56133/119
Decided by the Board August 16, 1943 Reversed by the Attorney General
Crime involving moral turpitude — Impersonating a Federal officer.
The crime of impersonating a Federal officer, in violation of 18 U.S.C., section 76, is a crime involving moral turpitude.
CHARGE:
Warrant: Act of 1924 — Immigrant without immigration visa. Act of 1917 — Entered by false and misleading statements, thereby entering without inspection. Act of 1917 and Executive Order 8430 — No passport. Act of 1917 — Crime within 5 years of entry — impersonation of a Federal officer.
Mr. Leon Ulman, Board attorney-examiner.
BEFORE THE BOARD
STATEMENT OF THE CASE: The presiding inspector proposes that the respondent be found subject to deportation on the charges above specified. The Central Office concurs. Exceptions have been filed.
DISCUSSION: We shall dispose of the claim to citizenship. The respondent was born out of wedlock in Sweden on July 31, 1917. His parents were natives and citizens of Sweden. His father has never resided in the United States. The record does not indicate whether his father is alive. For the purpose of the present proceedings, we shall presume his death. On April 12, 1921, the respondent and his mother were admitted to the United States for permanent residence. On April 16, 1921, the respondent's mother married an alien who was naturalized on February 13, 1936. At this time the respondent was 18 years of age. The respondent's mother has never been naturalized. We find that the respondent is an alien. Since September 22, 1922, women have not acquired United States citizenship by virtue of marriage to American citizens. Therefore the mother's marriage to a United States citizen on or after that date conferred no right on her child.
The respondent last entered the United States in August 1940 at Buffalo, N.Y., following a visit to Canada of one day. It was his intention to resume his residence in the United States, and he did not have an immigration visa, passport, or other official document in the nature of a passport showing his origin and identity. He was admitted upon his false representation that he was a native-born citizen of the United States. The documentary charges are not sustained. Executive Order 8430 of June 5, 1940, required that immigrants entering the United States must present unexpired passports or official documents in the nature of passport and immigration visas. However, on October 17, 1941, the Secretary of State, with respect to returning resident aliens who entered the United States illegally from contiguous territory between July 1, 1940, and September 30, 1940, waived documentary requirements if there was a record of a previous lawful admission for permanent residence. The respondent's case satisfies the foregoing conditions.
On May 25, 1942, the respondent was sentenced to imprisonment for a term of 18 months because of his conviction in the United States District Court for the Northern District of Illinois, Eastern Division, of the crime of impersonating a Federal officer or employee with intent to defraud in violation of section 76, title 18, U.S.C.A. The indictment, in two counts, charged the commission of the offense on December 30, 1941, and January 11, 1942.
The respondent urges that his entry in 1940 is insufficient as a basis for the criminal charge. However, the duration of an absence and the lack of an intention to remain in a foreign country are immaterial as affecting the deportation of an alien for an offense committed within 5 years after his reentry ( United States ex rel. Kowalenski v. Flynn, 17 F. 2d 524 (D.C., N.Y., 1927)).
In the case of C---- E. F---- (56032/18), we held that the commission of an offense in violation of section 76, title 18, U.S.C.A., involved moral turpitude. We there said:
* * * the indictment and conviction for impersonation of a Federal officer carried with it the element of deceit and fraud in that the impersonation was the only means used by the respondent to perpetrate the crime of obtaining property by fraud, to wit: defrauding the intended victim of a valuable watch. Clearly the element of moral turpitude is involved.
In the case under consideration the indictment charges that the respondent "with intent to defraud Mr. and Mrs. M---- C----, unlawfully and feloniously did falsely assume and pretend to be an officer and employee acting under and by authority of the United States, to wit: a civilian investigator with the United States Army Air Corps."
Except as to the person intended to be defrauded and the date of the offense, the second count of the indictment is identical.
Section 76 of title 18, U.S.C.A., was recently considered by the Supreme Court in United States v. Lepowitch, 87 L. Ed. 797 (Advance Opinions No. 13, decided April 9, 1943). There the Court pointed out that there were two distinct crimes specified in section 76, as follows:
The section reads as follows:
Falsely pretending to be 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.
(1) Impersonation of an officer of the Government and acting as such with intent to defraud either the United States or any person, and,
(2) Impersonation of an officer of the Government and acting as such with intent to defraud and demanding or obtaining any valuable thing.
The Court said:
The first clause of this statute, the only one under consideration here, defines one offense; the second clause defines another. While more than 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 persuade us that under it, a person may be defrauded although he parts with something of no measurable value at all.
The Court pointed out that "if the statutory language alone has been used, the indictment would have been proof against demurrer under Lamar v. United States, 241 U.S. 103, 116, 60 L. Ed. 912, 917; Pierce v. United States, 314 U.S. 306, 307, 86 L.Ed. 226, 228." The opinion referred to United States v. Barnow, 239 U.S. 74, 60 L. Ed. 155 "in which we held that the purpose of the statute was `to maintain the general good repute and dignity of the [Government] service itself.'"
It is clear that the indictment in the present case is laid under the first clause of section 76; whereas in the F---- case the respondent was charged with a violation of the second clause of section 76; that is demanding or obtaining a "valuable thing."
In the Lepowitch case the intent to defraud was specified as an attempt by the defendants to elicit information from a third person concerning the whereabouts of another, the Court saying: "We hold that the words `intent to defraud' in the context of this statute do not require more than the defendant's having by artifice and deceit sought to cause the deceived person to follow some course he would not have pursued but for the deceitful conduct." In Kane v. United States, 120 F. 2d 990 (C.C.A. 8, 1941) the defendant was held to have violated the statute because by pretending to be an agent of the Department of Justice he obtained a written statement from a third person, the court saying (p. 992): "* * * the obtaining of the written, signed statement, as knowingly false and felonious and contrary to the statute, to us imports definitely and exclusively an intent to defraud Woodson of the statement, and clearly not a benevolent purpose."
As far as we can see, under this statute the meaning of the word fraud is extremely broad. Thus, for purposes of illustration, a wife who, to ascertain the whereabouts of her errant husband, obtains such information by falsely misrepresenting herself to her informant as a Federal officer might well be convicted under the first clause of section 76. We hold that the "fraud" in violation of the first clause of section 76 does not necessarily involve moral turpitude. There then remains for consideration whether the act of impersonating a Federal officer in and of itself involves moral turpitude. Although it may be admitted that such an impersonation tends to degrade the good repute and dignity of the Government service, we are not prepared to say that it indicates the baseness, vileness, and depravity of mind inherent in moral turpitude. If a crime is one involving moral turpitude, it is because the act denounced by the statute grievously offends the moral code of mankind and would do so even in the absence of a prohibitive statute (Otis, J. in United States v. Carrollo, 30 F. Supp. 3).
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 Sweden;
(2) That the respondent was admitted for permanent residence on April 12, 1921;
(3) That the respondent last entered the United States in August 1940 at Buffalo, N.Y.;
(4) That the respondent did not have an immigration visa, passport, or other official document in the nature of a passport showing his origin and identity;
(5) That the respondent was returning to the United States to resume his residence, following a one-day visit to Canada;
(6) That the respondent effected his entry by falsely representing himself to be a citizen of the United States;
(7) That on May 25, 1942, the respondent was sentenced to imprisonment for a term of 18 months because of his conviction in the United States District Court for the Northern District of Illinois, Eastern Division, of the crime of impersonating a Federal officer with intent to defraud in violation of section 76, title 18, U.S.C.A.;
(8) That said crimes were committed on December 30, 1941, and January 11, 1942.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation in that he entered by false and misleading statements, thereby entering without inspection;
(2) That under section 19 of the Immigration Act of 1917 and the Passport Act approved May 22, 1918, as amended, the respondent is not subject to deportation in that at the time of entry he did not present an unexpired passport or other official document in the nature of a passport issued by the government or 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;
(3) That under sections 13 and 14 of the Immigration Act of 1924 the respondent is not subject to deportation in that at 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;
(4) That under section 19 of the Immigration Act of 1917, the respondent is not subject to deportation in that on or after May 1, 1917, he has been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within 5 years after entry, to wit: violation of section 76, title 8, U.S.C.A. (impersonation of a Federal officer or employee);
(5) That under section 20 of the Immigration Act of 1917, the respondent is deportable to Sweden at Government expense.
OTHER FACTORS: The respondent is presently serving a sentence of 18 months because of his conviction under section 76, to which we have heretofore referred. Since we have found that the respondent is not deportable under the provisions of section 19 (d) of the Immigration Act of 1917, as amended, he is entitled to be accorded an opportunity to apply for discretionary relief under the provisions of section 19 (c). The respondent is divorced. He has no children. His only relative in the United States is his mother. In view of the recentness of the respondent's criminal record, we would deny his application for voluntary departure in lieu of deportation. Consequently, it would serve no purpose to reopen the proceedings to afford him an opportunity to apply therefor.
ORDER: It is ordered that the alien be deported to Sweden at Government expense on the following charge: that he is in the United States in violation of the Immigration Act of 1917, in that he entered by false and misleading statements, thereby entering without inspection.
It is further ordered, That execution of the warrant be deferred until the alien is released from imprisonment.
This case was referred to me for review by the Board of Immigration Appeals.
The respondent, an alien, was convicted of a crime committed within 5 years after entry and sentenced to imprisonment for a term of 18 months. The indictment, to which respondent pleaded guilty, is in two counts, which are the same, except as to the persons defrauded, and the dates of the offenses. One count charges that respondent "with intent to defraud Mr. and Mrs. C----, unlawfully and feloniously did falsely assume and pretend to be an officer and employee acting under and by authority of the United States, to wit: a civilian investigator with the United States Army Air Corps."
The offenses are laid under the first part of U.S.C., title 18, section 76, which provides in pertinent part: "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 * * * and shall take upon himself to act as such, * * *."
The question is whether the respondent has been convicted of a crime involving moral turpitude within the meaning of the Immigration Act of February 5, 1917, so as to authorize his deportation. The Board of Immigration Appeals, with one member dissenting, holds that the crime of which respondent was convicted does not involve moral turpitude.
It is my opinion that the crime does involve moral turpitude.
The crime is a serious one. It includes impersonation of an officer or employee of the Government, and acting as such with intent to defraud. Crimes involving fraud are generally considered by the courts to involve moral turpitude ( United States ex rel. Millard v. Tuttle (E.D., La.), 46 F. 2d 342; United States ex rel. Popoff v. Reimer (C.C.A. 2), 79 F. 2d 513, 515; Mercer v. Lence (C.C.A. 10), 96 F. 2d 122, 124, and cases cited; The Washington ( United States ex rel. Schreiber v. Reimer) (S.D., N.Y.), 19 F. Supp. 719, 722, and 39 Op. Atty. Gen. 221, 222).
The purpose of the statute is to protect innocent persons and also to protect the Government. As stated in United States v. Barnow, 239 U.S. 74, 78:
In order that the vast and complicated operations of the Government of the United States shall be carried on successfully and with a minimum of friction and obstruction, it is important — or, at least, Congress reasonably might so consider it — not only that the authority of the governmental officers and employees be respected in particular cases, but that a spirit of respect and good-will for the Government and its officers shall generally prevail. And what could more directly impair this spirit than to permit unauthorized and unscrupulous persons to go about the country falsely assuming, for fraudulent purposes, to be entitled to the respect and credit due to an officer of the Government? It is the false pretense of Federal authority that is the mischief to be cured; of course, only when accompanied with fraudulent intent, but such a pretense would rarely be made for benevolent purposes.
Cases of moral turpitude include not only frauds involving property rights, but also those affecting the Government, such as frauds relating to obtaining rights of citizenship ( United States v. Reimer, 79 F. 2d 513, supra). Petit larceny and similar crimes have been held to involve moral turpitude. The act of impersonating an officer or employee of the Government "with intent to defraud" would, I think, be generally considered to be a base or vile act done contrary to justice, honesty, or good morals. If permitted it would lessen the authority of the Federal Government and cause people to lose confidence in its integrity. Such acts would have far more serious consequences to the people and their Government than crimes of petit larceny.
It is my opinion, therefore, that the crime of which the respondent was convicted involves moral turpitude within the meaning of that term as used in the Immigration Act of 1917.
That part of the decision of the Board of Appeals that holds that the crime of which the respondent was convicted, as above stated, is not a crime involving moral turpitude and that respondent is not deportable on account of such conviction is hereby reversed.
This case presents the question whether the crime of impersonating a Federal officer or employee with intent to defraud constitutes a crime involving moral turpitude, and if committed by an alien, within 5 years after entry, forms basis for deportation. The majority hold that such crime does not involve moral turpitude, and is not sufficient ground for deportation, unless the fraud is coupled with demanding and obtaining a "valuable thing," with which view the writer does not agree. The case is one of first impression and, therefore, of special importance because it will establish a precedent to be followed in subsequent cases.
The statute that has been violated reads as follows:
Falsely pretending to be 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 (sec. 76, title 18, U.S.C.A.).
The alien was indicted and convicted on two counts and imprisoned for a term of 18 months, the first count charging that the alien "with intent to defraud Mr. and Mrs. C----, unlawfully and feloniously did falsely assume and pretend to be an officer and employee acting under and by authority of the United States, to wit: a civilian investigator with the United States Army Air Corps." The second count in the indictment is identical, except as to the person intended to be defrauded and the date of the offense committed.
The Supreme Court of the United States has construed the statute which we are considering in the recent case of United States v. Lepowitch, 87 L. Ed. 797 (Advance Opinions No. 13, decided April 9, 1943).
The Supreme Court points out that there are two separate and distinct crimes set forth in section 76, as follows:
(1) Impersonation of an officer of the Government and acting as such with intent to defraud either the United States or any person, and
(2) Impersonation of an officer of the Government and acting as such with intent to defraud and demanding or obtaining any valuable thing.
The Court says:
The first clause of the statute, the only one under consideration here, defines one offense; the second clause defines another. While more than 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 persuade us that under it, a person may be defrauded although he parts with something of no measurable value at all.
The case that we have under consideration also involves violation of the first clause of the statute the same as the Lepowitch case. It does not appear from the indictment that the fraud was "more than mere deceitful attempt to affect the course of action of another" nor is there alleged "an intent to obtain any valuable thing." The further words of the Court, "the very absence of these words of limitation in the first portion of the act persuade us that under it, a person may be defrauded although he parts with something of no measurable value at all" are applicable to the instant case.
The Supreme Court in the case of United States v. Barnow, 239 U.S. 74, 60 L. Ed. 155, said:
In order that the vast and complicated operations of the Government of the United States shall be carried on successfully and with a minimum of friction and obstruction, it is important — or, at least Congress reasonably might so consider it — not only that the authority of the governmental officers and employees be respected in particular cases, but that a spirit of respect and goodwill for the Government and its officers shall generally prevail. And what could more directly impair this spirit than to permit unauthorized and unscrupulous persons to go about the country falsely assuming, for fraudulent purposes, to be entitled to the respect and credit due to an officer of the Government? It is the false pretence of Federal authority that is the mischief to be cured; of course, only when accompanied with fraudulent intent, but such a pretense would rarely be made for benevolent purposes. * * * It is the aim of the section not merely to protect innocent persons from actual loss through reliance upon false assumptions of Federal authority, but to maintain the general good repute and dignity of the service itself. [Italics supplied.]
The indictment in the case we are considering alleges that the alien "with intent to defraud * * * unlawfully and feloniously did falsely assume and pretend to be an officer and employee acting under and by authority of the United States, to wit: a civilian investigator with the United States Army Air Corps."
In Kane v. United States, 120 F. 2d 990 (C.C.A. 8, 1941), the defendant was convicted of violating the statute because by pretending to be an agent of the Department of Justice he obtained a written statement from a third person, the court saying (p. 992):
* * * the obtaining of the written, signed statement, as knowingly false and felonious and contrary to the statute, to us imports definitely and exclusively an intent to defraud Woodson of the statement, and clearly not a benevolent purpose.
In the L---- case the intent to defraud consisted of an attempt to elicit information from a third person concerning the whereabouts of another, the court saying:
We hold that the words "intent to defraud" in the context of this statute do not require more than the defendant's having by artifice and deceit sought to cause the deceived person to follow some course he would not have pursued but for the deceitful conduct.
This Board has not heretofore passed upon the question whether a violation of the first clause of the statute, which we are now considering, involves moral turpitude. The Board has held that a violation of the second clause, wherein the fraud practiced is with the intent of obtaining a "valuable thing" does involve moral turpitude, and so held in the case of C---- E. F---- (56032/18). We there said:
* * * the indictment and conviction for impersonating of a Federal officer carried with it the element of deceit and fraud in that the impersonation was the only means used by the respondent to perpetrate the crime of obtaining property by fraud, to wit: defrauding the intended victim of a valuable watch. Clearly, the element of moral turpitude is involved.
It requires no argument, it seems to me, to establish the proposition that the obtaining of certain information may often be far more serious and damaging in its consequences to the victim of the deceit and the fraud practiced by the guilty impersonator than the mere obtaining of an article of personal property. This would be true whether the victim is a private citizen or a bona-fide officer or employee of the Government who might thereby sustain serious damage and financial loss. This would be so in ordinary peacetime and particularly so in time of war when secret military information might be obtained and espionage and spy activities more successfully carried on by one who impersonates an officer or employee of the United States. This is substantially the view that the Supreme Court has taken in every case that has come before it. The Court has not directly passed upon the exact question we have under consideration of whether the offense is one involving moral turpitude. However, the Court has strongly indicated in no uncertain terms that it considers the offense to be one of a very grave and serious nature, obviously more so than the ordinary common crimes of petit larceny, perjury, and the like, which are universally held to involve moral turpitude. The term "moral turpitude" has been generally defined as an "act of baseness, vileness, or depravity in private and social duties owing to fellow men or society in general, contrary to accepted and customary rules" ( Ng Sui Wing v. United States, 46 F. 2d 755). The act of impersonating an officer or employee of the Government in order to deceive and defraud would appear to be base and vile and contrary to accepted and customary rules. It is important in this connection to note that the crime of fraud is, per se, moral turpitudinous. It was so held in Mercer v. Lence, 96 F. 2d 122, where the Circuit Court of Appeals, 10th Circuit, said:
Record of conviction adequately discloses that he was convicted for conspiring to defraud a person by deceit and falsehood. Under our own standards, this involves an offense of moral turpitude, our courts looking upon such crimes as involving moral turpitude within the meaning of such statute. (Citing a long list of cases.)
There would seem to be no escape from the conclusion that the crime of impersonating a Federal officer or employee "with intent to defraud either the United States or any person," quoting the language of the statute, is a crime involving moral turpitude.
Finally, there remains the additional very compelling reason why the foregoing position would appear to be sound. As the Supreme Court pointed out in the Barnow case, it is a crime that degrades the general good repute and dignity of the Government service. It seems to the writer that the false pretense and unauthorized exercising of Federal authority is a crime against the sovereignty of the Government itself, and if committed by any considerable number of persons could and would undermine and destroy the whole structure of the Government. It is inherently an act of disloyalty to the Government. It must, therefore, be a crime that involves moral turpitude.