A-2291199 (56090/95)
Decided by the Board September 14, 1944.
Crime Involving Moral Turpitude — Violation of section 338a (b), of title 18, U.S.C.
Sending a threatening letter through the mail in violation of section 338a (b), title 18, U.S.C., does not necessarily involve moral turpitude.
CHARGES:
Warrant: Act of 1924 — Immigrant without immigration visa.
Act of 1917 — Entered without inspection.
Passport Act of May 22, 1918 and act of 1917 — No passport.
Lodged: Act of 1917 — Convicted of crime prior to entry, to wit: Violation of section 338a (b), title 18, U.S.C.; sending a threatening letter through the mail.
BEFORE THE BOARD
Discussion: The Presiding Inspector, after hearing under the warrant of arrest, finds that the respondent is subject to deportation and recommends that he be deported to Mexico. The District Director recommends that deportation be suspended and the Central Office of the Immigration and Naturalization Service concurs in that recommendation.
The respondent is an alien, a native and citizen of Mexico. He is 50 years of age and married.
The respondent first entered the United States at Nogales, Ariz., in December 1915. He departed to Mexico about July 15, 1941, to escape sentence in this country and with the intention of remaining in Mexico. He was not inspected at the time of his first entry.
The respondent last entered the United States, without inspection, at Calexico, Calif., on September 10, 1941, for the purpose of attending Federal Court in Phoenix, Ariz., and also to resume his residence with his family in this country. At the time of his last entry, he was not in possession of an unexpired immigration visa and an unexpired passport or an official document in the nature of a passport or other travel document showing his origin and identity.
On May 15, 1941, the respondent was convicted in the United States District Court for the District of Arizona of "violation of title 18, section 338 (b) U.S.C., sending threatening letter through the mails." Sentence was suspended for a period of 2 years and the respondent was placed on probation during that period.
The letter was addressed to one R---- G---- and states:
You have been elected president. I am not very willing that a good-for-nothing like you, Americanized, Gringo-ized, and thief, should order us, because of this I warn you that if you want to live a little longer making fools of our countrymen, and making money out of them by means of crooked work, you had better not come to meetings. If you want to complain to authorities, we shall see who is more of a man. If you want to, bring your little pistol — and tell this to your lover S----.
While the record of conviction states that he was convicted of "violation of title 18, section 338 (b), U.S.C.; sending threatening letter through the mails" a comparison of the indictment and record of conviction with title 18, section 338 of the said Code discloses that he was convicted of violation of section 338a (b) which reads as follows:
Whoever shall knowingly deposit or cause to be deposited in any post office or station thereof, or in any authorized depository for mail matter, to be sent or delivered by the Post Office Establishment of the United States, or shall knowingly cause to be delivered by the Post Office Establishment of the United States according to the direction thereon, any written or printed letter or other communication with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another shall be fined not more than $1,000, or imprisoned not more than five years, or both.
The original section 338, dealt with using mails to promote frauds and requires a definite intent to devise a scheme to defraud. Section 338a (a) deals with requests for ransom or reward for the release of any kidnaped person and intent to extort money or any other thing of value by mailing a letter threatening to kidnap any person or any threat to injure the person of the addressee or of another. Section 338a (c) covers "intent to extort money or other thing of value," by mailing a letter containing a threat to injure the property or reputation of the addressee or of another, or the reputation of a deceased person, or any threat to accuse the addressee or any other person of a crime. Section 338a (d) provides for the jurisdictions in which the accused may be tried. Section 338b (a), (b), and (c) make similar provisions for letters mailed in foreign countries for delivery through the mails in the United States. Thus it is seen that sections 338a (b) and 338b (b) are the only sections which do not specifically require an intent to defraud or to accomplish extortion. They merely require that the accused mail a letter threatening to kidnap any person or containing any threat to injure any person and it would appear that even though the threat to injure was minor in nature, or even ridiculous, the person mailing such a letter could be convicted and penalized under this section. Had the respondent made the same statements verbally to the said G----, they would not amount to an assault for they do not state an immediate intention to injure coupled with a present ability to commit a battery upon the said G----, and at most could only be considered as a disturbance of the peace. In construing the original section 338 dealing with the use of the mails to defraud, the courts have stated as follows:
The object of the law was to prevent persons having fraudulent designs on others from using the post offices as a means of effecting such fraud ( United States v. Loring, 91 F. 881, 887 (N.D. Ill. 1884)).
We may assume that the scheme alleged was fraudulent and the proof supports that conclusion. But it is the mailing of the letters that constitutes the crime ( Spillers v. United States, 47 F. (2d) 893, (C.C.A. 5th, 1931)).
The aim of the statute is to punish the use of the mails in furtherance of schemes to defraud. And, while it is said generally that the gist of the offense is the use of the mails, the statement means nothing more than that the basis for Federal intervention lies in the use of the mails. * * * A scheme to defraud is, of course, the first element of the offense. Without it the use of the mails would not be illegal. * * * The offense is one requiring specific intent ( United States v. Corlin et al., 44 F. Supp. 940 (S.D. Cal. 1942)).
It has been the uniform holding of the courts that the gist of the offense is the use of the post office in the execution of the scheme to defraud and not the scheme itself ( Brady v. United States, 24 F. (2d) 405 (C.C.A. 8th, 1928)).
The section is to be construed broadly to carry out its purpose ( United States v. Procter and Gamble Company, 47 F. Supp. 676 (D.C. Mass. 1942)).
It, therefore, appears that the basis of the crime is not the uttering of the threatening statements, but is the use of the United States postal facilities for their transmission. The section in question does not require a specific intent to carry out the threat or even that the person charged with the offense intend that the threat be transmitted to the person threatened or that he be informed of the threat. It is sufficient to sustain a conviction that the person, so charged, in writing a letter to another insert in that letter a threat to do injury to the person of a third party and that the letter be mailed. "The moral turpitude of the offense springs from the intent" ( United States ex rel. Shladzien v. Warden of Eastern State Penitentiary, et al., 45 F. (2d) 204 (E.D. Pa. 1930); United States ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A.2d, 1931)).
In the Matter of B----, 56033/86 (July 25, 1941), one of the charges upon which B---- was deported was that he admitted the commission prior to entry of a felony or other crime or misdemeanor involving moral turpitude, to wit: Depositing in the Post Office Establishment of the United States a letter containing a threat to injure the person of another. The said letter contained a threat to give a good whipping to the addressee and another and the grand jury found that the letter was too obscene, indecent, and filthy to be set out in the indictment or to be made a part of the records of the court. The decision does not contain any discussion as to the reason for holding that the offense which he committed necessarily involved moral turpitude. It is noted that B---- had been arrested on several occasions for violations of statutes relating to marihuana and that at the time of his last entry into the United States on April 26, 1940, he was being sought by the United States Federal authorities for prosecution for the violation of statutes relating to extortion and the white-slave traffic.
We are of the opinion that the said section under which the respondent was convicted does not require an intention which is inherently turpitudinous in nature and that the violation of section 338a (b) of title 18, U.S.C., does not necessarily involve moral turpitude.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Mexico;
(2) That the respondent last entered the United States without inspection at Calexico, Calif., on September 10, 1941;
(3) That at the time of his last entry the respondent intended to remain permanently in the United States;
(4) That at the time of his last entry the respondent was not in possession of an unexpired immigration visa;
(5) That at the time of his last entry the respondent was not in possession of an unexpired passport or an official document in the nature of a passport or other travel document showing his origin and identity;
(6) That on May 15, 1941, the respondent was convicted in the United States District Court for the District of Arizona, of violation of title 18, section 338a (b), U.S.C., sending threatening letter through the mails.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under the Immigration Act of May 26, 1924, the respondent is subject to deportation in that, at the time of entry, he was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder;
(2) That under the act of February 5, 1917, the respondent is subject to deportation in that he entered without inspection;
(3) That under the Passport Act, approved May 22, 1918, as amended, and the act of February 5, 1917, the respondent is subject to deportation in that, at the time of entry, he did not present an unexpired passport or official document in the nature of a passport issued by the government of the country to which he owes allegiance or other travel document showing his origin and identity, as required by Executive order in effect, at time of entry;
(4) That under 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 other crime or misdemeanor involving moral turpitude prior to entry, to wit: Violation of title 18, section 338a (b), U.S.C.; sending threatening letter through the mails;
(5) That under section 20 of the Immigration Act of 1917, the respondent is deportable to Mexico at the expense of the Government.Other Factors: The alien has formally applied for suspension of deportation under section 19 (c) (2) of the Immigration Act of 1917, as amended.
The alien is married to a citizen of the United States and is the father of 10 children who were born in this country. Eight of the children are minors and seven of them are dependent upon the alien for their support as is his wife. He is employed and earns an average wage of $5 per day. He values his assets at $900, none of which are liquid. It is apparent that the deportation of the alien would result in a serious economic detriment to his citizen wife and to his seven minor citizen children.
With the exception of the period of a few months between July 15, 1941, and September 10, 1941, the alien has resided in this country since December 1915. His criminal record discloses that his only offense was the mailing of the threatening letter mentioned above. An independent character investigation discloses that he is considered by his past employers and the members of the community in which he resides, to be a person of good moral character. This is supported by the testimony of persons who have known him well for a long period of years.
The alien is a person of the white race and is not ineligible to naturalization in the United States nor is he subject to deportation under any provision of law mentioned in section 19 (d) of the Immigration Act of 1917, as amended.
We are of the opinion that suspension of deportation should not be granted in this case but in view of the factors set forth above, he should be accorded the privilege of voluntary departure.
Order: It is directed 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.