A-2735326
Decided by the Board September 2, 1953
Crime involving moral turpitude — Conspiracy to unlawfully and knowingly transport a person in interstate commerce who had been held for ransom.
The crime of conspiracy to unlawfully and knowingly transport a person in interstate commerce who had been held for ransom is a crime involving moral turpitude since it partakes of the immoralities inherent in the characteristics of true kidnaping, and denotes and act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.
CHARGE:
Warrant: Act of 1917 — Crime within 5 years — Conspiracy to unlawfully and knowingly transport a person in interstate commerce who had been held for ransom (18 U.S.C. 408 (a)).
BEFORE THE BOARD
Discussion: The case comes forward on appeal from the order dated July 28, 1953, of the special inquiry officer, ordering the respondent deported on the charge stated in the warrant of arrest.
The record relates to a native and citizen of Italy, 53 years old, male, who last entered the United States at the port of New York on June 15, 1934 ex-SS. Berengaria and was admitted for permanent residence upon presentation of a reentry permit. He had first entered the United States for permanent residence at the port of New York on July 5, 1923, and has since resided in this country except for an absence for approximately 2 months to Italy in 1934. On December 13, 1951 in the District Court of the United States for the Southern District of New York, the respondent was convicted on his plea of guilty to count 2 of an indictment charging conspiracy to unlawfully and knowingly transport in interstate commerce a person unlawfully kidnaped and held for ransom, committed August 1934 and was sentenced to imprisonment for a term of 2 years.
In the brief submitted in connection with the appeal counsel makes the following contentions: (1) That the crime is not one involving moral turpitude; (2) that the conviction is a nullity and invalid to support a deportation charge; and (3) that in the alternative, the Board stay further proceedings until a decision has been handed down on the respondent's latest appeal to the Circuit Court of Appeals for the Second Circuit and that pending appeal he be released on reasonable bail. The second and third contentions raised by counsel may be disposed of readily. As to the former, the proper forum to test or challenge the validity of a conviction is in the courts and not before this Board; and as to the latter contention, the questions of stay of deportation and release on bail pending decision of the appeal to the Second Circuit are administrative matters within the jurisdiction of the district director and the Commissioner. There remains to be resolved the first contenton raised by counsel to wit: Whether the crime of which respondent has been convicted involves moral turpitude.
The statute on which the respondent was convicted, popularly known as the Federal Kidnaping Act and sometimes referred to as "The Lindbergh Law," provides as follows:
18 U.S.C., 1940 Ed., §§ 408a, 408c (June 22, 1932, ch. 271, §§ 1, 3, 47 Stat. 326; May 18, 1934, ch. 301, 48 Stat. 781, 782).
§ 408a. Whoever shall knowingly transport or cause to be transported, or aid or abet in transporting, in interstate or foreign commerce, any person who shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away by any means whatsoever and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall, upon conviction, be punished (1) by death if the verdict of the jury shall so recommend, provided that the sentence of death shall not be imposed by the court if, prior to its imposition, the kidnaped person has been liberated unharmed, or (2) if the death penalty shall not apply nor be imposed the convicted person shall be punished by imprisonment in the penitentiary for such term of years as the court in its discretion shall determine: * * *.
§ 408c. If two or more persons enter into an agreement, confederation, or conspiracy to violate the provisions of sections 408a and 408b of this title, and do any overt act toward carrying out such unlawful agreement, confederation, or conspiracy, such person or persons shall be punished in like manner as provided for by said sections.
The case of Chatwin v. United States, which reversed a conviction under the Federal Kidnaping Act, contains an interesting and illuminating analysis of the purpose of this statute. We feel it appropriate to quote pertinent portions of the opinion delivered by Mr. Justice Murphy:
The act by its own terms contemplates that the kidnaped victim shall have been (1) "unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted or carried away by any means whatsoever" and (2) "held for ransom or reward or otherwise." * * *
The act of holding a kidnaped person for a proscribed purpose necessarily implies an unlawful physical or mental restraint for an appreciable period against the person's will and with a willful intent so to confine the victim. * * *
This statute was drawn in 1932 against a background of organized violence. 75 Cong. Rec. 13282-13304. Kidnaping by that time had become an epidemic in the United States. Ruthless criminal bands utilized every known legal and scientific means to achieve their aims and to protect themselves. Victims were selected from among the wealthy with great care and study. Details of the seizures and detentions were fully and meticulously worked out in advance. Ransom was the usual motive. "Law enforcement authorities, lacking coordination, with no uniform system of intercommunication and restricted in authority to activities in their own jurisdiction, found themselves laughed at by criminals bound by no such inhibitions or restrictions * * *. The procedure was simple — a man would be kidnaped in one State and whisked into another, and still another, his captors knowing full well that the police in the jurisdiction where the crime was committed had no authority as far as the State of confinement and concealment was concerned." * * *
It was to assist the States in stamping out this growing and sinister menace of kidnaping that the Federal Kidnaping Act was designed. Its proponents recognized that where victims were transported across State lines only the Federal Government had the power to disregard such barriers in pursuing the captors. H. Rept. 1493 (72d Cong., 1st sess.); S. Rept. 765 (72d Cong., 1st sess.). Given added impetus by the emotion which gripped the nation due to the famous Lindbergh kidnaping case, the Federal statute was speedily adopted. See 75 Cong. Rec. 5075-5076, 13282-13304. Comprehensive language was used to cover every possible variety of kidnaping followed by interstate transportation. Armed with this legislative mandate, Federal officials have achieved a high and effective control of this type of crime.
But the broadness of the statutory language does not permit us to tear the words out of their context, using the magic of lexigraphy to apply them to unattractive or immoral situations lacking the involuntariness of seizure and detention which is the very essence of the crime of kidnaping. * * * In short, the purpose of the act was to outlaw interstate kidnapings rather than general transgressions of morality involving the crossing of State lines. * * *
Were we to sanction a careless concept of the crime of kidnaping or were we to disregard the background and setting of the act the boundaries of potential liability would be lost in infinity. A loose construction of the statutory language conceivably could lead to the punishment of anyone who induced another to leave his surroundings and do some innocent or illegal act of benefit to the former, state lines subsequently being traversed. The absurdity of such a result, with its attendant likelihood of unfair punishment and blackmail, is sufficient by itself to foreclose that construction.
The second count of the indictment upon which the respondent was convicted upon his plea of guilty charges a conspiracy to unlawfully and knowingly transport in interstate commerce a person who had been held for ransom. The offense, as established by the record of conviction upon a plea of guilty, partook of the immoralities inherent in the characteristics of true kidnapings the very menace of which it was the purpose of the Federal Kidnaping Act to combat, contain and defeat. Conspiracy to commit a certain crime involves moral turpitude if the basic crime involves moral turpitude. The crime of transporting in interstate commerce, unlawfully and knowingly of a person for the purpose of ransom involves an act which grievously offends the moral code of mankind in its inherent nature, and denotes an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man. We therefore conclude that the crime of which respondent has been convicted involves moral turpitude and that the ground of deportation set forth in the warrant of arrest is sustained.
Matter of S----, A-5530239, 2 IN Dec. 559 (Atty. Gen., 1947).
Ng Sui Wing v. United States, 46 F. (2d) 755; Coykendall v. Skrmetta, 22 F. (2d) 120 (C.C.A. 5, 1927).
Order: It is ordered that the appeal be and the same is hereby dismissed.