A-2612757
Decided by the Board December 24, 1953
Crime involving moral turpitude — Conspiracy in violation of 18 U.S.C. 88, Second World War Powers Act of 1942.
(1) A conviction on a conspiracy charge does not involve moral turpitude unless the basic crime which was the object of the conspiracy involves moral turpitude.
(2) Conspiracy to illegally transfer and use gasoline ration stamps in violation of ration order No. 5C issued under the Second World War Powers Act of 1942 is not a crime involving moral turpitude, there being no indication in the statute, the regulation, or the record of conviction that an intent to defraud was a necessary part of the crime.
CHARGE:
Warrant: Act of 1917 — Sentenced more than once — Conspiracy, 18 U.S.C. 88; Conspiracy, Second World War Powers Act — Receiving stolen property.
BEFORE THE BOARD
Discussion: The case comes forward pursuant to certification under regulations then in existence of the order of the Acting Assistant Commissioner dated August 19, 1952, finding the respondent subject to deportation on the charge stated in the warrant of arrest and ordering that he be deported.
The record relates to a native and citizen of Italy, 41 years old, male, who last entered the United States at the port of Boston, Mass., on January 6, 1920, ex SS. Cretic.
Deportation is sought on the ground that the respondent has been sentenced more than once to imprisonment for terms of 1 year or more because of conviction in this country of two or more crimes involving moral turpitude committed after entry. It is conceded that the respondent's conviction at Boston, Mass., on April 13, 1950, of the offense of receiving stolen goods, committed on January 25, 1950, involves moral turpitude. It is the contention of counsel that the conspiracy convictions in violation of 18 U.S.C. 88 do not involve moral turpitude.
It is well established that a conviction on a conspiracy charge does not involve moral turpitude unless the basic crime which was the object of a conspiracy involves moral turpitude. On October 19, 1944, at Boston, Mass., the respondent was convicted on his plea of guilty of conspiracy to illegally transfer gasoline ration coupons in violation of ration order No. 5C issued under the Second World War Powers Act of 1942 and was sentenced to imprisonment for a term of 15 months. The indictment upon which the respondent was convicted charged that he unlawfully, knowingly, corruptly, and feloniously conspired and agreed together with others to commit an act against the United States, that is to say that they would unlawfully, knowingly, and willfully commit offenses denounced in and by the Second World War Powers Act of 1942 under the provisions of ration order No. 5C, as amended, that is to say, they conspired and agreed to transfer, receive and possess gasoline ration coupons otherwise than in accordance with ration order No. 5C. The second conspiracy conviction on February 20, 1945, at Boston, Mass., shows a conviction of conspiracy to violate the Second World War Powers Act of 1942 under ration order No. 5C as a result of which he was sentenced to imprisonment for a term of two years beginning after his release from the previous sentence. The indictment shows that the respondent and others unlawfully, knowingly, willfully, and feloniously conspired, combined, confederated, and agreed together and with each other that they would commit the offenses denounced in and by the Second World War Powers Act of 1942 and ration order No. 5C, that is to say, the defendants did unlawfully, knowingly, and willfully conspire and agree to acquire, receive, possess, transfer, and use gasoline ration coupons.
The offense which forms the substantive crime of the conspiracy charge to the respondent is the Second World War Powers Act of March 27, 1942. Section 2 (a) (5) of the Second World War Powers Act (50 U.S.C. app. 633 (2) (a) (5)) provides that any person who willfully performs any act prohibited, or willfully fails to perform any act required by, any provision of this subsection (a) or any rule, regulation or order thereunder, whether heretofore or hereafter issued, shall be guilty of a misdemeanor, and shall, upon conviction, be fined not more than $10,000 or imprisoned for not more than 1 year, or both. The Second World War Powers Act, disclosing its purpose "to expedite the national defense," to "further expedite the prosecutions of war," to "establish priorities and allocate materials" in order to insure "the fulfilment of requirements for the defense of the United States" contains a statement of policy and purpose sufficiently clear and standards by which the purpose is to be worked out sufficiently intelligible to sustain the constitutionality of the act.
151 A.L.R. 1483.
As set forth by the indictment, the specific violation complained of is violation of ration order No. 5C which provides as follows:
Criminal prosecutions. (a) Any person who knowingly falsifies an application, or any other record, report or certificate made pursuant to or required by the terms of ration order No. 5C or who otherwise knowingly furnishes false information to any board or any other agent, employee, or officer of the Office of Price Administration or falsifies or who conceals or covers up a material fact, by any trick, scheme or device, or who makes or causes to be made any false or fraudulent statements, or representations, in any matter within the jurisdiction of the Office of Price Administration, may upon conviction be fined not more than $10,000 or imprisoned for not more than 10 years, or both, and shall be subject to such other penalties or action as may be prescribed by law. Any person who conspires with another person to perform any of the foregoing acts or to violate any provision of ration order No. 5C may upon conviction be fined not more than $10,000 or imprisoned for not more than 2 years, and shall be subject to such other penalties as may be prescribed by law.
(b) Any person who willfully performs any act prohibited or willfully fails to perform any act required, by any provision of ration order No. 5C may upon conviction be fined not more than $10,000 or imprisoned for not more than 1 year, or both, and shall be subject to such other penalties or action as may be prescribed by law.
Gasoline regulations as set forth pursuant to ration order No. 5C control the use and acquisition of gasoline as a means to conserve rubber and to maintain the transportation system. To safeguard against violation of the fundamental scheme, control is extended to gasoline generally, whether or not for motor vehicles.
In determining whether a particular offense involves moral turpitude, the scope of inquiry is limited to the statute, the regulations issued thereunder, and the record of conviction including the complaint information or indictment, the plea, verdict and sentence. The question as to whether or not a certain crime involves moral turpitude must be determined from the judgment of conviction, and if a crime does not in its essence involve moral turpitude, resort cannot be had to evidence outside the record to show that the offense involved moral turpitude.
United States ex rel. Robinson v. Day, 51 F. (2d) 1022; United States ex rel. Zaffarano v. Corsi, 63 F. (2d) 757; Matter of C----, A-5595280, Int. Dec. No. 482, (Oct. 12, 1953).
United States ex rel. Mylius v. Uhl, 210 Fed. 860, 863 (C.C.A. 2, 1914).
The finding of moral turpitude which has been made below appears to have been predicated upon a consideration of the fact that there was in existence at the time the offense was committed a state of war and therefore this violation of wartime regulations involved moral turpitude. It is not believed that such considerations are proper to determination of moral turpitude. Using similar reason it might be said that a curfew violation would involve moral turpitude.
In the instant case we have carefully considered the statute, the regulation and the record of conviction. There is no indication contained therein that an intent to defraud was a necessary part of the crime. The crime seems to concern itself with a transfer or use of gasoline ration stamps not in accordance with the Second World War Powers Act and ration order No. 5C. The evil intent or depraved motive which is a necessary ingredient to a finding of moral turpitude is nowhere reflected in the offense herein committed. It is therefore concluded that the crime which forms the basis of the conspiracy does not involve moral turpitude and it follows therefore that the conspiracy to commit such a crime likewise does not involve moral turpitude. It is therefore found that the second crime necessary to support the warrant charge does not involve moral turpitude and it follows that the proceedings must be terminated.
Order: It is ordered that the proceedings be and the same are terminated.