V-1503182.
Decided by Board November 16, 1954.
Hearing — Not unfair merely because respondent was suffering from mental illness and not represented by a court appointed representative — Crime involving moral turpitude — Section 202, Title 18, U.S.C.
(1) Requirements of fair hearing have not been violated in deportation proceedings involving an alien of unsound mind, where notice of hearing has been served on the alien and his wife, arrangements were made to protect alien's interests by having a doctor in attendance at the hearing, and alien was represented by legal counsel who was given the privilege of introducing evidence and cross-examining witnesses.
(2) Conviction for violation of section 202, Title 18, U.S.C., which makes it a crime for a government employee to accept or solicit a bribe, is an offense involving moral turpitude.
CHARGES:
Warrant: Act of 1924 — Remained longer — Visitor.
Lodged: Section 241 (a) (4), Act of 1952 — Convicted of crime involving moral turpitude committed within five years after entry and confined for year or more — Violation of section 202, Title 18, U.S.C. (Government employee did unlawfully, willfully and knowingly ask, accept and receive a bribe) — Four counts.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer finding respondent deportable on each of the counts set forth above.
Respondent is a 46-year-old married male, a native of Rumania and last a citizen or subject of Israel. He last entered the United States as a visitor on March 4, 1951, and was granted extension of temporary stay to November 21, 1951. He has remained in the United States without authorization since that date. He is, therefore, clearly deportable on the charge in the warrant of arrest. On June 12, 1952, he was sentenced to imprisonment for a period of 18 months on each of four counts for violation of section 202, Title 18, U.S.C., which makes it a crime for a Government employee to accept or solicit a bribe. The acts in question were committed about December 1951 and January 1952.
Counsel contends that the hearing given the respondent was unfair because the respondent was suffering from a mental illness at the time of the hearing and the respondent was not represented by a court appointed representative. We do not find the contentions persuasive. The appeal will be dismissed.
Warrant of arrest was issued on December 11, 1951, and served upon the respondent on June 16, 1952. Hearing was held on November 18, 1952. At the time, respondent was granted a continuance for two weeks to secure counsel. Hearing was resumed on September 24, 1953. At this hearing, attorney W---- appeared in his behalf. Counsel stated that he had not had sufficient time to talk to the alien; he further stated the alien was in a psychotic state and that the Service should not proceed while the respondent was in such a state. The special inquiry officer granted an indefinite continuance to enable a notice to be sent to the wife of the respondent or someone in charge of looking after his affairs and to enable the respondent to recover from his psychotic state, a matter which it was represented to the special inquiry officer would occur within about 30 days.
On March 22, 1954, hearing was resumed. Previous to the hearing, notification was addressed to the respondent and his wife. At the hearing respondent was represented by counsel K----, who had entered the case upon the request of the State Bar Association which sought aid for the respondent as an indigent person. A continuance of two weeks was requested to enable the new counsel to properly prepare for the case and to receive information which he believed would be forthcoming within that period. Continuance was denied. Counsel was informed that if he obtained any pertinent information, he could present it after the hearing was closed. Counsel objected to the continuance of the proceedings on the ground that there was a question as to the sanity of respondent; that the Federal Rules of Civil Procedure required the capacity to sue or be sued to be determined by the law of domicile and provided that the court shall appoint a guardian ad litem; and that since the preliminary steps to protect the welfare of the respondent in his then mental condition had not been complied with, to proceed further would deprive respondent of due process of law. The objection was overruled.
Dr. Charles Smith, Chief of Psychiatric Service at the Medical Center for Federal Prisoners at Springfield, Missouri, was present representing the warden or chief medical officer of the institution and appeared to protect the alien's interests. The doctor testified that the respondent had come to the institution with an administrative certification that he was of unsound mind and that subsequent examinations by the medical staff caused them to concur in that conclusion. The doctor testified that respondent's mental condition rendered him incompetent to appear as a witness and from having a full and complete understanding of his oath. He was diagnosed as afflicted with paranoid state, chronic severe. The doctor testified that he was first certified as a psychotic on July 16, 1953, and that the respondent's condition was of the type that tended to become progressively worse.
With the consent of counsel, the respondent was permitted to attend the hearing. Respondent was questioned by both the special inquiry officer and counsel. On the whole, he appears to have answered intelligently and rationally.
We believe that proceedings were in substantial compliance with pertinent laws and regulations relating to the deportation process. At the time of the service of the warrant, it had not been determined that respondent was a mental case. Service was properly made upon him (8 C.F.R. 242.14). Moreover, notice of hearing was given both to the respondent and to his wife. Respondent secured counsel. Arrangements were made by the warden to protect the respondent's interests by having a doctor in attendance at the hearing. Counsel was given the privilege of introducing evidence and cross-examining witnesses. At this late date, no defense to the charges is offered. The proceedings were proper.
We pass on to the question as to whether moral turpitude is involved in respondent's conviction under 18 U.S.C.A. 202. The special inquiry officer has set forth the facts concerning the criminal violation in great detail. Section 202 of Title 18, U.S.C.A., provides as follows:
Acceptance or solicitation by officer or other person
Whoever, being an officer or employee of, or person acting for or on behalf of the United States, in any official capacity, under or by virtue of the authority of any department or agency thereof, or an officer or person acting for or on behalf of either House of Congress, or of any committee of either House, or of both Houses thereof, asks, accepts, or receives any money, or any check, order, contract, promise, undertaking, obligation, gratuity, or security for the payment of money, or for the delivery or conveyance of anything of value, with intent to have his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, influenced thereby, shall be fined not more than three times the amount of such money or value of such thing or imprisoned not more than three years, or both; and shall forfeit his office or place and be disqualified from holding any office of honor, trust, or profit under the United States.
This section shall not apply to violations of section 213 of this title.
The purpose of this section is to punish officers of the United States for accepting bribes ( United States v. Canella, 63 F. Supp. 377, Calif., aff'd 157 F. Supp. 470). The gravamen of the offense is the acceptance of a bribe by an official with the intent to have his decision or action in a matter pending before him in his official capacity influenced thereby ( United States v. Henry, 52 F. Supp. 161, Nevada).
We believe the offense of bribery is a base and vile act which involves moral turpitude. The offense in question moreover is one whereby the Government has been cheated out of services the community is rightfully entitled to and it involves the obstruction of lawful governmental functions by deceit, graft, trickery and dishonest means. Such an offense clearly involves moral turpitude (See Matter of S----, 56152/593, 2 IN Dec. 225). Since the record establishes the respondent's conviction of crimes involving moral turpitude, we need not consider the turpitudinous nature of his convictions for violation of two counts of section 462 (a) of Title 50 App. U.S.C.A. The appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.