A-8437852.
Decided by Board August 26, 1955.
Crime involving moral turpitude — Violation of 18 U.S.C. 912.
18 U.S.C. 912 is a divisible statute and defines two separate offenses. First, "whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such"; or, second, "in such pretended character demands or obtains any money, paper, document, or thing of value." Conviction for violation of the second portion necessarily involves an element of fraud; and fraud being present, the crime is one involving moral turpitude.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (4) — Convicted of a crime involving moral turpitude, committed within five years after entry ( 18 U.S.C. 912).
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of a special inquiry officer dated February 10, 1955, holding respondent deportable on the warrant charge. Respondent, a 27-year-old native and citizen of Italy, last entered the United States at Blaine, Washington, on January 28, 1953, for permanent residence.
Respondent was convicted on July 30, 1954, in the United States District Court, N.D., California, on a plea of guilty of three violations of 18 U.S.C. 912. Count one charged respondent with falsely assuming and pretending to be a 1st Lieutenant of the United States Air Force and, as such, demanding and obtaining $50 from E---- M----; count two charged respondent with obtaining $30 from E---- M---- under the same circumstances, but on a different occasion; count three charged that respondent had obtained $30 from T---- L---- under similar circumstances.
Respondent was sentenced to 13 months' imprisonment on each count of the information, the terms to run concurrently. The Immigration Service advised the Board on July 27, 1955, that respondent had been released from confinement at the United States Penitentiary, McNeil Island, Washington, to the custody of the Immigration Service in connection with the present deportation proceeding.
18 U.S.C. 912 provides as follows:
Officer or employee of the United States.
Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined not more than $1,000 or imprisoned not more than three years, or both. June 25, 1948, c. 645, 62 Stat. 742.
The special inquiry officer concluded that the crime was one involving moral turpitude, because "the act denounced by the statute grievously offends the moral code of mankind," apart from any statutory prohibition to that effect. Since 18 U.S.C. 912 does not contain the words "with intent to defraud the United States or any person," which were included in the prior statute (18 U.S.C. 76) and because the significance of this changed phraseology has not yet been judicially determined, this is a case of first impression.
18 U.S.C. 76 provides as follows:
Falsely pretending to be a United States Officer.
Whoever, with intent to defraud either the United States or any person, shall falsely assume or pretend to be an officer or employee acting under the authority of the United States, or any department, or any officer of the Government thereof, or under the authority of any corporation owned or controlled by the United States, and shall take upon himself to act as such, or shall in such pretended character demand or obtain from any person or from the United States, or any department, or any officer of the Government thereof, or any corporation owned or controlled by the United States, any money, paper, document, or other valuable thing, shall be fined not more than $1,000 or imprisoned not more than 3 years, or both (April 18, 1884, ch. 26, 23 Stat. 11; March 4, 1909, ch. 321, sec. 32, 35 Stat. 1095; February 28, 1938, ch. 37, 52 Stat. 83).
18 U.S.C. 123, which penalized anyone pretending to be a revenue officer, was transposed into 18 U.S.C. 912 under the recent Criminal Code revision. Prior to 1948, assuming the guise of a revenue officer was punishable by only two years' imprisonment and a $500 fine. This is the only difference in coverage between the old 18 U.S.C. 123 and the present 18 U.S.C. 912.
As in the case of 18 U.S.C. 76, the current statute — 18 U.S.C. 912 — is divisible and defines two separate offenses. First, "whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such"; or, second, "in such pretended character demands or obtains any money, paper, document, or thing of value."
See Appendix "A".
See Matter of H----, 56133/119, 1 IN Dec. 509 (A.G., 1943), in which the Attorney General reversed the Board's determination and held that the offense defined in clause one of 18 U.S.C. 76 was a crime involving moral turpitude.
See also Appendix "B".
Counsel contends that the omission to include in the current statute the words "intent to defraud" (language which was contained in the earlier statute) eliminates fraud as an essential element of a violation and, on that basis, counsel would have us hold that moral turpitude was not necessarily involved in the offense of which the respondent was convicted. He bases his contention on United States v. Lepowitch, 318 U.S. 702 (1943).
In United States v. Lepowitch, 318 U.S. 702 (1943), reh. den. 319 U.S. 783 (1943), the defendant was charged with impersonating an FBI agent to obtain information about the whereabouts of another person, contrary to the first clause of 18 U.S.C. 76. The court stated:
This (the first) branch of the statute covers the acquisition of information by impersonation although the information may be wholly valueless to its giver. This result is required by United States v. Barnow, in which we held that the purpose of the statute was `to maintain the general good, repute and dignity of the (Government) service itself.' * * *
* * * While more than a mere deceitful attempt to affect the course of action of another is required under the second clause of the statute which speaks of an intent to obtain a valuable thing, the very absence of these words of limitation in the first portion of the act persuades us that under it (the first clause) a person may be defrauded although he parts with something of no measurable value at all.
The Lepowitch case concerned an indictment charging the accused with having impersonated a Federal officer and by that means he assumed to elicit information from one person to secure information as to the whereabouts of another. It was there contended that the intent to defraud required an intention to deprive another of money or property; but the Supreme Court held, on the contrary, that it was sufficient to show that the defendant sought to cause the deceived person to follow some course of action he would not have pursued but for the deceitful conduct.
In United States v. Lepowitch, 318 U.S. 702 (1943), the court stated that: "More than a mere deceitful attempt to affect the course of action of another is required under the second clause of the statute."
The second clause of 18 U.S.C. 76 was also considered in United States v. Ballard, 118 Fed. 757 (W.D. Mo., 1902); Russell v. United States, 271 Fed. 684 (C.C.A. 9, 1921); Elliott v. Hudspeth, 110 F. (2d) 389 (C.C.A. 10, 1940); Laing v. United States, 145 F. (2d) 111 (C.C.A. 6, 1944); Ekberg v. United States, 167 F. (2d) 380 (C.C.A. 1, 1948); Matter of B----, A-6190434, 3 IN Dec. 270 (B.I.A., 1948) [holding that the offense defined in the second clause involved moral turpitude].
We do not apprehend that the decision in that case determines the issue urged by counsel. The language "whoever falsely assumes or pretends to be an officer * * * (and) in such pretended character demands or obtains money" in our opinion necessarily involves an element of fraud; and fraud being present, the conclusion is that moral turpitude is an element of the offense.
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 (E.D. Pa., 1947)).
It is noted in passing that counsel contends that the statutory phraseology "demand or obtain" is material and lends support to the argument against deportability. We cannot agree, for the mere fact that the statute is phrased in the disjunctive, not conjunctive, and that it is not necessary to prove both acts for conviction does not in any way lessen the inherent fraud element present. Furthermore, in Ekberg v. United States, 167 F. (2d) 380 (C.C.A. 1, 1948), the court specifically held that "demanding and obtaining are separate offenses."
United States v. Ballard, 118 Fed. 757 (W.D. Mo., 1902); Littell v. United States, 169 Fed. 620 (C.C.A. 9, 1909).
While counsel ventures that the use of artifice or deceit is not sufficient to place the offense in the moral turpitude category, we feel that the second clause of 18 U.S.C. 912 defines an offense which is predicated on an inherent intent to obtain money, etc., unlawfully and by means of fraud or false pretenses. Since it has been determined that a fraud element is present, the test set out 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, as in the present case, involve moral turpitude. Therefore, we will so conclude here and sustain the warrant charge. The appeal is accordingly dismissed.
See Appendix "C".
It has long been accepted that moral turpitude inheres in the criminal intent ( United States ex rel. Mongiovi v. Karnuth, 30 F. (2d) 825 (W.D.N.Y., 1929); United States ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2, 1931); United States ex rel. Shladzien v. Warden, 45 F. (2d) 204 (E.D. Pa., 1930)).
Since obtaining money by false pretenses has traditionally involved an inherent fraud element in Anglo-American law, the omission of the words "with intent to defraud" had no material effect upon the character of the second offense (Cf., United States v. Rush, 196 Fed. 579 (E.D. Wash., 1912); Shepherd v. United States, 177 F. (2d) 938 (C.A. 10, 1949); Bermann v. Reimer, 123 F. (2d) 331 (C.C.A. 2, 1941); Matter of D----, A-6322982, 2 IN Dec. 836 (B.I.A., 1947)).
Order: It is hereby ordered that the appeal be dismissed.
APPENDIX A
According to judicial construction of 18 U.S.C. 76 or its predecessor, two offenses were created. First — a person, with intent to defraud, pretends to be a United States officer, etc., and proceeds to act as such; second — a person, falsely assuming such a guise, demands or obtains money, etc., with intent to defraud.
United States v. Curtain, 43 Fed. 433 (D.C., W.D.S.C., 1890) [defendant posed as a Post Office Inspector and was guilty under clause two; Act of April 18, 1884]; United States v. Taylor, 108 Fed. 621 (E.D. Mo., 1900) [defendant assumed the guise of a Secret Service officer and was charged with both offenses in a single count, which was duplicitous; Act of April 18, 1884]; United States v. Ballard, 118 Fed. 757 (W.D. Mo., 1902) [defendant assumed the guise of a Deputy U.S. Marshal and was charged with both offenses; Act of April 18, 1884]; United States v. Farnham, 127 Fed. 478 (E.D. Pa., 1904) [defendant posed as a Secret Service officer and was guilty under clause two; Act of April 18, 1884]; Littell v. United States, 169 Fed. 620 (C.C.A. 9, 1909) [defendant pretended to be a Secret Service officer and was guilty under clause two; Act of April 18, 1884]; United States v. Rush, 196 Fed. 579 (D.C., E.D. Wash., 1912) [defendant posed as a United States employee authorized to sell certain books and charged for both offenses; section 32, Criminal Code of March 4, 1909, or 18 U.S.C. 76]; Baas et al. v. United States, 25 F. (2d) 294 (C.C.A. 5, 1928) [defendants assumed the guise of prohibition officers and were charged under the first clause; 18 U.S.C. 76]; Pierce v. United States, 86 F. (2d) 949 (C.C.A. 6, 1936) [defendant pretended to be a Government official selling "TVA stock," etc.; 18 U.S.C. 76]; Kane v. United States, 120 F. (2d) 990 (C.C.A. 8, 1941) [defendant posed as a Department of Justice investigative agent and obtained a signed statement; 18 U.S.C. 76]; Graham v. Squier, 145 F. (2d) 348 (C.C.A. 9, 1944 [defendant pretended to be an Army Air Corps Major and was convicted under both first and second clauses; 18 U.S.C. 76]; Ekberg v. United States, 167 F. (2d) 380 (C.C.A. 1, 1948) [defendant assumed the guise of a War Department Engineering Office employee and was successfully charged with two offenses under the second clause; 18 U.S.C. 76]; Dickson v. United States, 182 F. (2d) 131 (C.A. 10, 1950) [defendant masqueraded as a revenue agent and was convicted under clause two; 18 U.S.C. 76].
APPENDIX B
Several other court decisions, relating to the offense under consideration, are of interest.
In United States v. Barnow, 239 U.S. 74 (1915), the defendant was convicted under 18 U.S.C. 76 of three counts drawn under each offense. The defendant had pretended to be an employee of the United States acting as a book selling agent. The District Court held that the false impersonation must be of a real, not fictitious, person or class (office, in this case). The Supreme Court determined that this construction was too narrow, for the words "to take on himself to act as such," found in the first offense, means more than assuming the pretended character and includes some action in keeping with the pretense.
The Supreme Court stated that the statute prohibits "any false assumption or pretense of office or employment under the authority of the United States, or any department or officer of the Government, if done with the intent to defraud and accompanied by any of the specified acts done in the pretended character, and the District Court erred in attributing to the act a more restrictive meaning."
In Lamar v. United States, 241 U.S. 103 (1916), the defendant was convicted under 18 U.S.C. 76. The Supreme Court held that United States v. Barnow was controlling and stated:
* * * we conclude this to be the meaning of the clause (clause one) for the following reasons: (a) Because the words `acting under the authority of the United States' are words designating the character of the officer or employee whose impersonation the clause prohibits since if the words are thus applied, the clause becomes coherent and free from difficulty, while if on the other hand they are applied only as limiting and defined the character of the overt act from which criminality is to arise, confusion and uncertainty as to the officer or employee whose fraudulent simulation is prohibited necessarily results. (b) Because the consequence of a contrary construction would be obviously to limit the application of the clause as shown by its general language and as manifested by the remedial purpose which led to its enactment. (Cong. Rec., vol. 14, pt. 4, p. 3263, 47th Cong., 2d sess.) (c) Because to adopt a contrary view would be absolutely inharmonious with the context, since it would bring into play a conflict impossible of reconciliation. To make this clear it is to be observed that the last clause of the section makes criminal the demanding or obtaining in the assumed capacity which the first clause prohibits, `from any person or from the United States, * * * any money, paper, document, or other valuable thing * * *.' We say which the first clause prohibits because there is no reexpression of the prohibition against assuming or pretending contained in the first clause except as that prohibition is carried over and made applicable to the second by the words `or shall in such pretended character demand,' etc. As it is obvious that the acts made absolutely criminal by the second clause are acts which may or may not have been accomplished as the result of exerting in the pretended capacity an authority which there would have been a lawful right to exert if the character had been real and not assumed, it results not only that the conflict which we have indicated would arise from adopting the construction claimed, but the error of such contention as applied to the first clause is conclusively demonstrated. (pp. 114, 115.)
See also Brafford v. United States, 259 Fed. 511 (C.C.A. 6, 1919); Pierce v. United States, 86 F. (2d) 949 (C.A. 6, 1936); United States v. Wight, 176 F. (2d) 376 (C.A. 2, 1949).
APPENDIX C
Since the construction and phraseology of the statute was changed in 1948, the following decisions have been rendered under 18 U.S.C. 912: Axelbank v. United States, 189 F. (2d) 18 (C.A.D.C., 1951); United States v. Furlong, 194 F. (2d) 1 (C.A. 7, 1952, cert. den. 343 U.S. 950); United States v. Meeker, 110 F. Supp. 743 (D. Alaska, 1953); Thomas v. United States, 213 F. (2d) 30 (C.A. 9, 1954); Larson v. United States, 125 F. Supp. 360 (D. Alaska, 1954).
In Axelbank v. United States, the defendant was convicted of falsely representing, with intent to defraud, that he was an agent of the Office of Naval Intelligence. The conviction was affirmed on the sufficiency of the evidence on the factual issue.
In United States v. Furlong, defendants were convicted of the charges in counts one, two, and six, charging them with impersonation of Federal officers in violation of 18 U.S.C. 912. The issue presented was whether the trial judge erred in giving a supplemental instruction to the jury and in refusing to consider an affidavit of a juror in support of the defendants' amended motion for a new trial. The Court of Appeals held that the mere statement by counsel that he objected to the supplemental instruction given upon recall of the jury, without a statement of reasons for the objection, or motion, either before or after the jury retired for an opportunity to state any objection to the instruction, was insufficient to preserve any error in relation to the instruction for consideration by the Appellate Court.
In Thomas v. United States, the defendant was charged with falsely pretending to be a United States Senator and in such a guise sending a telegram to the warden of a Federal penitentiary transmitting an alleged stay of execution. While the decision of the Court of Appeals primarily turned upon the question of burden of proof in respect to an alibi, the court held that, as in the prior statute, even if the pretense was of holding a nonexistent office, the statute is violated.
In United States v. Meeker, the defendant was charged with masquerading as a deputy U.S. Marshal and obtaining $46 for repairs to the defendant's car caused by a collision with the other person's car. The court decided that since the defendant obtained something of value (immediate payment of a garage bill), he was guilty of the offense.
In United States v. Larson, the defendant impersonated an FBI agent contrary to the first portion of the statute. The decision turned on the import of the statutory phrase "act as such," which as in 18 U.S.C. 76 was held as requiring an overt act in pursuance of the pretense.