A-1656995
Decided by Central Office May 10, 1951
Crime involving moral turpitude — Falsification of a commercial document — Philippine Islands (1915).
Stipulation — Principles of law applicable — Manner in which it may be set aside.
(1) Were the subject's conviction in the Philippine Islands in 1915 for violation of articles 301 and 300 of the Penal Code of the Philippine Islands of 1911, it appears these statutes do not require a criminal intent of such nature as to warrant a finding that a conviction thereunder is for a crime involving moral turpitude.
(2) The general principles of law applicable to stipulations are well established. A stipulation of fact is binding, with certain exceptions when it may be set aside. The procedure to set aside a stipulation is summary in nature. Under the circumstances in this case, it was not found reversible error not to have done so, but the better practice would have been for the hearing examiner to have formally notified the alien and his representative that the stipulation was to be vacated.
BEFORE THE CENTRAL OFFICE
Discussion: The record relates to a 59-year-old married male, a native and citizen of the Philippine Islands.
The record shows that on April 13, 1950, a stipulation was entered into between the respondent and the examining officer which stated in part that the respondent had establishd a residence in the United States prior to May 1, 1934, which he has never abandoned.
The respondent has testified that he first entered the United States in August 1923 at Honolulu, T.H. In the course of the first examination in the case, on April 13, 1950, he testified that he had resided continuously in this country since that time with the exceptions of brief periods when he sailed abroad in pursuit of his calling as a seaman. He last entered the United States on September 16, 1945, upon a return voyage as a seaman, intending to remain permanently in this country. He was not in possession of an immigration visa at the time of his entry. The record shows that the respondent was married to a citizen of the United States on September 7, 1924. They have one citizen child, born in 1925. In addition there is a grandchild whom the respondent is supporting.
The alien testified further that on May 7, 1915, he was convicted in the Philippine Islands for forgery of public documents receiving a total sentence of 12 years, 1 day and 1,250 pesos fine; that the documents in question were checks. He stated that at the time the offense occurred he was working at a sugar plantation in Manila, Philippine Islands, as a cashier; that he had the duties of a cashier, paying employees and bills that were presented to him. The checks of the company were signed in blank and he had the authority to fill in the amount that he needed to pay. He testified that on two particular checks he filled them out in the sum of 19,000 pesetas — "and taking the money." He further testified "In my heart I did not do it but in the court it said I was guilty. I don't remember to what person or persons they were to be paid." He admitted that he pleaded guilty to the charge. He stated that he did not actually receive the 19,000 pesetas from these two cashed checks. He testified that he served about 9 years, at the expiration of which time he was granted a pardon by the Governor General of the Philippine Islands.
In this latter connection there is contained in the record a copy of a letter written by the Governor General of the Philippine Islands on March 19, 1923, wherein it is stated that the unexecuted portions of the sentence of the respondent was thereby remitted on condition that he would leave the Philippine Islands never to return thereto; that should the condition stated therein be violated by the prisoner, the sentence imposed upon him should again be in full force and effect.
The record shows that the alien was also arrested in 1939 in the United States on a charge of carrying a concealed weapon. He was sentenced to 60 days imprisonment for this offense and served 45 days of this term. With respect to this offense he testified that he carried the gun for his protection while carrying home his salary from his employment in an oil field.
The record shows that in 1947 the alien petitioned for naturalization. In connection with this petition he failed to disclose his prior arrests. He testified that he did not conceal the arrests intentionally; that he did not remember them at the time. There is further evidence of record that in 1945 he was employed by the Post Office Department in San Francisco, Calif., and that at that time he also failed to reveal his arrests. The alien has testified that in 1910 and 1911 he lived in the Philippine Islands with a woman out of wedlock; that he followed her to Italy for a few months in 1912 and lived with her in Italy; that he had two children as a result of his relations with her, one of them born in the Philippine Islands and the other in Italy. He stated that the above-mentioned "falsification of documents" occurred just prior to his leaving the Philippine Islands to follow the woman in question to Italy and that he was arrested for the offense in Italy and brought back to the Philippine Islands for trial. He has not been in Italy since 1912.
In a continuation of the hearing on April 20, 1950, the respondent submitted proof of residence in the United States in 1936 and subsequent thereto. He further testified in the course of this hearing, that, following his entry into the United States in 1923 he remained in this country until 1927 when he sailed to Colon, Panama, and that he never returned to the United States until 1936; that from 1927 to 1936 he sailed as a merchant seaman out of Colon, Panama, making no entries into the United States as a merchant seaman during that time. He testified that during the period of 1927 to 1936 or 1937 his wife lived in Nicaragua and not in the United States, that their child was left in the United States with an aunt during this period. He stated that he based his claim of continued residence in the United States during this period solely on the fact that he believed that the Panama Canal was American territory and that it was for this reason that he stated that he had had no absences since 1923 in filling out his petition for naturalization. He testified that he has continued to reside in the United States since 1936 with the exception of further brief absences in pursuit of his calling as a seaman.
He testified further with respect to the conviction in 1915 as to his testimony "In my heart I did not do it, but in the court it said I was guilty;" that "I did not do it myself — I did not do it." He admitted that he pleaded guilty to the offense, but in answer to the question whether he took the money in question, stated that he "did not spend anything of the money;" that "I got no money — that much" that he did not use any part of the 19,000 pesos in question for his own benefit; that he was advised to plead guilty by his attorney and that he did not take any money.
The record shows that it has not been possible to obtain certified copies of the information and decision in the criminal proceedings in the Philippine Islands. However, there are made a part of the record copies of two orders of the judge of the first instance of Manila, sentencing the respondent to imprisonment for the crime of "falsification of a commercial document" on two separate charges for 6 years and 1 day each, the term of imprisonment for the first charge to begin June 16, 1915, and for the second charge to run from the completion of the sentence of the first charge.
The penal code of the Philippine Islands of 1911, in effect at the time of the respondent's conviction in 1915, provides: Chapter IV — The Falsification of Documents, section I — Falsification of Public, Official, and Commercial Documents and Telegraphic Dispatches, article 301:
Any private individual, who shall commit any of the falsifications enumerated in the next preceding article in any public or official document, letter of exchange, or other commercial document, shall suffer the penalties of Presidio Mayor and be fined in a sum not less than 1,250 and not more than 12,500 pesetas.
Article 300 provides:
The penalty of Cadena Temporal and a fine in the sum of not less than 1,250 and not more than 12,500 pesetas shall be imposed upon any public officer, who, by taking advantage of his official position, shall be guilty of falsifications:
1. By counterfeiting or imitating any handwriting, signature or rubric.
2. By causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate.
3. By attributing to persons who have participated in an act or proceeding statements other than those in fact made by them.
4. By making untruthful statements in a narration of facts.
5. By altering true dates.
6. By making any alteration or intercalation in a genuine document which changes its meaning.
7. By issuing in authenticated form a document purporting to be a copy of an original document when no such original exists, or by including in such a copy a statement contrary to, or different from that of the genuine original.
8. By intercalating any instrument in a protocol, registry or official book.
The remaining portion of article 300 deals with the penalty for any of the foregoing offenses being committed by an ecclesiastical minister. The remaining portion of section I, similarly, appears to have no relevancy on the facts appearing in the instant case. Section II of chapter IV relates to the falsification of private documents. Article 304 thereunder provides that:
Any person who, to the damage of another, or with the intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in article 300 shall suffer the penalty of Presidio Correccional in its minimum and medium degrees and be fined in a sum not less than 625 and not more than 6,250 pesetas.
The only other provision in the penal code in effect at the time of the respondent's conviction, which could by any means be deemed to have any relevance to the conviction on the basis of the facts appearing of record, is under section II of the chapter dealing with frauds. That section bears the title — "Swindling and other deceits." Article 534 thereof provides:
Any person who shall defraud another in the substance, quantity, or quality of anything which he shall deliver the latter by virtue of an obligation to do so shall suffer:
1. The penalty of Arresto Mayor in its minimum and medium degrees, if the fraud shall not exceed 250 pesetas.
2. A penalty ranging from Arresto Mayor in its medium degree to Presidio Correccional in its minimum degree when the fraud is not less than 250 and not more than 6,250 pesetas.
3. The penalty of Presidio Correccional in its minimum and medium degrees, when the fraud exceeds 6,250 pesetas.
Article 535 provides: The penalties prescribed by the next preceding Article shall be imposed upon:
1. Any person who shall defraud another by the use of any fictitious name, or by falsely pretending to possess any power, influence, qualification, property, credit, agency, or business, or by means of any similar deceit other than those hereinafter enumerated.
* * * * * * *
5. Any person who, to the prejudice of another, shall convert or misappropriate any money, goods, or other personal property received by such person for safekeeping, or on commission, or for administration, or under any other circumstances giving rise to the obligation to make delivery of or to return the same, or shall deny having received such money, goods, or other property.
6. Any person who shall commit a fraud by writing any document above the signature in blank of another, to the prejudice of the latter, or of any third person.
* * * * * * *
When the same offense is committed without intent to defraud, the person guilty thereof shall be fined from 325 to 3,250 pesetas.
It will be noted that copies of the orders committing the respondent to imprisonment indicate that the two charges arose from a conviction for the crime of falsification of a commercial document. Copies of the information and decision in the criminal proceedings are not available. The foregoing orders of commitment are the only documents of record purporting to reflect officially the exact crime of which the respondent was convicted. The pertinent provision of the Philippine Penal Code defining that offense is article 301, as correlated with article 300. Article 304 relates to the "Falsification of Private Documents" and does not appear to be relevant. Article 534 relates to various offenses which would be included within the crime of embezzlement as understood in this country. However, nowhere in that article is the term "Falsification of Commercial Documents" used. It must be assumed from an examination of the above-cited provisions of the penal code, and of a study of the penal code in its entirety, that the respondent's conviction could only have occurred under article 301 and article 300 of the penal code.
An examination of article 301 indicates that it merely sets forth the penalty and makes reference to the commission of any of the falsifications enumerated in article 300. In itself, article 301 makes no reference to a criminal intent. The question presented is whether, as defined by article 300, the offense was one necessarily involving a criminal intent, and moral turpitude, so as to warrant deportation for a conviction of the violation thereof. A reading of the eight subdivisions of article 300 makes it apparent that a criminal intent is nowhere made an element of the offense. In this connection, in Weems v. United States ( 217 U.S. 349, 363), involving a conviction of a public official on a charge of falsifying a cashbook, the conviction occurring under article 300, the court stated "A false entry is all that is necessary to constitute the offense." The court went on to point out that whether an offender against the statute injures anyone by his act or intends to injure anyone is not material. It is true that the discussion in that case had relation to an offense by a public official, and the falsification of a public document as distinguished from a commercial document. However, it is significant in an analysis of the statute in question, as indicating that the statute does not require a criminal intent of such nature as to warrant a finding that a conviction under either article 301 or 300 is a conviction for a crime involving moral turpitude. In view of the foregoing, we are unable to sustain the charges based on the offense committed in 1915 in the Philippine Islands.
The remaining question concerns the stipulation entered into between the respondent and this Service wherein it was agreed for the purpose of the proceedings that the respondent had established a residence in the United States prior to May 1, 1934, which he never abandoned. Despite this stipulation, the examining officer, with the consent of the hearing examiner, questioned the respondent at length with respect to absences from the United States subsequent to May 1, 1934, and lodged a charge under the Immigration Act of 1924 predicated on evidence thus obtained of absences subsequent to May 1, 1934, and reentry as an immigrant thereinafter.
The general principles of law applicable to stipulations are well established. Thus, in the absence of fraud, mistake, or imposition, stipulation admitting or agreeing on the existence of designated facts for the purpose of the trial are binding and conclusive upon the parties as to the facts so designated ( Schmertz Wire Glass Company v. Continuous Press Glass Company, 216 Fed. 828), as long as the stipulation stands. They are binding upon the court as well as on the parties ( Haese v. Heitzeg, 159, Cal. 569, 114 P. 816). The rule that the parties to a stipulation are bound thereby has been held to apply to the Federal Government as well as to individuals ( Hackfeld Company v. U.S., 197 U.S. 442). The rule has been otherwise put that a stipulation as to a fact "permits the fact to be taken for granted by the judge, the jury, and the other party, for the purpose of the litigation in hand, and thus precludes controverting it either by evidence or by argument" (Wigmore, Code of Evidence, 1935, vol. IX, sections 2584, 2590, and (3d Ed. 1942.) sec. 3131). Stipulations in administrative proceedings have the same general effect as in judicial proceedings ( Federal Trade Commission v. A.E. Staley Manufacturing Company, 324 U.S. 746, 758 ff: Commissioner of Internal Revenue v. West Production Company, 121 F. (2d) 9).
However, a stipulation involving an interpretation of a statute ( Salomon v. United States, 7 Cust. A. 5), or which affects the interest of individuals, which cannot be ascertained in advance of the adjudication of the cause ( In re: Dardis, 135 Wis. 457), is invalid. Also, the general rule that stipulations admitting the existence of facts for the purpose of the trial, are conclusive on the parties, does not apply where it appears from the manner in which the case was tried that the stipulation was ignored (60 C.J. 68). More generally stated, the rule is that while it is the policy of the court to enforce stipulations, unless good cause is shown for not doing so, nevertheless, stipulations will not be enforced under all circumstances. The court in its discretion may set aside a stipulation on numerous grounds, such for instance, as fraud, undue influence, collusion, mistake, false statement innocently made, inadvertence or improvidence in making the stipulation, and on other grounds (Wigmore vol. IX (3d Ed.), sec. 2590). The rule has been otherwise put that stipulations are under the control and subject to the discretion of the court ( Humphries v. Shapiro, 175 N.Y.S. 426), which has power to relieve the parties therefrom upon proper application and assuring a sufficient cause, on such terms as will meet the justice of a particular case. Whether or not a stipulation should be set aside rests in the discretion of the court, and requires an extraordinary exercise of its powers, which can be allowable and proper only when it is made clear that it is necessary to prevent injustice ( Moffitt v. Jordan, 127 Calif. 628, 60 P. 175). A stipulation as to the existence of certain facts may be set aside where it was induced by false representation as to material facts, the falsity of which was unknown to the person making them, although there was no fraud or wrongful intent to defraud or deceive ( Amsinck and Company v. Springfield Grocer Company, 7 F. (2d) 855). However, where there was no mistake of fact, but merely a lack of the full knowledge of the facts, which was plainly due to failure to exercise due diligence to ascertain them, this did not constitute a ground for relief against a stipulation ( Di Donato v. Rosenberg, 245, N.Y.S. 675, 230 App. Div. 538).
The matter of interpretation of stipulations has been before the Federal courts on numerous occasions. The case of American Food Products Company v. United States (73 C. Cls. 526), holds that where in the trial of a case, evidence adduced throws grave doubt upon a stipulation entered into by the parties and justice requires that the stiuplation be set aside, the court will so order. The case of Grissinger v. United States (77 C. Cls. 106, certiorari denied, 290 U.S. 676), holds that an erroneous stipulation of fact by the parties to a suit may be disregarded and the case considered and determined upon the facts disclosed by the record. To the same effect, it has been held that the Court of Claims is not bound by a stipulation of parties, in an action brought by a corporation to recover an income and profits tax paid by the company, to the effect that the plaintiff and its subsidiary corporations filed a consolidated return for the tax year, where the stipulation was contrary to the fact in evidence ( Wilson and Company v. United States, 15 F. Supp. 332).
With respect to the manner in which a stipulation may be set aside, the proceeding to set aside a stipulation is summary in nature, usually determined upon submission of affidavits and counteraffidavits of the parties to the stipulation ( Beaumont Pasture Company v. Preston, 65 Texas 448), or on motion to it ( American Food Products Co. v. U.S., 73 C. Cls. 526). Where the mistake alleged as a ground in the stipulation is apparent without any further proofs, no formal filing of affidavits is necessary ( Levy v. Sheehan, 28 P. 748, 3 Wash. 420). As indicated above, the court may on its own initiative in the course of a proceedings vacate a stipulation in certain circumstances, such as fraud or when inadvertently and mistakenly agreed to and justice would be impeded if the stipulation were adhered to ( American Food Products v. United States, supra).
It is noted that the instant proceeding was conducted under the Administrative Procedure Act. The respondent was not represented by counsel but does appear to have had a representative from the Philippine consulate general. The Government was represented by an examining officer. The hearing was held before a hearing examiner whose position was analogous to that of the judge in a duly constituted court. As noted above, stipulations in administrative proceedings have the same general effect as before a court of law ( Commissioner of Internal Revenue v. West Production Company, supra). The foregoing discussion of the applicable law indicated that while stipulations are generally binding upon the parties, they can be set aside by the court under certain circumstances. One such circumstance would be where the stipulation was inadvertently and mistakenly agreed to and where justice would be impeded if either party were held strictly to the stipulation ( American Food Products v. United States, supra).
In the course of the instant hearing evidence was introduced in the form of the alien's testimony, which indicated that the alien was in the United States in violation of the Immigration Act of 1924. This fact does not appear to have been known to the examining officer at the time that the above stipulation was entered into, nor is there anything of record to indicate that it should reasonably have been known at that time. It appearing from the evidence introduced that the fact stated in the stipulation as to continuous residence since prior to May 1, 1934, was in manifest error, and that a further violation of the immigration laws of the United States was indicated, it rested within the sound discretion of the hearing examiner to declare the stipulation vacated. He appears to have taken no formal action to effect such a vacating of the stipulation. However, his action in permitting the continuation of the alien's examination with a view to introduction into the record of further evidence bearing on the documentary charge, and thereafter permitting the lodging of the additional charge, was clearly tantamount to a vacating of the stipulation.
Admittedly, it would have been better practice for the hearing examiner to have formally notified the alien and his representative to this effect. However, we find no authority that such notification is essential, or that the failure to deliver such a notification constitutes reversible error. In this connection we note that neither the alien nor his representative interposed any objection to the line of questioning developing the further evidence to sustain a charge based on entry without documents, and that at no time was the stipulation pleaded as a bar to the introduction of the evidence, the lodging of the charge or the finding of deportability based upon this charge, although it was manifest that those actions were all contrary to the burden of the stipulation. There would appear to have been a complete acquiescence on the part of the alien and his representative to a waiver and vacating of the stipulation. Under these circumstances we find that the introduction of evidence contrary to the terms of the stipulation and the lodging of a charge based upon the evidence so adduced, was not reversible error.
The evidence of record fully sustains the charge that at the time of his last entry, on September 16, 1945, the alien was an immigrant not in possession of an immigration visa, and not exempted from the presentation thereof.
Upon consideration of the entire record, the findings of fact and conclusions of law of the hearing examiner as to deportability are adopted with the following amendments:
C.L. (1) That under sections 19 and 20 of the act of February 5, 1917, the respondent is not subject to deportation on the ground that he has been convicted of a felony or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Falsification of a commercial document (two charges).
C.L. (2) That under sections 19 and 20 of the act of February 5, 1917, the respondent is not subject to deportation, in that, he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Falsification of a commercial document (two charges).
With reference to the question of discretionary relief, it appears that the alien has a United States citizen wife whom he married in 1924. He has a citizen child and is responsible for the support of a grandchild. He appears to have resided continuously in the United States since 1936. He has no criminal record other than as set forth above.
It is noted that in the petition for naturalization which he filed in 1947, and in the first hearing under the present proceedings, the alien failed to disclose his absence from the United States from 1926 to 1936. He also failed to reveal his arrest record in connection with his application for naturalization and also, in 1945, in connection with his employment by the Post Office Department failed to disclose his arrest record. His explanations of these failures to disclose the true facts are not altogether credible. In view of these factors, we are not disposed to consider maximum discretionary relief.
However, as the husband of a United States citizen by marriage occurring prior to January 1, 1948, he would appear to be eligible for the issuance of a nonquota immigration visa. His close family ties in the United States, long residence, and the absence of any serious criminal record since 1915, justify a grant of the privilege of departing voluntarily, coupled with preexamination. In order that the alien may avail himself of this relief we will also grant an advance exercise of the 7th proviso to section 3 of the Immigration Act of 1917 to permit his return when in possession of appropriate documents, notwithstanding possible inadmissibility as one who may admit the commission of crimes involving moral turpitude; namely, any offense arising from the misappropriation of funds, Philippine Island, 1915, and perjury in connection with his petition for naturalization, his application for employment by the Post Office Department in San Francisco in 1945 and in these proceedings.
Order: It is ordered that an order of deportation be not entered at this time but that the alien be required to depart from the United States, without expense to the Government, to any country of his choice within 60 days after notification of decision, conditioned upon arrangements being made with the local immigration office for verification of departure.
It is further ordered that preexamination be authorized.
It is further ordered that if the alien applies for admission into the United States within 3 months after his authorized departure he be admitted under the 7th proviso to section 3 of the Immigration Act of 1917, if otherwise admissible than as one who may be deemed to have been convicted of or to have admitted the commission of crimes involving moral turpitude; namely, any offense arising from misapppropriation of funds, Philippine Islands, 1915 and perjury, in connection with his naturalization proceedings, 1947, his application for employment by the Post Office Department, San Francisco, 1945, and in these proceedings, subject to revocation in the discretion of the Attorney General after hearing, if the alien subsequently commits any offense.