A-8031641
Decided by Board September 27, 1951
Crime — Unlawful compulsion (1949) — Paragraph 240, German Criminal Code — Recourse to "conviction record" to determine if offense involves moral turpitude.
The orginal charge was subornation of perjury, but the court found him guilty of unlawful compulsion (ordering the charge amended to read "Paragraph 240 of the German Criminal Code, instead of paragraph 160, 48, 43."). Paragraph 240 ( supra) is broad in scope and might include in its definition crimes which do and some which do not involve moral turpitude, so recourse may be had to examination of the "conviction record" (which includes a statement of record made by the court in sentencing defendant) to ascertain whether the requisite moral obloquy is present. Such a statement made by the court; as well as its action In reducing the charge, lead to the conclusion that he is not guilty of a crime involving moral turpitude and has not admitted the commission of such a crime.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Convicted of crime involving moral turpitude, unlawful compulsion, in violation of section 240 of the German Criminal Code.
Act of 1917 — Admits crime Involving moral turpitude — unlawful compulsion, in violation of section 240 of the German Criminal Code.
BEFORE THE BOARD
Discussion: Appellant is 35 years old, a native and citizen of Poland. He seeks to enter the United States as a displaced person under the Displaced Persons Act of 1948, as amended. He was ordered excluded by a board of special inquiry at Schweinfurt, Germany, on December 21, 1950. He appeals from the decision of exclusion.
The records show that appellant was a farmer and was deported from Poland to Germany to work as a farmworker in 1939. He was previously rejected by a United States consul because of illiteracy. He has now overcome that obstacle. The board of special inquiry found that appellant was convicted for violation of paragraph 240, German Criminal Code on July 13, 1949, in the United States Summary Military Court at Coburg, Germany, that he admitted the commission of this offense, and that violation of that section of the German Criminal Code involves moral turpitude. The board found him inadmissible to the United States as a person who has been convicted of a crime involving moral turpitude and who admits the commission of such crime.
The Commissioner's opinion discussed at some length the facts with regard to the incident which resulted in appellant's conviction, and concluded that "the appellant attempted under threats of bodily injury to suborn two witnesses in a judicial proceeding. It is our view that subornation of perjury is an offense in which moral obloquy inheres." This discussion of the facts of the case and of what occurred at the criminal trial is unnecessary, and indeed is inappropriate in view of U.S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2, 1988), and similar cases. That line of cases limits us to consideration of the record of conviction, by which, says the court, in the Zaffarano case, "* * * we mean the charge (indictment) plea verdict, and sentence. The evidence upon which the verdict was rendered may not be considered, nor may the guilt of the defendant be contradicted."
We interpret the rule to mean that we may also consider any statement of record made by the court in sentencing a defendant. The record shows that the court ordered the charge amended to read "Paragraph 240 of the German Criminal Code, instead of paragraph 160, 48, 43." The court then said:
J---- K---- as Me police witnessed that you have behaved correctly and did not use any threats against the women, court is sentencing you to 1 month's confinement, but for the above reasons is suspending the sentence pending your good behavior.
The two sections of the German Criminal Code here involved are:
Unlawful Compulsion. — 240 (as amended 29 May 1943, RGBI I 339). — Whoever unlawfully compels another, by force or threats of considerable evil to act, to acquiesce in any act, or to omit to act shall be punished for unlawful compulsion by imprisonment or fine, and in especially serious cases by confinement in a penitentiary or imprisonment for not less than 6 months.
The act is unlawful whenever the application of force or the infliction of the threatened evil for the purpose intended, contradicts the people's sound sentiment (gesundes Velksempfinden).
The attempt is punishable
Subornation of a False Oath. — 160. — Whoever suborns another to take a false Oath shall be punished by imprisonment not to exceed two years, in addition to which be may be sentenced to loss of civic rights, and whoever suborns another to make a false declaration in lien of an oath shall be punished by imprisonment not to exceed 6 months.
The attempt is punishable.
Another section, 159, is entitled "Attempted Subornation of Perjury." Appellant was not charged under this section.
The charge sheet shows that the charge was changed to paragraph 240 of the German Criminal Code, but the parenthetical explanation of what was contained in the sections of the charge originally placed there was not changed. That is, it continues to read, "Threatening and intimidation of witnesses, subornation of perjury." However, the record of the United States Courts of the Allied High Commissioner for Germany, Tenth Judicial District, shows that the violation charged was of paragraph 240 German Criminal Code, unlawful compulsion and shows that appellant was sentenced to one month imprisonment, suspended on good behavior.
Contrary to the Commissioner's finding, the court concluded that this man was not guilty of subornation of perjury as originally charged, that he was guilty, at "most, of unlawful compulsion. Section 240, the statute in question, is broad in scope and might include offenses which would not involve moral turpitude. When a statute is divisible or separable and so drawn as to include within its definition crimes which do and some which do not involve moral turpitude, the record of conviction may be examined to ascertain whether the requisite moral obloquy is present. It is our conclusion that in view of the court's statement that he had "behaved correctly and did not use any threats against the women," and the court's action in reducing the charge from one under section 160 to one under section 240 of the code, that he is not guilty of the commission of a crime involving moral turpitude, nor has he admitted the commission of such a crime.
The immigration visa presented by the appellant, valid for a period of 4 months from the date of issuance, October 6, 1950, has now expired. The Assistant Commissioner found him inadmissible on the additional ground that he is an immigrant not in possession of a valid immigration visa. It will be necessary for the appellant to secure a new immigration visa.
Order: It is ordered that the appellant be admitted to the United States for permanent residence under the Displaced Persons Act of 1948, as amended, when in possession of the necessary documents.