A-4048121
Decided by Central Office August 13, 1948
Crime involving moral turpitude — Passing "bad" checks in violation of article 4 of the Law of August 12, 1926 (France); penalty under section 405 of the Penal Code of France — Presence of "intent to defraud".
The offense of passing "bad" checks in violation of article 4 of the Law of August 12, 1926 (France) is not shown to be a crime involving moral turpitude since the record of conviction fails to show that an intent to defraud was involved.
CHARGES:
Warrant: Act of 1924 — Visa procured by fraud and misrepresentation.
Act of 1917 — Convicted of crime prior to entry, passing bad checks.
BEFORE THE CENTRAL OFFICE
Discussion: The Board of Immigration Appeals by order dated April 15, 1948, directed that the hearing be reopened for the introduction of evidence with respect to the French law under which the subject alien was convicted. The reopened hearing was conducted on July 15, 1948, and the entire record is now before this Service for consideration. The matter will be considered de novo.
The subject of this record was born March 26, 1908, in Ismail, Russia, which subsequent to World War I became part of the Territory of Roumania and which has since reverted to Russian sovereignty as a result of the peace treaty following World War II.
The respondent last entered the United States at the port of San Ysidro, Calif., on September 3, 1943, as a quota immigrant in possession of a nonpreference immigration visa issued to him September 3, 1943, by the American Consul at Tijuana, Mexico. The alien first entered the United States as a temporary visitor at the port of New York on August 21, 1937; reentered the United States as a temporary visitor at the port of Miami, Fla., on July 5, 1938 following a week's absence in Cuba; and again entered the United States as a temporary visitor in 1939 at the port of El Paso, Tex., following an absence of a few weeks.
On April 11, 1935, the Court of Appeals of Paris, 10th Chamber, confirmed a judgment of the 12th Chamber of the Paris Civil Court of July 7, 1932 sentencing the respondent to serve 4 months and assessing a fine of 200 francs for passing checks without funds in violation of article 4 of the law of August 12, 1926, section 405 of the Penal Code of France.
The respondent identified a record of this conviction as relating to him and testified that following his sentence to imprisonment he became ill from appendicitis and spent the entire period of his sentence in the prison infirmary under guard.
Article 4 of the law of August 12, 1926, as translated, provides:
A person who in bad faith has issued a check without having the necessary funds, or a balance inferior to the amount of the check, or he has drawn, after the issuance of the check, all or part of the funds, or he has stopped the payment of the check, is liable to the penalties for swindling as provided by article 405 of the Penal Code. In this case the fine cannot exceed the double nor can be less than half of the amount of the check.
Section 405 of the Penal Code of France, as translated, provides:
A person who by making use of false names or false qualifications, or by promoting fraudulent artifices to persuade existence of false enterprises with real or imaginary credit, or to give rise to hope or fear of success, of an accident or of all other unpredictable events nonexistent, in order to obtain funds, furnishings, or bonds, services, notes, promises, receipts, or discharges, and will have, by the use of one of these schemes, swindled or attempted to swindle all or part of the possession of others, shall be punished with imprisonment for a period not less than 1 year and not exceeding 5 years, and liable to a fine of not less than 50 francs and not exceeding 3,000 francs.
In addition the guilty party, beginning from the day he has served his sentence, can be interdicted for a period not less than 5 years and not exceeding 10 years of the rights mentioned in article 42 of this code; provided he is not entitled to a more severe punishment in case it exists a forgery.
It is to be noted at the outset that article 4 of the law of August 12, 1926, under which this respondent was convicted refers to article 405 solely for the penalty to be imposed. The penalty imposed by article 405 is further limited by article 4 of the law of August 12, 1926, by the statement that the fine cannot exceed the double nor can be less than half the amount of the check issued, and by the further provision that article 463 of the Penal Code shall be applicable to crimes embraced within article 4 under which the court is permitted to consider extenuating circumstances in imposing penalties.
The question to be determined is whether the offense of which this alien was convicted constitutes a crime involving moral turpitude. It has been previously concluded that the question as to whether a foreign crime involves moral turpitude must be determined by the standards prevailing in the United States (37 Op. Atty. Gen. 293 (1933); 39 Op. Atty. Gen. 93 (1937)). Under the standards prevailing in the United States the crime of which this alien was convicted would involve moral turpitude only if the offense was committed with intent to defraud.
The statute under consideration and under which the respondent was convicted in terms requires that the act be committed "in bad faith." Such term has been defined in this jurisdiction as synonymous with fraud ( Hilgenberg v. Northrup, 33 N.E. 786, 787, 134 Ind. 92; Commonwealth v. Smith, 46 S.W. (2d) 474, 478, 242, Ky. 365) and dishonesty ( New Amsterdam Casualty Co. v. National Newark and Essex Banking Co., 175 A. 609, 616, 117 N.J. Eq. 264; Fenner v. American Surety Co. of New York, Tex. Civ. App. 97 S.W. (2d) 741, 745) and distinguished it from bad judgment ( Balducci v. Strough, 239 N.Y.S. 611, 615, 135 Misc. 346) and negligence ( Sellig v. First National Bank, D.C. Ill. 20 F. Supp. 61, 68). The same term has, however, also been defined in the United States as an action of less affirmative evil than fraud ( Eckert v. Miller, 111 P. 2d, 60, 64, 57 Ariz. 94) and as used in the Negotiable Instruments Act as not necessarily involving furtive or evil motives but as used in a commercial sense of disregard and refusal to learn the facts when available ( Taylor v. Citizen Bank of Albany, 160 S.W. 2d, 639, 641, 290 Ky. 149). We must, therefore, look to the French statutes and the decisions thereunder to determine, if possible, in what sense the term "in bad faith" is used with reference to the offense of which the alien was convicted.
During the reopened hearing conducted July 15, 1948, the government presented Doctor V---- G---- as an expert witness in the government's behalf. This witness stated that he was a graduate of the University of Moscow; that French Civil Code was part of the Imperial Legal System; that it was in force in the so-called Polish Provinces; that he was a graduate of the University of Bratislava, Czechoslovakia, and that he had obtained a Ph. D. in Political Science at Georgetown University. He further testified that in the discharge of his regular duties at the Library of Congress he made several special studies of the French law and the French Criminal Law, in particular and that in 1947 the Library of Congress published his compilation under the title "Statutory Criminal Law of Germany" in connection with which he compiled several comparative annotations on criminal law in Europe, and France in particular. It may be concluded, therefore, that the witness presented was duly qualified to testify as to the French law under consideration in the instant case.
Doctor G---- testified that he was acquainted with article 405 of the French Penal Code and article 4 of the act of August 12, 1926. The record of conviction was shown to him and he was given an opportunity to read it. He was then shown exhibit 11 which he identified as equivalent to an indictment used in our criminal courts with the only difference that exhibit 11 was drawn by the public prosecutor and not passed by the grand jury. He stated that exhibit 11 represented the charges brought against the respondent under article 4 of the law of August 12, 1926. Dr. G---- testified that the first statute governing checks in general was the Law of 1863 which was not a penal law; that prior to 1917 there were no specific provisions penalizing the issuance of bad checks; that a penalty existed prior to 1917 only if the bad checks were issued in connection with a fraudulent act. He stated that the law of 1917 for the first time provided for a fine and small penalty if a check was issued in "bad faith", but only if there was an absence of funds in the bank. If the issuance was not only in bad faith but was also connected with acts coming within article 405, a higher penalty was provided, but even less than the full penalty for fraud. He stated that the term "bad faith" did not appear in the Penal Code until the statute of 1917. Article 4 of the law of August 12, 1926, this witness stated, was an amendment to the general check law of 1863 which provided that an offense was committed thereunder not alone when funds were completely absent (as under the 1917 law) but also where funds were insufficient or where payment had been stopped. The 1926 law made the full penalty of article 405 applicable.
With reference to the meaning of the term "in bad faith" as used in the act of August 12, 1926 this witness stated that under the statute of 1926 issuance of a bad check is not a fraud but is subject to the same penalty as provided for fraud. He quoted as follows from Cheque (Bouteron, la Jurisprudence du Cheque) which he cited as one of the best authorities of French laws:
The Law of August 12, 1926, did not modify the notion of bad faith introduced by the law of August 2, 1917. As we have seen the court decisions which were rendered under the law of August 2, 1917, held that the bad faith is independent from the intention to create prejudice and consists solely in the knowledge of the obstacle to payment.
In reply to the question by alien's counsel "By that do you mean it is independent of the intent to defraud"? the expert witness replied, "Absolutely." With further reference to the meaning of the word "bad faith" this witness stated that that term is defined by the best French legal dictionaries, comparable to Bouvier, as simple knowledge of something. He stated that if one knows that his title to a property is not valid, then he is in possession of his property in "bad faith." Further, if one issues a check in "bad faith" it means that he knows that there are insufficient funds. "Bad faith" results from the fact alone that a check is signed, knowing that one does not have sufficient funds and that he will not have sufficient funds so that by handing a check over to a third person it is put into circulation. This witness quoted as follows from the Tribunal Correctionelle de Seine, November 26, 1924, D.E. 1925, p. 40, Buteron, Le Droit Noveau du Cheque, (1928), p. 174:
Good faith may only be assumed when the drawer of a check is in an excusable error as to the existence and amount of sufficient funds in the bank at the moment of the issuance of the check.
In response to the question, "Suppose a man is in an error which is not excusable?" this witness replied, "Then he is in `bad faith'." When further asked whether such bad faith was necessarily fraud, the witness replied, "No. The issuance of bad checks in `bad faith' is an offense with distinct constituent elements different from fraud because fraud as defined in article 405 requires certain fraudulent acts, such acts which would guide the other party into an error and keep him in error, while mere knowledge of insufficient funds suffices for penalty for issuance of a bad check."
Mr. J---- C. A---- appeared as an expert witness in behalf of the respondent. He stated that he was a citizen of France and an employee of the French Government in the office of the Air Attache at the French Embassy in Washington, D.C.; that he had a master's degree in French law from the University of Paris which entitled him to practice law in France; that he had a master's degree from Georgetown University in the graduate school in political science. He stated that at the request of alien's counsel he had examined the French statute of August 12, 1926, with respect to issuing checks without sufficient funds and the provisions of the Penal Code with respect thereto. This witness testified, in effect, that a person could be convicted of issuing checks in bad faith under article 4 of the law of August 12, 1926, without the element of fraud being a constituent element of the offense under the French laws in question.
While the testimony of the expert witnesses adequately establish that the words "in bad faith" are not synonymous with intent to defraud, and while Dr. G---- testified that the term "in bad faith" was independent of the intent to defraud, the testimony is not clear as to whether the term "in bad faith" is mutually exclusive of intent to defraud so that a violation of article 4 of the act of August 12, 1926, would never embrace an offense where the issuance of the check was with intent to defraud. It must be concluded, therefore, that the testimony of the expert witnesses are susceptible of two interpretations: that the words "in bad faith" mean without intent to defraud in which case the offense would never involve moral turpitude; or, that the term "in bad faith" while independent of intent to defraud might nevertheless exist coincidentally with an intent to defraud, in which case the statute would be one which may or may not involve moral turpitude depending upon whether an intent to defraud existed. If we hold that the testimony of the witnesses establish the first alternative then the criminal charge set forth in the warrant of arrest cannot be sustained. It remains, therefore, to determine whether, under the second alternative the same conclusion is reached. If so, it will matter not at all insofar as the instant case is concerned as to which view of the evidence is accepted.
The respondent's counsel argues that even conceding the statute to be one which may or may not involve moral turpitude since in the instant case the checks issued were post-dated and given for past indebtedness the persons to whom the checks were issued could not possibly have been defrauded and hence, the acts could not be deemed to involve moral turpitude. Counsel is in error in his attempt to establish a relationship between intent to defraud and the commission of a fraud upon the payee of a check. The offense of uttering a check with intent to defraud is separate and distinct from the crime of false pretenses or swindling. The statute creating the offense of issuing checks with intent to defraud was enacted to meet a situation different from that covered by the laws against obtaining under false pretenses or swindling. The gist of the offense of giving a check knowing there are not sufficient funds in the bank to meet it, is the intent to defraud, and counsel contends that such an intent could not exist within the meaning of the statutes unless it also appeared that it was probable that the person to whom the check was delivered could be defrauded; and that, where the information alleged that the check was given for a past-due indebtedness and the person to whom it was given parted with no new consideration therefor, there is no way by which he could be damaged, the debt itself not being extinguished thereby nor its enforceability in any way affected. It must be noted, however, that an intent to defraud may exist whether a fraud on the payee is actually accomplished or not, and that offense is complete when it is shown that the defendant gave the check, representing thereby that it was good and valid and would pay the indebtedness, knowing at the time that he had no funds to meet and, therefore, that it was absolutely worthless. This view finds support in People v. Khan, 41 Cal. App. 393; State v. Meeks, 40 Ariz. 435; Matter of V----, A-4885847 (1946). It is concluded therefore, that the fact that the alien testified during the hearing that the checks were issued for past-due obligations does not preclude the existence of an intent to defraud. It is encumbent to scan the record of conviction to determine whether such intent to defraud existed in the instant case.
Exhibit 11 which previously was identified as the French equivalent to our indictment states that the respondent on January 11, 1931, issued a check for 6,300 francs representing the amount of a commission; that he warned the person to whom the check was issued that there were not then sufficient funds in the bank but that the respondent would regulate it before the end of January. With reference to second check the record of conviction indicates that it was issued in payment for merchandise and to reimburse for loans obtained by the respondent. This check was issued March 10, 1931, in the sum of 9,500 francs which was not honored when presented for payment. A third check issued by the respondent on August 13, 1931, in the sum of 23,500 francs was in payment of plumbing. This check was issued on a bank at a time when the respondent had no funds at all on deposit. The check was protested.
The record of conviction indicates that the respondent explained that all these checks should not have been presented for collection and that they were issued simply as guaranties. The claim made by the respondent as shown in the record of conviction namely, that the checks were issued merely as guaranties must have been believed by the court in view of the moderate sentence imposed of 4 months' imprisonment and fine of 200 francs where the maximum term of imprisonment was 5 years. On the basis of the record of conviction it cannot be determined that there was present an intent to defraud. On the contrary, the record of conviction does present evidence, if believed, that the checks were issued without intent to defraud. It must be concluded, therefore, that the offense of which the alien was convicted has not been shown to be one involving moral turpitude. The criminal charge is not sustained.
At the time the alien filed his application for an immigration visa with the American Consul in Tijuana, Mexico, he stated therein that he had not been in prison and that he was not a member of any of the classes of individuals excluded from admission to the United States under the immigration laws; * * * (14 Criminals; * * * (18) persons inadmissible under the provisions of section 3 of the act of February 5, 1917; * * *. The alien identified the immigration visa issued to him as the one for which he made application. He claimed that he did not deliberately misrepresent the facts in this case nor did he realize that the withholding of information relating to his conviction in France might have a bearing on his eligibility for the visa and his admissibility to the United States. The crime of which the respondent was convicted has been held not to involve moral turpitude in his case. Accordingly, it must be concluded that his withholding the facts of his imprisonment and conviction were immaterial to his obtaining an immigration visa and immaterial to his inadmissibility to the United States. It cannot be maintained, therefore, that his visa was procured by fraud and misrepresentation. U.S. v. Day, 34 F. (2d) 920 (C.C.A. 2, 1929). The first charge set forth in the warrant of arrest is not sustained.
The evidence of record as presently constituted fails to establish a deportable offense. Accordingly, the warrant of arrest should be canceled and the proceedings terminated.
So ordered.