A-4789121
Decided by Board January 8, 1953
Crimes involving moral turpitude, Federal: Defrauding United States by falsely issuing narcotic prescription (18 U.S.C.A. 72, 494) — Sentence to imprisonment: Public Health Service Hospital at Lexington, Ky.
(1) Defrauding the United States by falsely issuing a narcotic prescription in violation of sections 18 U.S.C. 72 or 494 is an offense involving moral turpitude.
(2) Conviction and judgment of imprisonment followed by confinement to the Public Health Service Hospital at Lexington, Ky., is a sentence to imprisonment within the meaning of the provisions of section 19 of the Immigration Act of 1917.
CHARGE:
Warrant: Act of 1917 — Sentenced more than once after entry for crimes — Defrauding United States Government by falsely issuing narcotic prescription (18 U.S.C.A. 72); defrauding United States Govment by falsely issuing narcotic prescription ( 18 U.S.C.A. 494).
BEFORE THE BOARD
Discussion: On October 9, 1952, this Board entered an order dismissing an appeal from an order of the Acting Assistant Commissioner requiring deportation of the alien on the ground stated above.
The alien has been sentenced to imprisonment for a year or more on two separate occasions as a result of convictions of the crime stated above. On both occasions he served his sentence in the United States Public Health Service Hospital at Lexington, Ky.
This motion for reconsideration is based on the ground that the crime does not involve moral turpitude and on the contention raised for the first time that the alien's sentence and confinement to the hospital at Lexington, Ky., did not constitute a sentence to imprisonment under immigration laws.
The facts and statutes concerned have been fully discussed in previous orders and need not be repeated.
Counsel contends that a finding that the crimes in question involve moral turpitude is erroneous because the act forbidden by the statute is not malum in se.
There is an indication in administrative decisions that part of the test for the existence of moral turpitude in connection with the violation of a law requires the doing of an act which is malum in se. Whether or not the crimes involved herein are malum in se or malum prohibitum and whether the distinction between these categories is used as a test for certain crimes, we find, in precedents no attempt to use such a test where the crime involves fraud or forgery, both factors involved herein. Thus in Jordan v. De George, 341 U.S. 223 (1951), the crime in question was a conspiracy to defraud the United States of taxes on distilled spirits. The dissenting opinion reveals that the alien therein took the position that "the tradition of distinction between crimes mala prohibita and those mala in se will afford a key" as to whether or not moral turpitude was involved. The majority opinion in that case does not even make mention of this contention, finding that a crime in which fraud is an ingredient involves moral turpitude.
Matter of E----, 56063/394 2 IN Dec. 134, 141.
So too, in our precedent involving forgery (38 Opinions of the Attorney General 128), the Attorney General indicated that in violations not so grave as to be considered wrong independently of statute (p. 129), where such violations were accompanied by forgery, the crimes involved moral turpitude (p. 130). He stated in regard to an alien whom he found had uttered a forged certificate of marriage and was therefore inadmissible on the ground that she had committed a crime involving moral turpitude:
Perhaps, looking at the matter in the abstract, one may doubt that her act of tendering the fabricated marriage certificate which had been furnished her was so grave that it should forever debar her from this country with resultant separation of a family or the expatriation of an American citizen. However, she uttered the forged certificate and also signed to the application for a visa a name which was not hers, and the statute vests us with no authority to condone (p. 135).
Where fraud or forgery is involved, it is clear that a finding of moral turpitude is required and we need not inquire as to whether or not the crime is malum prohibitum or malum in se.
Counsel further contends that because the statute would appear to cover the extensive and wide spread operations of Government with respect to "the humblest paper writing employed in the conduct of its business; and each violation without regard to degree" would be an offense involving moral turpitude, we must refrain from finding that the statute is one involving moral turpitude. It would appear that any forgery or uttering of a forged document with intent to defraud under the statute in question would involve moral turpitude. This being so, neither the particular circumstances under which a crime was committed nor the monetary value involved can become factors to be taken into consideration as to whether a crime involving moral turpitude has been committed.
United States ex rel Mylius v. Uhl, 210 F. 860 (C.C.A. 2, 1914); United States ex rel Robinson v. Day, 51 F.(2d) 1022 (C.C.A. 2, 1931); United States ex rel Meyer v. Day, 54 F.(2d) 336 (C.C.A. 2, 1931); United States ex rel Mongiovi v. Karnuth, 30 F.(2d) 825 (D.C.N.Y. 1929); United States ex rel Manzella v. Zimmerman, 71 F.Supp. 534 (D.C.Pa. 1947); United States ex rel Teper v. Miller, 87 F.Supp. 285 (D.C.N.Y.).
United States ex rel Meyer v. Day, 54 F.(2d) 336 (C.C.A. 2, 1931); United States ex rel Rizzio v. Kenney, 50 F.(2d) 418 (D.C.Conn.) (theft of property in the total value of $4); United States ex rel Chartrand v. Karnuth, 31 F.Supp. 799 (D.C.N.Y.) (conviction in Canada of theft of shoes valued at $12); Tillinghast v. Edmead, 31 F.(2d) 81 (C.C.A. 1, 1929) (larceny described in the dissenting opinion as "trifling offenses").
We have in our previous order held that the crime defined involves moral turpitude for the reason that the crime is one of fraud or forgery. With this finding counsel takes issue on two additional points. He is of the opinion that the violation involved is one of a revenue or licensing statute (a violation which would not involve moral turpitude) and he is of the further opinion that the Attorney General's ruling which is relied on as a precedent in our previous order must be limited to cases of forgery in connection with applications for passports or visas.
The contention that conviction was under a narcotic law (a revenue or licensing statute) is clearly without foundation. The convictions in the instant case were under a law which has no connection with revenue or licensing matters. As pointed out by counsel himself, and as set forth in the case cited by him ( Cross v. North Carolina, 132 U.S. 131, 1889) the purpose of the section in question was to protect the Government against the consequences that might result from forgery, alteration or counterfeiting of documents, that have some connection with the Government's business as conducted by its own officers. The contention must be dismissed.
In the Attorney General's opinion, it is clearly indicated that forgery involved moral turpitude when committed contrary to a law which forbade its doing (p. 130). Furthermore, the cases hold that forgery in all its degrees involves an intent to defraud and is thus a crime of moral turpitude. Furthermore, we note the element of fraud is involved and it is now settled that where fraud is a component of a crime, the crime involves moral turpitude ( Jordan v. De George, 341 U.S. 223 (1951) and cases cited therein). We see no reason to change our finding that the crimes in question involve moral turpitude.
United States ex rel Robinson v. Day, 51 F.2d 1022 (C.A. 2); Baer v. Norene, 79 F.(2d) 340 (C.C.A. 9, 1935); Ponzi v. Ward, 7 F.Supp. 736 (D.C.Mass. 1934).
Counsel's contention that the alien's conviction followed by confinement to the United States Public Health Service Hospital at Lexington, Ky., did not constitute a sentence to imprisonment under immigration laws must be dismissed. The law governing the confinement of addicts to the United States Public Health Service Hospital at Lexington, Ky., is found in 42 U.S.C.A. 257 and 259. Confinement to such an institution of an addict sentenced to imprisonment for offenses against the United States is apparently required by law with certain exceptions not applicable herein. The law requires that a prisoner who has been cured shall be transferred to the institution from which he was received or such other institution as may be designated by the Attorney General ( 42 U.S.C.A. 259). It is clear therefore, that, under a judgment to imprisonment, a confinement to the United States Public Health Service Hospital as Lexington, Ky., requiring as it does the continued imprisonment of a cured prisoner in a Federal penitentiary or reformatory is a sentence to imprisonment. The order of the court requires the alien's imprisonment. The confinement of a narcotic addict in the hospital specializing in the treatment of the particular illnesses until he is cured is apparently for the convenience of the Government in handling an administrative and medical problem. Counsel has cited no authority for the specific proposition that confinement to the United States Public Health Service Hospital did not constitute a sentence to imprisonment. The case that is cited by him ( United States ex rel Cerami v. Uhl, 78 F.(2d) 698), involved a minor confined under a State statute which permitted commitment to a house of refuge instead of imprisonment in a State prison or penitentiary. It was held that the minor in the case cited was confined primarily for correctional treatment, the punitive element being relatively insignificant. In the instant case the alie was ordered imprisoned as a punitive matter and his confinement in the hospital was merely in the nature of a stopover on his way to a Federal place of imprisonment. We view the instant case as similar to one where an alien imprisoned in a Federal penitentiary for a period of a year or more, upon commitment, suffers a fracture which requires his confinement to a bed in the prison hospital for the period of his imprisonment. He, we would hold, has been sentenced to imprisonment under the immigration laws.
Upon the motion for reconsideration, nothing has been shown which should cause a change in our decision. The motion will be denied.
Order: It is ordered that the motion for reconsideration be and the same is hereby denied.