A-5349021
Decided by Board April 20, 1956
Crime involving moral turpitude — 18 U.S.C. 283 [now 18 U.S.C. 487], making and possessing dies or molds of U.S. coins — 18 U.S.C. 277 [now 18 U.S.C. 485], counterfeiting gold or silver coins — Conspiracy to violate such statutes.
(1) 18 U.S.C. 283 defines two distinct counterfeiting offenses-the making and the possession of dies or molds of U.S. coins. As intent to defraud is implicit in both these offenses, conviction under this statute is conviction for a crime involving moral turpitude.
(2) 18 U.S.C. 277 sets forth three counterfeiting acts which are made criminal-the making of false, forged, or counterfeited coins, the passing of such coins, and the possession of such coins. Intent is of no consequence with respect to the making of counterfeit coins, but intent to defraud is inherent in the passing and possession of such coins. Therefore, conviction of passing or possessing counterfeit coins in violation of this statute is conviction of a crime involving moral turpitude.
(3) Conviction for conspiracy to violate 18 U.S.C. 283 and that portion of 18 U.S.C. 277 relating to passing and possession of counterfeit coins is conviction for a crime involving moral turpitude.
CHARGES:
Warrant: Act of 1952 — Section 241 (a) (1) — Excludable at entry as a stow-away (section 3, Act of 1917).
Section 241 (a) (4) — Convicted after entry of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct (multiple counterfeiting offenses).
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of a special inquiry officer dated December 23, 1955, holding the respondent deportable on the warrant charges. Respondent, a 60-year-old native and last a citizen of Russia, last entered the United States at Savannah, Georgia, in February 1923 as a stowaway. In view of respondent's manner of entry on that occasion, he is clearly deportable on the section 241 (a) (1) charge.
The charge under section 241 (a) (4) arose as a result of respondent's conviction on two occasions in 1942. On March 4, 1942, respondent was convicted on a plea of guilty in the United States District Court, Southern District of New York, of four counts relating to counterfeiting offenses. Count one charged that on January 30, 1942, respondent and another, without the required government permission, unlawfully, willfully and knowingly possessed three counterfeit plastic molds for United States coins in a 50¢ denomination, contrary to 18 U.S.C. 283. Count two charged that between May 1941, and January 30, 1942, respondent and another made over 13,000 United States silver coins in a 50¢ denomination, contrary to 18 U.S.C. 277. Count three charged that on January 30, 1942, respondent and another "with intent to defraud divers (unknown) persons" possessed approximately 6,835 counterfeit United States silver coins of a 50¢ denomination, contrary to 18 U.S.C. 277. Count four charged that from May 1941 to January 30, 1942, respondent and another conspired to violate 18 U.S.C. 277, 283, by counterfeiting as well as passing those counterfeit United States coins, contrary to 18 U.S.C. 88. Respondent was sentenced to five years' imprisonment on counts one, two and three and two years' imprisonment on count four, the sentences to run concurrently; he was also ordered to pay a fine of $1.00 for each of counts one, two and three, with the fines being remitted.
On October 23, 1942, respondent was convicted on a plea of guilty in the United States District Court, District of New Jersey, of five counts of passing counterfeit United States silver half-dollar coins "with intent to defraud" five different persons, contrary to 18 U.S.C. 277. Respondent was sentenced to five years' imprisonment on each of the five counts, all sentences to run concurrently and also to run concurrently with the prior sentences of the U.S. District Court in New York. Respondent was also fined $1,000 on each of the five counts.
18 U.S.C. 283 provides as follows:
Counterfeiting dies for United States coins.
Whoever, without lawful authority, shall make, or cause or procure to be made, or shall willingly aid or assist in making, any die, hub, or mold, or any part thereof, either of steel or plaster, or any other substance whatsoever, in likeness or similitude, as to the design or the inscription thereon, of any die, hub, or mold designated for the coining or making of any of the genuine gold, silver, nickel, bronze, copper, or other coins of the United States, that have been or hereafter may be coined at the mints of the United States; or whoever, without lawful authority, shall have in his possession any such die, hub, or mold, or any part thereof, or shall permit the same to be used for or in aid of the counterfeiting of any of the coins of the United States hereinbefore mentioned, shall be fined not more than $5,000 and imprisoned not more than ten years. (Feb. 10, 1891, c. 127, s. 1, 26 Stat. 742; Mar. 4, 1909, c. 321, s. 169, 35 Stat. 1120.)
Section 283 (or section 169 of the Criminal Code) defines two distinct counterfeiting offenses — the making and the possessing of dies or molds of United States coins. The legislative history and court decisions tend to indicate that an intent to defraud the Government is implicit in these offenses ( Kaye v. United States, 177 Fed. 147 (C.C.A. 7, 1910); Baender v. United States, 260 Fed. 832 (C.C.A. 9, 1919)). Hence, since intent to defraud is present, the test set out by the Supreme Court 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 involved moral turpitude. Consequently, respondent's conviction under 18 U.S.C. 283 was a conviction for a crime involving moral turpitude.
18 U.S.C. 277 reads as follows:
Counterfeiting gold or silver coins or bars.
Whoever shall falsely make, forge, or counterfeit, or cause or procure to be falsely made, forged, or counterfeited, or shall willingly aid or assist in falsely making, forging, or counterfeiting any coin or bars in resemblance or similitude of the gold or silver coins or bars which have been, or hereafter may be, coined or stamped at the mints and assay offices of the United States, or in resemblance or similitude of any foreign gold or silver coin which by law is, or hereafter may be, current in the United States, or are in actual use and circulation as money within the United States; or whoever shall pass, utter, publish, or sell, or attempt to pass, utter, publish, or sell, or bring into the United States or any place subject to the jurisdiction thereof, from any foreign place, knowing the same to be false, forged, or counterfeit, with intent to defraud any body politic or corporate, or any person or persons whomsoever, or shall have in his possession any such false, forged, or counterfeited coin or bars, knowing the same to be false, forged, or counterfeited, with intent to defraud any body politic or corporate, or any person or persons whomsoever, shall be fined not more than $5,000 and imprisoned not more than ten years. (R.S. s. 5457; Jan. 16, 1877, c. 24, 19 Stat. 223; Mar. 4, 1909, c. 321, s. 163, 35 Stat. 1119.)
In Kaye v. United States, supra, the court noted that a predecessor statute of section 277 (section 163 of the Criminal Code) sets out three separate classes of acts of counterfeiting which are made criminal. The first is the making of false, forged, or counterfeited coins; the second is the passing of such coins; and the third is the possessing of such coins. The court determined that, for the purpose of section 277, the intent with which the counterfeit coins were made is of no consequence, but that the words "with intent to defraud, etc.," in relation to the second and third portion of section 277, were specifically inserted by Congress to make such intent an essential element of the offense. Thus, since the statute specifically contains the words "with intent to defraud" in relation to the offense of possession of counterfeit coins, the DeGeorge test is also applicable and the possession offense under 18 U.S.C. 277 involves moral turpitude.
On the other hand, the offense of making counterfeit coins, defined in 18 U.S.C. 277, does not involve intent to defraud and is a purely regulatory statute, penalizing an act which is only malum prohibitum. This offense is, therefore, not a crime involving moral turpitude and the offense charged in count two of exhibit 2 [March 1942 indictment] is not a crime involving moral turpitude.
With regard to count four of exhibit 2, since the element of moral turpitude can only be solved by reference to the substantive crime or crimes, the character of the offenses defined in 18 U.S.C. 277 and 283 are controlling ( Matter of S----, 56152/593, 2 IN Dec. 225 (B.I.A., 1944)). Since these latter statutes describe divisible crimes, we must consider the indictment in order to learn whether the offenses for which respondent was convicted (or the substance of the conspiracy) were crimes involving moral turpitude. While some of the overt acts enumerated in count four of exhibit 2 do involve moral turpitude and some do not, this portion of the indictment includes allegations that respondent conspired to violate a part of 18 U.S.C. 277, which definitely defines an offense involving moral turpitude.
Since each of respondent's acts of passing counterfeit coins, mentioned in separate counts of the October 1942 indictment, constituted separate and distinct criminal offenses and involved different persons, we conclude that the rule in the Matter of J----, A-3203990, 6 IN Dec. 382 (B.I.A., 1954), dictates that these offenses did not arise out of a single scheme of criminal misconduct. Similarly, respondent's acts, which served as a basis for his conviction in the Federal District Court in New York were also completely separate from the previously mentioned counterfeiting. Hence, respondent was convicted after entry of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, and the warrant charge under section 241 (a) (4) is sustained ( Matter of P----, A-3181334, 6 IN Dec. 795 (B.I.A., 1955); Matter of M----, A-1917524, Int. Dec. No. 776 (B.I.A., March 9, 1956)).
With regard to respondent's application for relief in the form of suspension of deportation, we feel that the special inquiry officer correctly determined that respondent was ineligible for this relief, because he was only released from imprisonment on May 3, 1946, and, therefore, cannot prove 10 years of good moral character by virtue of the provisions of section 101 (f) (7). Since respondent is ineligible for relief under section 244 (a) (5), he is also ineligible for relief under section 244 (e). The appeal is, accordingly, dismissed.
Order: It is hereby ordered that the appeal be dismissed.