939); Mercer v. Lence, 96 F. (2d) 122 (C.C.A. 10, 1938), cert. den. 305 U.S. 611.
The pertinent portion of the indictment is set forth in Appendix B.
18 U.S.C. 88 is set forth in Appendix C.
Section 2812 of Title 26, U.S.C., is set forth in Appendix D.
The count of the indictment here under consideration specifically charges a conspiracy to commit an offense against the United States. It relates in part that respondent, along with others "from on or about the 1st day of June, 1947, and continuously thereafter up to the date of the filing of this indictment * * * did willfully and knowingly conspire, combine, confederate and agree together and with each other and with divers other persons to the Grand Jurors unknown, to commit offenses against the United States * * *." [Emphasis supplied.]
The special inquiry officer finds that fraud is an element of the substantive offenses charged in the four specifications of count five of the indictment ( supra, footnote 3). These offenses are defined by sections 2803 (a), 2803 (g) and 2812 of Title 26, U.S.C. ( supra, footnotes 1 and 5). Relying upon the Supreme Court's decision in the case of Jordan v. DeGeorge, 341 U.S. 223 (1951), the special inquiry officer concludes that respondent has been convicted of "defrauding the United States through the use of used and counterfeited United States Internal-Revenue stamps for distilled spirits" and that this crime involves moral turpitude.
We think the case before us is distinguishable from the case of Jordan v. DeGeorge, supra, because respondent was not convicted of "conspiring to defraud the United States." The test is whether fraud is an essential element of the offense which is the object of the conspiracy. Count five of the indictment ( supra, footnote 3) merely charges respondent with conspiring to commit an offense against the United States. The indictment in the DeGeorge case specifically charged the alien with conspiring with others to violate the Internal Revenue Code by possessing whiskey and alcohol " with intent to sell it in fraud of law and evade the tax thereon." Another specification of the same conspiracy charged DeGeorge and others with removing and concealing liquor " with intent to defraud the United States of the tax thereon" ( Jordan v. DeGeorge, supra, at page 224 of U.S. 341 and pp. 888 and 889 of 95 L. Ed. [Emphasis supplied.]). It is clear, therefore, that DeGeorge was indicted and convicted under that portion of 18 U.S.C. 88 ( supra, footnote 4) which creates the crime of "conspiracy to defraud the United States in any manner or for any purpose." Respondent, on the other hand, was indicted and convicted under that portion of section 88 ( supra) which creates the crime of "conspiracy to commit an offense against the United States."
Braverman v. United States, 317 U.S. 49, 87 L. Ed. 23; United States v. McElvain, 272 U.S. 633, 71 L. Ed. 451.
We also find that the substantive offenses specified in the conspiracy in respondent's case differ materially from those considered by the Supreme Court in the DeGeorge case ( supra). The conspiracy specifications in the DeGeorge case were based upon the substantive offenses defined by 26 U.S.C. (1934 edition), sections 1155 (f), 1440 and 1441. Fraud on the revenue of the United States by a distiller is the essence of the crime defined by section 1155 (f), ( supra, footnote 6). Section 1440 ( supra, footnote 6) defines the crime of possessing "any goods, wares, merchandise," etc., "on which taxes are imposed by law" with intent to sell same in fraud of law or to evade tax. Section 1441 ( supra, footnote 6) defines the crime of concealing property on which a tax has been imposed "with intent to defraud the United States" of said tax.
The pertinent portions of sections 1155 (f), 1440 and 1441 of Title 26, U.S.C. (1934 ed.), are set forth in Appendix E.
The substantive offenses charged in respondent's conspiracy make no reference to fraud on the revenue of the United States. Specification number one relating to that portion of the conspiracy wherein the conspirators are charged with purchasing "used indicia liquor bottles" violates 26 U.S.C. 2803 (a), ( supra, footnote 1), which prohibits the possession, transportation, buying or selling of any distilled spirits unless the container thereof has affixed thereto a revenue stamp evidencing payment of Internal-Revenue taxes. Intent to defraud is not an element of this offense.
Specification number two charges that the conspirators set up an unregistered rectifying plant for the production of distilled spirits. The registration of rectifying plants and distilleries is required by 26 U.S.C. 2812 ( supra, footnote 5). Intent to defraud is not an element of the offense defined by 26 U.S.C. 2812, supra.
Specification number three charges the conspirators with (a) failure "to pay the taxes imposed by law" on the distilled spirits they rectified in their unregistered plant, and (b) with acquiring and possessing "used and counterfeited United States Internal-Revenue stamps for distilled spirits." This specification sets forth the offense defined in that portion of section 2803 (g) which provides a penalty for "any person who violates any provision of this section, or who * * * has in his possession any such * * * counterfeited stamp * * * or who has in his possession any such (used) stamps obtained by him otherwise than as provided in subsection (b), shall on conviction be punished * * *." (Emphasis supplied.) The element of fraud is not a part of the statute.
Subsection (b) of 26 U.S.C. 2803 authorizes the sale of revenue stamps for containers of distilled liquor on which the revenue tax has been paid.
Specification number four charges that as a part of the conspiracy the conspirator "would possess, transport and sell the aforesaid distilled spirits in the aforesaid indicia bottles which would bear the fraudulent tax stamps aforesaid." This is merely a "catch-all" specification and charges violation of that portion of section 2803 (a), ( supra, footnote 1), which prohibits the possession, transportation or sale of distilled spirits unless the container thereof has a revenue stamp affixed thereto evidencing payment of tax. Intent to defraud does not have to be proved to convict under the statute.
The violation of statutes which merely license or regulate and impose criminal liability without regard to evil intent do not involve moral turpitude. The statutes defining the substantive offenses involved in the conspiracy here under consideration are primarily licensing and regulating provisions of the Internal Revenue Code. However, there is one provision, section 2803 (g), ( supra, footnote 1), which does require proof of an intent to defraud. It reads "* * * who, with intent to defraud, falsely makes, forges, alters, or counterfeits any stamp made or used under this section * * *." Respondent, however, was not charged in the indictment with a conspiracy to make, forge, alter or counterfeit the stamps he used. Intent to defraud did not have to be proved to establish his guilt. The willful evasion of a tax, where no proof of specific intent to defraud is required by statute, does not, per se, involve moral turpitude. If fraud is not an essential element of the substantive offense as defined by statute it can not be an element of the conspiracy. Since intent to defraud is not an element of the substantive offenses involved in the conspiracy of which respondent was convicted and since respondent was convicted under that portion of 18 U.S.C. 88 which defines the crime of "conspiracy to commit an offense against the United States," we conclude that respondent is not deportable under section 241 (a) (4) of the Immigration and Nationality Act, in that, after entry he has been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, to wit: attempted robbery, third degree, and conspiracy under 18 U.S.C. 88 to violate 26 U.S.C. 2803 (g).
United States ex rel. Andreacchi v. Curran, 38 F. (2d) 498 (D.C., S.D.N.Y., 1926); Ex parte Saraceno, 182 Fed. 955 (S.D.N.Y., 1910).
United States v. Carrollo, 30 F. Supp. 3 (U.S.D.C., Mo., 1939).
Cf. Braverman v. United States and United States v. McElvain ( supra, footnote 6); Bridges v. United States, 346 U.S. 209, 223, 224; 97 L. Ed. 1557, 1569 (1953).
We have reached the aforestated conclusion mindful that as a matter of fact it is hard to conceive of a situation where two or more individuals conspire with each other to "fail to pay the taxes imposed by law on said distilled spirits" and not have an intent to evade said taxes. However, the Supreme Court in the Bridges case ( supra, footnote 11) established the rule that as a matter of law "intent to defraud" must be an essential element of the substantive offense before a conspiracy to commit the same substantive offense amounts to a conspiracy "to defraud the United States in any manner or for any purpose" (2d clause of 18 U.S.C. 88 as set forth in Appendix C). Under the circumstances, we can not find as a matter of law that the conspiracy here under consideration involves moral turpitude.
Our conclusion is consistent with the special inquiry officer's finding that moral turpitude is not an element of the offenses set forth in the first four counts of the indictment here under consideration. The four counts aforementioned are predicated upon some of the offenses defined in section 2803 (a) and (g) of Title 26, U.S.C., supra. They are also the substantive offenses set forth in specifications 1-3 and 4 of the conspiracy count. Consistent with the Supreme Court's ruling in the Bridges case ( supra, footnote 11), if they did not involve moral turpitude in the first instance the fact that the respondent conspired with others to commit the same offenses would not, per se, render them turpitudinous. The appeal will be sustained.
Order: It is ordered that the appeal be and the same is hereby susstained; the proceedings under the warrant of arrest issued June 21, 1954, are hereby terminated.
APPENDIX A
Section 2803. Stamps for containers of distilled spirits — (a) Requirement. No person shall transport, possess, buy, sell, or transfer any distilled spirits, unless the immediate container thereof has affixed thereto a stamp denoting the quantity of distilled spirits contained therein and evidencing payment of all internal-revenue taxes imposed on such spirits. The provisions of this section shall not apply to — * * * (not pertinent here).
(g) Penalties. Any person who violates any provision of this section, or who, with intent to defraud, falsely makes, forges, alters, or counterfeits any stamp made or used under this section, or who uses, sells, or has in his possession any such forged, altered, or counterfeited stamp, or any plate or die used or which may be used in the manufacture thereof, or any stamp required to be destroyed by this section, or who makes, uses, sells, or has in his possession any paper in imitation of the paper used in the manufacture of any such stamp, or who reuses any stamp required to be destroyed by this section, or who places any distilled spirits in any bottle which has been filled and stamped under this section without destroying the stamp previously affixed to such bottle, or who affixes any stamp issued under this section to any container of distilled spirits on which any tax due is unpaid, or who makes any false statement in any application for stamps under this section, or who has in his possession any such stamps obtained by him otherwise than as provided in subsection (b), shall on conviction be punished by a fine not exceeding $1,000, or by imprisonment at hard labor not exceeding five years, or by both. * * *
APPENDIX B
The Grand Jury further charges:
That from on or about the 1st day of June, 1947, and continuously thereafter up to the date of the filing of this indictment, in the Southern District of New York, J---- D---- and J---- T----, the defendants herein, and V---- E----, named as a co-conspirator but not as a defendant, did willfully and knowingly conspire, combine, confederate and agree together and with each other and with divers other persons to the Grand Jurors unknown, to commit offenses against the United States, to wit, to violate sections 2803 (a), 2803 (g), and 2812, Title 26, United States Code.
1. It was part of said conspiracy that said defendants would purchase used indicia liquor bottles.
2. It was further a part of said conspiracy that said defendants herein would set up a rectifying plant which would not be registered as required by law, and would produce distilled spirits.
3. It was further a part of said conspiracy that the defendants would fail to pay the taxes imposed by law on said distilled spirits, and would acquire and possess used and counterfeited United States Internal-Revenue stamps for distilled spirits.
4. It was further a part of said conspiracy that the defendants would possess, transport and sell the aforesaid distilled spirits in the aforesaid indicia bottles which would bear the fraudulent tax stamps aforesaid.
OVERT ACTS. (It is not necessary to set forth the overt acts).
APPENDIX C
Section 88, Title 18, U.S.C. Conspiracy to commit offense against United States. "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."
APPENDIX D
That portion of section 2812, pertinent here, reads as follows:
Section 2812. Notice of business of distiller or rectifier — (a) Requirements. Every person engaged in, or intending to be engaged in, the business of a distiller or rectifier, shall give notice in writing, subscribed by him, to the collector of the district wherein such business is to be carried on, stating his name and residence, and if a company or firm, the name and residence of each member thereof, the name and residence of every person interested or to be interested in the business, the precise place where said business is to be carried on, and whether of distilling or rectifying; and if such business is carried on in a city, the residence and place of business shall be indicated by the name of the street and number of the building. * * * In case of a rectifier, the notice shall state the precise place where such business is to be carried on, the name and residence of every person interested or to be interested in the business, the process by which the applicant intends to rectify, purify, or refine distilled spirits, the kind and cubic contents of any still used or to be used for such purpose, the estimated quantity of spirits which can be rectified, purified, or refined every twenty-four hours in such establishment, and that said rectifying establishment is not within six hundred feet (or the distance permitted by the Secretary pursuant to law), in a direct line, of the premises of any distillery registered for the distillation of spirits * * *. (The remainder of the section is not pertinent here.)
APPENDIX E
Section 1155 (f), Title 26, U.S.C. (1934 ed.). Tax fraud by distiller. Whenever any person engaged in carrying on the business of a distiller defrauds or attempts to defraud the United States of the tax on the spirits distilled by him, or of any part thereof, he — Forfeiture. Shall forfeit the distillery and distilling apparatus used by him, and all distilled spirits and all raw materials for the production of distilled spirits found in the distillery and on the distillery premises, and — Penalty. Shall be fined not less than $500 nor more than $5,000, and be imprisoned not less than six months nor more than three years.
Section 1440 of Title 26, U.S.C. (1934 ed.). Possession with intent to sell in fraud of law or to evade tax; penalty. Every person who shall have in his custody or possession any goods, wares, merchandise, articles, or objects on which taxes are imposed by law, for the purpose of selling the same in fraud of the Internal-Revenue laws, or with design to avoid payment of the taxes imposed thereon, shall be liable to a penalty of $500 or not less than double the amount of taxes fraudulently attempted to be evaded.
Section 1441 of Title 26, U.S.C. (1934 ed.). Removal or concealment with intent to defraud the revenue — (a) Penalty. Every person who removes, deposits, or conceals, or is concerned in removing, depositing, or concealing any goods or commodities for or in respect whereof any tax is imposed, with intent to defraud the United States of such tax or any part thereof, shall be liable to a fine or penalty of not more than $500.
Paragraph (b) merely provides for forfeiture of the goods, packages or conveyances confiscated.