A-3181334.
Decided by Board November 23, 1955.
Crime involving moral turpitude — 18 U.S.C. 265 (now 18 U.S.C. 472) — 21 U.S.C. 331, 333 (b) — Suspension of deportation, section 244 (a) (5) of Immigration and Nationality Act.
(1) A conviction on three counts of publishing, uttering, and passing counterfeit Federal Reserve Notes with intent to defraud in violation of 18 U.S.C. 265 (now 18 U.S.C. 472) is conviction of crimes involving moral turpitude.
(2) Conviction on two counts of unlawfully selling and offering for sale oleomargarine not properly labeled with intent to defraud and mislead in violation of 21 U.S.C. 331, 333 (b) is conviction of crimes involving moral turpitude.
(3) Where the indictment under 21 U.S.C. 333 specifically states that respondent sold oleomargarine labeled as butter "with intent to defraud and mislead," the respondent is clearly within subsection (b) of that section and the violation necessarily involves moral turpitude, even though the conviction record does not specify the subsection.
(4) An alien subject to deportation for a criminal offense committed in 1952 is not now eligible for suspension of deportation under section 244 (a) (5) of the Immigration and Nationality Act since he cannot meet the residence or good moral character requirements even though he can establish 17 years continuous physical presence in the United States and good moral character prior to the criminal offense.
CHARGES:
Warrant: Act of 1952 — Section 241 (a) (4) — Convicted of two crimes involving moral turpitude after entry, carnal knowledge girl under age of consent; passing counterfeit money; obtaining money under false pretenses.
Lodged: Act of 1952 — Section 241 (a) (4) — Convicted after entry of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct-uttering and passing counterfeit money (3 counts); unlawfully selling colored oleomargarine or colored margarine with intent to defraud in violation of 21 U.S.C. 331 and 333 (2 counts).
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of a special inquiry officer holding the alien deportable on the above-stated lodged charge. Respondent, a 62-year-old native and citizen of Italy, last entered the United States at New York, New York, in April 1911.
According to the findings of fact in the special inquiry officer's decision of April 28, 1955, respondent is not deportable on the warrant charge, but is subject to deportation on the lodged charge. With this conclusion we agree. However, even though the order of the special inquiry officer in his decision of April 28 lists the alien as deportable on both the warrant and lodged charges, the findings of fact and discussion by the special inquiry officer are correct and controlling.
Respondent was convicted on January 8, 1935, in the United States District Court, District of Rhode Island, on three counts of publishing, uttering, and passing counterfeit $10 Federal Reserve Notes with intent to defraud knowing they were counterfeit, contrary to 18 U.S.C. 265 (now 18 U.S.C. 472). These offenses occurred on three separate occasions and involved three different persons. On January 9, 1935, the alien was sentenced to six months in the Providence County Jail on count one and to three years' probation after the service of the jail sentence on counts two and three.
The statute under which respondent was convicted in 1935 provides as follows:
18 U.S.C. 265. Uttering Counterfeit Obligations or Securities.
Whoever, with intent to defraud, shall pass, utter, publish, or sell, or attempt to pass, utter, publish or sell, or shall bring into the United States or any place subject to the jurisdiction thereof, with intent to pass, publish, utter or sell, or shall keep in possession or conceal with like intent any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be fined not more than $5,000 and imprisoned not more than 15 years. R.S. 5431; Mar. 4, 1909, C. 321, sect. 151, 35 Stat. 1116. [Emphasis supplied.]
Since the statute specifically contains the words "with intent to defraud," the test set out by the Supreme Court in Jordan v. DeGeorge, 341 U.S. 223 (1951), is applicable. In that case, the Supreme Court determined that offenses containing an inherent fraud element involve moral turpitude. Consequently, respondent's conviction under 18 U.S.C. 265 was a conviction for a crime involving moral turpitude.
Furthermore, respondent was convicted on March 15, 1954, on a plea of guilty in the United States District Court, District of Rhode Island, on two counts of unlawfully selling and offering for sale oleomargarine which was not properly labeled, contrary to 21 U.S.C. 331, 333. Count one charged that on May 1, 1952, respondent "with intent to defraud and mislead" sold a number of packages of oleomargarine labeled as butter, in violation of 21 U.S.C. 347 (b) (3) (A), (B) and the Food, Drug, and Cosmetic Act ( 21 U.S.C. 331 (a), 333 (b)). Count two charged that respondent was guilty of the same act on May 21, 1952, "with intent to defraud and mislead." Respondent was sentenced to pay a fine of $100 on each count (or a total of $200) and placed on probation for one year on each count, with the periods to run concurrently.
21 U.S.C. 331. Prohibited Act. (The Food, Drug, and Cosmetic Act of June 25, 1938, as amended.)
The following acts and the causing thereof are hereby prohibited.
(m) The sale or offering for sale of colored oleomargarine or colored margarine, or the possession or serving of colored oleomargarine or colored margarine in violation of subsections (b) or (c) of Section 347 of this Title.
21 U.S.C. 347 (b) (3) (A) relates to the labeling requirements for oleomargarine, while 21 U.S.C. 347 (b) (3) (B) requires that a full and accurate statement of all the ingredients in oleomargarine appear on the label of the package.
* * * * * * *
21 U.S.C. 333. Penalties — Violation of Section 331.
(a) Any person who violates any of the provisions of Section 331 shall be guilty of a misdemeanor and shall on conviction thereof be subject to imprisonment for not more than one year, or a fine of not more than $1,000, or both such imprisonment and fine; but if the violation is committed after a conviction of such person under this section has become final such person shall be subject to imprisonment for not more than three years, or a fine of not more than $10,000, or both such imprisonment and fine.
(b) Notwithstanding the provisions of subsection (a) of this section, in case of a violation of any of the provisions of Section 331, with intent to defraud or mislead, the penalty shall be imprisonment for not more than three years, or a fine of not more than $10,000, or both such imprisonment and fine. [Emphasis supplied.]
While the conviction record does not specifically point out whether respondent was sentenced under 21 U.S.C. 333 (a) or 21 U.S.C. 333 (b), the indictment supplies this information, for it specifically stated that respondent sold packages of oleomargarine labeled as butter in violation of the statute "with intent to defraud and mislead," a direct statutory quote from 21 U.S.C. 333 (b). Clearly this latter statute is controlling.
Since the indictment in the present case specifically stated that respondent sold oleomargarine labeled as butter "with intent to deceive and mislead," respondent was clearly within the terms of 21 U.S.C. 333 (b), rather than subsection (a).
While the word "mislead" in 21 U.S.C. 333 (b) has not been considered judicially, the concept of misleading has been considered in relation to incorrect food and drug labeling. In that connection, the United States Supreme Court stated in United States v. Ninety-five Barrels of Vinegar, 265 U.S. 438, 68 L. Ed. 1094 (1924):
The statute is plain and direct. Its comprehensive terms condemn every statement, design and device which may mislead or deceive. Deception may result from the use of statements not technically false or which may be literally true. The aim of the statute is to prevent that resulting from indirection and ambiguity, as well as from statements which are false. It is not difficult to choose statements, designs and devices which will not deceive. Those which are ambiguous and liable to mislead should be read favorably to the accomplishment of the purpose of the act. The statute applies to food, and the ingredients and substances contained therein. It was enacted to enable purchasers to buy food for what it really is. (pp. 442, 443)
Since the Supreme Court refers specifically to the aim of the predecessor of the Food, Drug, and Cosmetic Act of 1938, this judicial language is pertinent in the instant situation. Counsel argues that the oleomargarine offense is only mala prohibita and therefore not a crime involving moral turpitude. Because the courts consider that false or misleading representations in labeling, forbidden by the Food, Drug, and Cosmetic Act, connote a purposeful intent to deceive, we conclude that a violation of 21 U.S.C. 333 (b) necessarily involves "intent to defraud or mislead" (as the statute is phrased) or "intent to deceive and mislead" (in the words of the indictment). See United States v. 7 Jugs, etc. of Dr. Salsbury Rakos, 53 F. Supp. 746 (D. Minn., 1944); United States v. 62 packages, etc. of Marmola Prescription Tablets, 48 F. Supp. 878 (W.D. Wis., 1943), aff'd. 142 F. (2d) 107 (C.C.A. 7, 1944), cert. den. 323 U.S. 731, 89 L.Ed. 587 (1944).
Moral turpitude has been defined as an act of baseness and depravity which is per se morally reprehensible and intrinsically wrong or malum in se ( Ng Sui Wing v. United States, 46 F. (2d) 755 (C.C.A. 7, 1931); 39 Op. Atty. Gen. 95 (1937)). Hence, the nature of the act itself and not its statutory prohibition constitutes the test of moral turpitude ( United States ex rel. Manzella v. Zimmerman, 71 F. Supp. 534 (D.C., E.D. Pa., 1947)).
Since it has been determined that 21 U.S.C. 333 (b) contains an inherent intent to deceive or mislead and because moral turpitude inheres in the criminal intent, we conclude that the offenses for which respondent was convicted in 1954 were inherently wrong and morally reprehensible, not merely prohibited by statute of recent origin. Therefore, the offenses were crimes involving moral turpitude. Cf., Matter of B----, A-8437852, Int. Dec. No. 718 (B.I.A., August 26, 1955). See also Matter of B----, A-4678936, 5 IN Dec. 29 (B.I.A., A.G., 1952).
In relation to the warrant charge, there remains the question of whether any of the offenses arose out of a "single scheme of criminal misconduct," as the words are used in section 241 (a) (4) of the act of 1952. Responsive to this issue, the Board recently stated:
The question is whether a conviction for two offenses of income tax evasion arise out of a single scheme of criminal misconduct, as the words are used in section 241 (a) (4) of the act of 1952. With regard to the words "single scheme of criminal misconduct," the legislative history of the 1952 act is silent as to which specific persons the phrase was intended to include.
Simply because an alien commits a crime and later repeats this offense the conclusion does not follow that the offenses were part of a single scheme, even though the crimes were similar. If each criminal act was a complete and distinct offense for which the alien was convicted, repetition of the particular crime would generally not constitute a single scheme. Robbery involving separate persons at different times, false pretenses involving distinct offenses, forgery and uttering of different checks at separate times, after conviction, have been held as not arising out of a single scheme of criminal misconduct.
On the other hand, we feel that a single scheme of criminal misconduct is present, if in the performance of one unified act of criminal misconduct, several criminal offenses (for example, breaking and entering followed by larceny or an attempt to escape after an assault) are committed ( Matter of J----, A-3203990, Int. Dec. No. 656 (BIA, 1954)).
Since each of respondent's acts of uttering counterfeit bills, mentioned in separate counts of the indictment, constituted separate and distinct criminal offenses, were committed on two occasions and involved different persons, we conclude that the rule in Matter of J---- dictates that these offenses did not arise out of a single scheme of criminal misconduct. Similarly, respondent's two acts of selling improperly labeled oleomargarine involved two different counts of the indictment, committed on separate occasions. Under the rule in Matter of J----, these offenses also did not arise out of a single scheme of criminal misconduct. For this reason, the warrant charge is sustained.
The cases cited by counsel in his brief arose under a predecessor statute and are no longer controlling, for the phrase "not arising out of a single scheme of criminal misconduct" did not appear in the immigration statutes prior to the Immigration and Nationality Act.
Counsel contends that between January 9, 1935 and 1952, respondent had 17 years' continuous physical presence in the United States and good moral character; that his deportation would also cause serious economic detriment to his naturalized citizen wife, citizen son, and himself, because he is 62 years old, not in good health, has 44 years' residence in this country, would be a stranger to his native Italy, where he has no close relatives, and would be unable to earn a living. Therefore, counsel feels that respondent is eligible for relief through suspension under section 244 (a) (5). In this connection, we wish to point out that section 244 (a) provides as follows.
As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who — * * *
(5) is deportable under paragraph (4), * * * of section 241 (a) for an act committed or status acquired subsequent to such entry into the United States * * *; has been physically present in the United States for a continuous period of not less than ten years immediately following the commission of an act, or the assumption of a status, constituting a ground for deportation, and proves that during all of such period he has been and is a person of good moral character; * * *. [Emphasis supplied.]
Since respondent is subject to deportation for a criminal offense committed in 1952, he does not fulfill either the residence or good moral character requirements set out in section 244 (a) (5) and is, consequently, ineligible for such relief. The appeal is accordingly dismissed.
Order: It is hereby ordered that the appeal be dismissed.