E-081204.
Decided by Board December 14, 1954.
Pardon — Crimes involving moral turpitude — Conviction under Mann Act.
(1) A legislative pardon is not effective to avert deportation on a charge under section 241 (a) (4) of the Immigration and Nationality Act.
(2) An arrest as a suspicious person and "bunco" in Pittsburgh, Pa., followed by a Magistrate's Order in 1924 sentencing respondent to pay a fine of $100 or serve 60 days in the workhouse is not a conviction for larceny.
(3) If the violation of a law under any and all circumstances constitutes moral turpitude, then all convictions under the law involve moral turpitude. But if the law punishes acts which do not involve moral turpitude, as well as those which do, then no conviction under that law involves moral turpitude. (See Matter of K----, A-8031641, 4 IN Dec. 490, concerning divisible or separable statutes.)
(4) Where an indictment charges several acts, any one of which would be sufficient to support the general verdict of guilty rendered by the jury, the inference most favorable to the alien must be drawn.
(5) Simple fornication is not a crime involving moral turpitude.
(6) A conviction on July 30, 1942, for violation of the Mann Act (18 U.S.C.A. 398, now 2421) based upon an indictment charging that respondent transported a female with intent to "induce, entice and compel" her to engage "in illicit sexual intercourse with him" is not one for a crime involving moral turpitude.
(7) An alien who engages in extra-marital relations with a willing woman over a ten-day period is not deportable as one who has procured or attempted to procure a person for the purpose of prostitution or for any other immoral purpose.
(8) The words "other immoral purpose" in section 212(a) (12) of the Immigration and Nationality Act refer to acts of a like character with prostitution.
CHARGES:
Warrant: Act of 1952 — Convicted of two crimes involving moral turpitude, to wit: (1) violation of White Slave Traffic Act; (2) fraudulent conversion, larceny, receiving stolen goods and conspiracy to steal; and (3) larceny.
Act of 1952 — Procurer or importer of persons for immoral purpose.
BEFORE THE BOARD
Discussion: The case is before us by certification.
The respondent is a 57-year-old single male, a native and citizen of Italy who has resided in the United States since his lawful admission for permanent residence on June 4, 1914.
The special inquiry officer found the respondent not deportable on either of the grounds stated above and ordered termination of proceedings. The Commissioner of Immigration and Naturalization opposes this action and asks that the respondent be ordered deported on each of the grounds stated above.
Deportation of the respondent on the first charge is sought under that portion of section 241 (a) (4) of the Immigration and Nationality Act, 8 U.S.C.A. 1251 (a) (4), which makes deportable an alien "who at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, * * *." The Service is of the opinion that respondent has been convicted of crimes involving moral turpitude on three occasions. The special inquiry officer found the evidence established conviction of only one such crime — that being the crime summarized after numeral (2) in the caption. It is the one for which respondent was convicted in Pennsylvania in 1926 on two indictments charging four offenses — fraudulent conversion; larceny; receiving stolen goods; and conspiracy to steal. As a result of the conviction, the respondent received a sentence of one year. He served this sentence and thereby received a legislative pardon for the crimes. There is a question as to whether he was convicted for all four offenses, and if not, for which particular offense or offenses. The issue is not important. Even if he had been convicted for all four offenses, it would, for deportation purposes, have been regarded as conviction for one crime since all the offenses were based upon actions arising from a single scheme of criminal misconduct occurring on May 29, 1925, when respondent appropriated $1800 belonging to M---- P----. Conviction for any of the offenses involves moral turpitude.
Counsel is of the opinion that this conviction cannot be the basis for deportation proceedings because of the legislative pardon respondent received after serving his sentence. We have previously considered a similar contention and ruled that while a legislative pardon, under the law previous to the Immigration and Nationality Act of 1952, had been effective to avert deportation, one who held such a pardon and was therefore, prior to the Immigration and Nationality Act, immune from deportation, could nevertheless be deported under the Immigration and Nationality Act which specifically provides that a pardon to avert deportation must be issued by the President of the United States or by the Governor of any of the several States-a provision we have held is retroactive ( Matter of R----, E-080924, 5 IN Dec. 612; section 241 (b), Immigration and Nationality Act, 8 U.S.C.A. 1251 (b)).
For the second of the two convictions of crime involving moral turpitude which must be found to exist before an alien is deportable, the Service relies upon a Magistrate's Order in 1924 fining respondent $100 or imprisonment for 60 days in the workhouse in Pittsburgh following an arrest as a suspicious person and "bunco" in Pittsburgh, Pennsylvania, on June 3, 1924. The Service contends that this incident resulted in respondent's conviction for the crime of larceny — the crime set forth after numeral (3) in the caption. The special inquiry officer concluded that the Service had failed to bear its burden of establishing that there had in fact been a conviction of larceny. The matter has been fully discussed by him on pages 3 and 7 of his order. We concur in his finding. We note also counsel's uncontradicted statement that "bunco" is not a crime in Pennsylvania and that larceny is not a minor offense which may be disposed of summarily by a magistrate. The matter requires no further discussion. The conviction in question cannot, therefore, serve as a ground for deportation.
Finally, the Service relies upon respondent's conviction in 1942 for violation of the Mann Act as the second of the two crimes involving moral turpitude which must be found to exist to render respondent subject to deportation. If it be found, as was found by the special inquiry officer, that the conviction does not involve moral turpitude, then it must be concluded that this record establishes the conviction of only one crime involving moral turpitude and the charge based on the criminal grounds must necessarily fail.
The Mann Act conviction occurred on July 30, 1942, when respondent was found guilty of the "offenses" charged in count one of a three count indictment. He was sentenced to six months' imprisonment and fined $1500. Count one which was based on 18 U.S.C.A. 398, now 2421, charges respondent with aiding and assisting in obtaining transportation and in transporting from New Jersey to Florida, one L---- A----, "with intent and purpose * * * to induce, entice and compel * * * (her) to engage in an immoral practice, to wit, the practice of illicit sexual intercourse with him, * * *." We must determine whether this conviction involves moral turpitude. He was found not guilty on counts two and three.
Count two was laid under 18 U.S.C.A. 399, now 2422. It charged respondent with persuading the female in question to pass state lines "for the immoral purpose of illicit sexual intercourse with him." Count three was laid under the same section as was count one and charged the respondent with causing the female to be transported "with intent to induce, entice, and compel, the said L---- A---- to engage in the immoral practice of illicit intercourse with him."
The special inquiry officer held that moral turpitude was not involved in the conviction. He found that the fundamental crime charged was the practice of illicit sexual intercourse between parties whom there was nothing to show were married and that the offense in essence amounted to the commission of fornication, a crime not involving moral turpitude. This Board has previously ruled in a similar manner, in a case not reported and not available to the special inquiry officer ( Matter of K----, 56137/320 (1944)).
The Service argues that Matter of K----, ( supra), was incorrectly decided. It is argued that the inherent nature of the crime spelled out by the statute is such as to require a finding of moral turpitude in every conviction. The Service theory is based upon the belief that the phrase in the indictment charging the commission of "other immoral practice" (which here the Service equates with "other immoral purpose"), requires a finding of action that amounts to more than simple fornication before a conviction can be obtained. In other words, the conduct must be in the nature of prostitution, concubinage, seduction, or corruption from virtue to obtain a conviction. Furthermore, it is urged that fornication should be found to be a crime involving moral turpitude.
Counsel argues that the statute, by its inherent nature, does not define a crime necessarily involving moral turpitude; that respondent was not convicted for transporting a woman for purposes of prostitution or commercial vices; and that the specific act of which he was convicted amounts to no more than a conviction for inducing a woman to commit an act or acts of fornication, a crime not involving moral turpitude. Furthermore, counsel urges that the offense is less blameworthy than simple fornication since the gist of the offense was assisting the woman to obtain transportation and it was unnecessary to establish that there had actually been sexual relations.
In view of the Commissioner's urgent representations that the Matter of K----, supra, was incorrectly decided, and that the crime in question involves moral turpitude, we shall deal fully with the problem.
In determining whether a crime involves moral turpitude, the courts have given us certain standards which we must follow ( United States ex rel. Mylius v. Uhl, 203 Fed. 152 (S.D.N.Y., 1913), affd. 210 Fed. 860 (C.C.A. 2, 1914); United States ex rel. Robinson v. Day, 51 F. (2d) 1022 (C.C.A. 2, 1931); United States ex rel. Manzella v. Zimmerman, 71 F. Supp. 534, (E.D. Pa., 1947); United States ex rel. Teper v. Miller, 87 F. Supp. 285 (S.D.N.Y.); Vidal Y Planas v. Landon, 104 F. Supp. 384 (S.D. Calif., 1952); 37 Op. Atty. Gen. 293; Matter of S----, A-5702971, 2 IN Dec. 353, 357, 361; Matter of E----, 56063/394, 2 IN Dec. 134, 145).
The test requires us to first determine what law or specific portion thereof has been violated ( United States ex rel. Teper v. Miller, supra, and cases cited there), and then, without regard to the act committed by the alien, to decide whether that law inherently involves moral turpitude ( United States ex rel. Mylius v. Uhl, supra); that is, whether violation of the law "under any and all circumstances," would involve moral turpitude ( United States v. Zimmerman, supra; Matter of S----, supra, pp. 357, 361; Matter of E----, supra, 145). If we find that violation of the law under any and all circumstances involves moral turpitude, then we must ( United States ex rel. Teper v. Miller, supra), conclude that all convictions under that law involved moral turpitude although the "particular acts evidence no immorality" ( United States ex rel. Mylius v. Uhl, supra). If, on the other hand, we find that the law punishes acts which do not involve moral turpitude as well as those which do involve moral turpitude, then we must rule that no conviction under that law involves moral turpitude, although in the particular instance conduct was immoral ( United States ex rel. Robinson v. Day, supra).
The rule set forth exists because a standard must be supplied to administrative agencies; it eliminates the burden of going into the evidence in a case; it eliminates the situation where a nonjudicial agency retries a judicial matter; and it prevents the situation occurring where two people convicted under the same specific law are given different treatment because one indictment may contain a fuller or different description of the same act than the other indictment; and makes for uniform administration of law ( United States ex rel. Mylius v. Uhl, supra).
To determine what law has been violated, we may peruse the indictment, conviction and sentence ( United States ex rel. Teper V. Miller, supra). These documents reveal that respondent was convicted under that portion of 18 U.S.C.A. 398 which reads as follows, except for the matter in parenthesis which is a part of the statute, but not found in the indictment:
Any person who shall knowingly * * * aid or assist in obtaining transportation for, or in transporting, in interstate * * * commerce, * * * any woman or girl * * * with the intent and purpose to induce, entice, or compel such woman or girl (to become a prostitute or to give herself up to debauchery, or) to engage in any other immoral practice * * * shall be deemed guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $5,000, or by imprisonment of not more than five years, or by both such fine and imprisonment, * * *.
Section 398 of Title 18 U.S.C.A., 1926, sets forth several immoral acts-prostitution, debauchery, other immoral purposes or practices; several ways by which transportation of a female to engage in immoral acts can be effected — aiding in transporting, assisting in transporting, transporting, or causing to be transported; and several intents — to make a female a prostitute, to debauch, to commit an immoral act with her; to induce, entice or compel her, to be a prostitute, to engage in debauchery, or to commit an immoral act.
Count one sets forth nine ways in which the statute could have been violated. Three acts are charged in the conjunctive as to transportation; and three are charged in the conjunctive as to intent. As to transportation, respondent was charged with, (A) aiding in obtaining transportation, and (B) assisting in obtaining transportation, and (C) transporting in interstate commerce. As to intent, he was charged with (1) inducing, and (2) enticing, and (3) compelling the performance of the immoral act. Any one combination of the lettered acts with those preceded by a numeral would have been sufficient to establish a violation of section 398, i.e., (A) and (2), aiding in obtaining transportation with intent of enticing the performance of the immoral act would be an offense, etc. (cases cited in footnote 3).
Respondent is charged in the conjunctive with the commission of acts and the possession of intents set forth in the statute in the disjunctive. Such pleading is proper to avoid an acquittal by reason of any unforeseen lack of harmony between allegations and proof; and proof of the commission of any one of the acts and possession of any one of the intents is sufficient to obtain conviction ( Malaga v. United States, 57 F. (2d) 822 (C.A. 1); Blain v. United States, 22 F. (2d) 393, 395 (C.A. 8); United States v. Mellor, 71 F. Supp. 53 (D.C., Neb., 1946), affd. 160 F. (2d) 757 (C.A. 8), cert. denied 331 U.S. 848; see also United States v. Brothman, 93 F. Supp. 924 (S.D.N.Y., 1950); District of Columbia v. Hunt, 163 F. (2d) 833 (C.A.D.C., 1947); Frederick v. United States, 163 F. (2d) 536, 544 (C.A. 9, 1947), cert. denied 332 U.S. 775; Crain v. United States, 162 U.S. 625, 40 L. Ed. 1097).
Under such an indictment, the charges which are not supported by the evidence need not be submitted to the jury — only such issues as are supported by the evidence should be submitted ( Mellor v. United States, supra, 160 F. (2d) 757, 763 (C.A. 8)). We are precluded from going behind the record to determine what issues were presented to the jury ( United States ex rel. Teper v. Miller, supra).
Even though violation of section 398 could have been accomplished under more than one of the conditions specified in the act, only one violation results, and one cannot be convicted under section 398 on two counts charging the same transportation of the same woman in one count for the purpose of prostitution and in the other for the purpose of illicit intercourse. Conviction and punishment can be had on only one count ( Roark v. United States, 17 F. (2d) 570 (C.A. 8, 1927); Malaga v. United States, 57 F. (2d) 822 (C.A. 1, 1932); Caballero v. Hudspeth, 114 F. (2d) 545 (C.A. 10, 1940); Blain v. United States, 22 F. (2d) 393 (C.A. 8, 1927); Mellor v. United States, supra; United States v. Lewis, 110 F. (2d) 460, 462 (C.A. 7, 1940), cert. denied 310 U.S. 634. But see United States v. Fleenor, 177 F. (2d) 485 (C.A. 7, 1949), which does not discuss cases which are apparently contrary; and Malaga v. United States, supra, which uses language indicating there is more than one offense under section 398, but which terms a broad indictment similar to that herein as defining one offense. ( United States v. Lewis, supra, 462, and Mellor v. United States, supra, also characterize an indictment similar to that herein as defining one offense under section 398)).
There can be conviction for offenses arising out of the same act if there is a violation of sections 398 and 399 ( La Page v. United States, 146 F. (2d) 536 (C.A. 8, 1945)).
It is clear, therefore, that respondent was convicted of only one offense. What was that offense? It seems of little moment whether respondent was convicted for the act or acts of (1) aiding in obtaining transportation, or (2) assisting in obtaining transportation, or (3) in transporting the female. However, it might be of importance if he were convicted for planning the immoral act with the intent to compel, rather than induce or entice its commission. Whether such a conviction is more culpable in morals than one for inducing the performance of the act, we need not decide, for we conclude that the conviction involved must be considered to have been for the offense of transporting a female with the intent to induce or entice her to engage in the immoral practice represented by illicit intercourse. We reason as follows.
Legally, the count on which respondent was indicted creates only one offense. The offense could have been committed by any one of the nine acts set forth in the count. It was necessary to find only the existence of one act to obtain a conviction. The jury rendered a general verdict of guilty. We cannot go behind the record to determine what specific issues were presented to the jury and what specific act or acts they found to exist ( United States ex rel. Teper v. Miller, supra). Since the verdict was a general one and did not specify the act or acts on which it rested, it cannot be determined that respondent was not convicted for the acts which do not relate to compelling ( Stromberg v. California, 283 U.S. 359, 367-370, 75 L. Ed. 1117; Terminiello v. Chicago, 337 U.S. 115, 93 L. Ed. 1131). The finding that respondent was guilty of the "offenses" on count one, was of course surplusage, for there is only one offense. (Even if this finding could be given weight, it is meaningless for the purposes of this discussion, for it may have referred to any two or more of the six acts set forth which do not involve the intent "to compel.") Compulsion is not a material element of the crime (cases cited infra). The burden of establishing that conviction was for a particular act is upon the Government. On this record it cannot be found that the transportation was for "compelling" the woman to engage in unlawful sexual intercourse. Because of these facts, we are not justified in drawing the inference most unfavorable to the alien. We must in fact draw that most favorable to him. We must assume that he was convicted for transportation for the purpose of inducing or enticing the commission of the act.
Does the crime we have defined in this case inherently involve moral turpitude? If we find that situations not involving moral turpitude are punishable by the phrases with which we are concerned, then it becomes our duty to find that the crime defined does not involve moral turpitude ( Matter of S----, A-5702971, 2 IN Dec. 361).
While the primary purpose of the Mann Act was to deal with white slavery, the statute "enumerates the prohibited acts in broad language capable of application beyond that indicated by the legislative framers" ( Mortensen v. United States, 322 U.S. 369, 377, 88 L. Ed. 1331). There can, therefore, be conviction where the elements of commercial vice or pecuniary motive are absent ( Caminetti v. United States, 242 U.S. 470, 61 L. Ed. 442; United States v. Reginelli, 133 F. (2d) 595 (C.A. 3, 1943), cert. denied 318 U.S. 783). The offense is completed at the moment of transportation across state lines, the necessary intent or purpose being present ( Neff v. United States, 105 F. (2d) 688 (C.A. 8, 1939)). It is not necessary that the immoral act be completed or attempted ( United States v. Brand, 229 Fed. 847 (S.D.N.Y., 1916)). It is not necessary to establish that the female was seduced from virtue; that she was corrupted; or that she has been previously chaste. The statute is not an anti-seductive one and it only incidentally concerned the character for chastity or unchastity of those transported ( Pine v. United States, 135 F. (2d) 353 C.A. 5), cert. denied 320 U.S. 740, 88 L. Ed. 439; see United States v. Mellor, supra). Lack of consent is not an element. "Congress set out in the Mann Act to deal with cases which frequently, if not normally, involve consent and agreement on the part of the woman to the forbidden transportation" ( Gebardi v. United States, 287 U.S. 112, 72 L. Ed. 206; Cleveland v. United States, 329 U.S. 14, 91 L. Ed. 12; Miller v. United States, 95 F. (2d) 492 (C.A. 9); Morrow v. United States, 201 F. (2d) 363 (C.A. 5); United States v. Mellor, supra; United States v. Jamerson, 60 F. Supp. 281 (N.D. Iowa, 1944); Burgess v. United States, 294 Fed. 1002 (1924); United States v. Williams, 55 F. Supp. 375 (D.C. Minn., 1944)). A consideration of all the cases makes it quite clear that the crime defined by the language with which we are concerned can be transportation with the intent to induce the commission of a simple act of fornication-an "isolated noncommercial venture based on impulse and reciprocating passion" ( United States v. Jamerson, supra, pp. 281, 284; United States v. Fleenor, supra, p. 484; Elrod v. United States, 266 Fed. 55 (C.A. 6, 1920); Johnson v. United States, 215 Fed. 679 (C.A. 7, 1914); Sloan v. United States, 287 Fed. 91 (C.A. 8, 1923); Qualls v. United States, 149 F. (2d) 891 (C.A. 5, 1945); Neff v. United States, 105 F. (2d) 688 (C.A. 8, 1939); Carey v. United States, 265 Fed. 515 (C.A. 8, 1920)). The cases cited by the Service which would indicate that more than an act of fornication is required are not authoritative on the issue.
Not every violation of law involves moral turpitude. Moral turpitude is found in those acts or omissions which are so far "contrary to the moral law, as interpreted by the general moral sense of the community, that the offender is brought to public disgrace, is no longer generally respected, or is deprived of social recognition by good living persons" ( Matter of D----, 56075/273, 1 IN Dec. 190, 194). Ordinarily, moral turpitude is not found in conduct, which before it was made punishable as a crime, was not generally regarded as morally wrong, or as offensive to the moral sense of the community ( Coykendall v. Skrmetta, 22 F. (2d) 120 (C.A. 5, 1927)).
Does fornication involve moral turpitude? It is necessary to determine this because if fornication, a crime which may be punished under the language of the indictment with which we are concerned, does not involve moral turpitude, then it becomes our duty to rule that the conviction herein was not a crime inherently involving moral turpitude. Fornication is defined as illicit sexual intercourse (37 C.J.S. 117). Administratively, it has uniformly been held that fornication does not involve moral turpitude. The Solicitor of Labor, in a memorandum dated April 29, 1926, stated, "It can scarcely be maintained logically that simple fornication manifests on the part of its perpetrators such personal depravity or baseness as warrants the holding that it is a crime which involves moral turpitude." We have been unable to discover any departure from this view ( Matter of D----, supra; Matter of K----, supra; see Matter of O----, A-3889600, 2, I. N. Dec. 840).
Fornication — unlawful or illicit sexual intercourse — was not punishable at common law unless it was accompanied by public acts of indecency (37 C.J.S. 117; L.R.A., 1916, C. 653). Today, fornication is not a criminal offense in the absence of statutory change (37 C.J.S. 119). Some states have not made the statutory change and "occasional illicit intercourse" is not a crime in such states ( Warner v. State of Indiana, 202 Ind. 479, 175 N.E. 661, 74 A.L.R. 1357; United States ex rel. Huber v. Sibray, 178 Fed. 144 (C.C., Pa., 1910), reversed on other grounds 185 Fed. 401 (C.A. 3); Ex parte Rocha, 30 F. (2d) 823 (S.D. Tex., 1929)). In some states there have been enacted statutes which punish fornication only if it be committed by parties dwelling together in the same place in the manner of husband and wife for some period of time (37 C.J.S. 121; Warner v. State of Indiana, supra); Ex parte Rocha, supra). Elsewhere, it may be a crime only if committed between relatives so that it amounts to incest ( State v. Manley, 74 A. 231, 82 Vt. 556).
The Service request that we find fornication is a crime involving moral turpitude, is based upon the inability to find court cases holding that fornication does not involve moral turpitude.
No court in recent years has directly ruled upon whether fornication is a crime involving moral turpitude (the language in Pollard v. Lyon, 91 U.S. 225, 23 L. Ed. 308 (1875), is dicta and, as far as we know, has not been relied upon by any Federal court); however, the courts have, in many instances where fornication was involved, taken action which is consistent only with a finding that fornication did not involve moral turpitude.
This conclusion follows from the fact that one who has committed an act involving moral turpitude is ordinarily denied naturalization on the ground that good moral character has not been established ( In re Paoli, 49 F. Supp. 128; Petition of Nybo, 34 F. (2d) 161, affd. 42 F. (2d) 727 (C.A. 6); In re Bookschnis, 61 F. Supp. 751 (D.C. Oregon); Ralich v. United States, 185 F. (2d) 784 (C.A. 8)). Both in determining what constitutes good moral character and whether a crime involves moral turpitude, judgment is based upon the court's determination as to what is the generally accepted moral convention current at the time ( United States v. Francioso, 164 F. (2d) 163 (C.A. 2); In re Markiewicz, 90 F. Supp. 191 (W.D. Pa.); Repouille v. United States, 165 F. (2d) 152 (C.A 2)). Courts have found to be persons of good moral character, individuals who have committed illicit sexual acts despite the occurrence of these acts in the periods during which good moral character was required to be established. Thus, in Schmidt v. United States, 177 F. (2d) 450 (C.A. 2), the court held that one who engaged in sexual intercourse with single and unmarried women on occasions — conduct that was "concupiscent and promiscuous, but not adulterous," did not engage in conduct that would cause the "common conscience" of man to hold the acts deprived him of good moral character (see also Petition of R----, 56 F. Supp. 969 (D.C., Mass.); United States v. Rubia, 110 F. (2d) 92 (C.A. 5); Application of Murra, 178 F. (2d) 670 (C.A. 7); United States v. Manfredi, 168 F. (2d) 752 (C.A. 3); United States v. Palombella, 168 F. (2d) 903 (C.A. 3)). Furthermore, it is of some importance to note that under the Immigration and Nationality Act, Congress for the first time set up standards of good moral character. The commission of adultery was listed as requiring a finding that good moral character was lacking. No mention was made of fornication. As pointed out by counsel, it would be most incongruous for an act of illicit sexual intercourse on the part of an unmarried alien to be regarded as a crime involving moral turpitude and the basis for deportation when one who committed such an act could be granted the priceless gift of United States citizenship.
Respondent's petition for naturalization filed in 1944 was denied. While the reason for the denial could have been stated with greater clarity, it was not based on the ground that he had committed an immoral act or had been convicted under the Mann Act. It appears that the court, because the record reflected derogatory information concerning the respondent besides the conviction, gave to the fact that conviction existed, a weight, he would not otherwise have given it, and as a descretionary matter, denied the petition for naturalization ( Petition of Reginelli, 86 F. Supp. 599 (D.C.N.J., 1949)).
It thus appears that the mores of the community do not to this day require punishment of furtive illicit intercourse or private immoral indulgence of the individual. It would seem that moral turpitude should not be attached to the commission of an act which though immoral is not even regarded as a crime in some communities, and is one which the courts have held would not cause the "common conscience" to strip its perpetrator of good moral character.
We conclude therefore that under the language of the law which resulted in respondent's indictment and conviction, convictions for simple fornication are possible; that simple fornication does not involve moral turpitude; and that the language therefore does not inherently define a crime involving moral turpitude.
The Service argues that if it be concluded that fornication is a crime not involving moral turpitude, the instant conviction would still be one involving moral turpitude because respondent is charged with the practice of the illicit sexual act and the repetition of the act clothes it with the moral turpitude that a simple act of fornication does not have. No authority is cited for this view. The Service used the word "practice" interchangeably with "purpose" ( supra). The courts have done likewise ( Carey v. United States, 265 Fed. 515, 516 (C.A. 8); United States v. Lewis, 110 F. (2d) 460 (C.A. 7), cert. denied 310 U.S. 634, 84 L. Ed. 1404). No special significance need be given the word "practice." It requires no deeper meaning than that of "act" or "type of conduct." It does not necessarily imply a series of acts. To obtain conviction, proof that transportation was with the intent to engage in one act of fornication would have been sufficient. Furthermore, the act specified herein is "the practice of illicit sexual intercourse." If the act be one of simple fornication, repetition of the act with the same woman would not make the act more or less base." "One, two, or a half dozen acts of illicit intercourse would not of themselves constitute concubinage" ( United States v. Zes Cloya, 35 Fed. 493 (S.D. Ala., 1888)). The crime for which respondent was convicted does not involve moral turpitude. The Service has failed to establish that he has been convicted of two crimes involving moral turpitude. The charge must therefore fall.
The second charge is based on sections 241 (a) (12) and 212 (a) (12) of the Immigration and Nationality Act ( 8 U.S.C.A. 1251 (a) (12) and 1182 (a) (12)). This matter is discussed by the special inquiry officer on pages 8 and 9 of his order. Briefly, the charge is that after his entry, the respondent behaved in such a manner as to make him a member of a class excluded from entering the United States. This excludable class is defined in section 212 (a) (12). As attempt is made to apply the section to this case, it relates to a person who has "procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution or for any other immoral purpose." Is respondent one who attempted to procure a person for the purpose of prostitution or for any other immoral purpose? We find he is not such a person. To sustain the second charge, it is not necessary to establish that there has been a conviction for any violation of law. Respondent's conviction under the Mann Act was therefore merely incidental. However, the incident which forms the basis for the conviction is relied upon as establishing that the respondent procured or attempted to procure or import a prostitute or person for purposes of prostitution or for other immoral purposes. Here it becomes necessary to examine the facts.
The facts will be taken from the summary by the United States Circuit Court of Appeals for the Third Circuit in United States v. Reginelli, 133 F. (2d) 595 (C.C.A. 3, 1943), cert. denied 318 U.S. 783, which considered respondent's appeal from the Mann Act conviction. Respondent, a resident of New Jersey, left for a visit to Miami, Florida, having apprised the woman in the case, also a resident of New Jersey, of his contemplated trip. En route, he sent her a telegram in endearing terms and upon arriving in Miami, he again telegraphed her in the like vein and informed her of his arrival. The next day, he telegraphed her giving his hotel address, expressing his wish that she were there and stating that he would call her by telephone that evening, which he did. From then until February 2, 1942, he called her by telephone four additional times and talked with her on each occasion. One of the matters discussed was the prospect of her going to Miami while he was there. Acting in pursuance of an understanding arrived at with respondent by phone, the woman made the trip from New Jersey to Florida by plane upon a ticket which respondent himself had procured and paid for as he had told her he would do. Upon her arrival at the airport in Miami, she was met by respondent and with him rode in his automobile to his hotel in Miami Beach. She went to his room in the hotel and continued to live there during the whole of her ten-day sojourn in Miami. During that time she and respondent occupied the same bed in his room and had sexual relations.
These facts in the main were established by testimony of the woman. She also testified that the idea of her going to Florida to join the respondent originated with her and that respondent had frowned upon it and also he had objected to her going to his room when they arrived at the hotel in Miami. The jury "disbelieved or deemed inconsequential" this portion of the woman's testimony tending to exculpate respondent. The Circuit Court stated that in any event the portion of the woman's testimony freeing the defendant of an unlawful purpose was "at best but slight evidence of what was actually in the defendant's mind," so that even accepting the whole of her testimony at face, it was still for the jury to determine from all the proven facts what the defendant's purpose was in having the woman transported to Miami. This review of the facts clearly shows no more than that respondent engaged in extra marital relations with a willing woman over a ten-day period. Evidence adduced at the deportation hearing reveals no more. Does such conduct constitute an "immoral purpose" under section 212 (a) (12)? We believe not.
The words "other immoral purpose" are, in the immigration law, words of art ( Hansen v. Haff, 291 U.S. 559 (1934)). It has been settled that the words "other immoral purpose" in the phrase "for the purpose of prostitution or any other immoral purpose" mean an act of a like character with prostitution, and extra marital relations short of concubinage fall short of that description. In other words, the intent to have the illicit relations that were casual was not enough to bring a person into the category of those persons who were coming for an "immoral purpose." This was the meaning given the words "other immoral purpose" in the law prior to the Immigration and Nationality Act which is involved in the instant proceedings.
No change in this regard was made by the Immigration and Nationality Act. The Committee on the Judiciary whose investigation of the immigration system furnished the basis for the Immigration and Nationality Act of 1952, made the following recommendation concerning the excludability of immoral aliens:
It is the recommendation of the subcommittee, however, that the excludable class of immoral aliens should be enlarged to include persons who have practiced prostitution or who have procured or attempted to procure or import prostitutes or other persons for immoral purposes, as well as those who are so engaged at the time of entry as provided in the law at present. This excludable class should include persons who seek to enter the United States to engage in any illicit sexual act or other immoral act, whether that purpose be the sole, principal, or incidental purpose of their entry. This latter provision will overcome the decision of the Supreme Court in Hansen v. Haff. [Emphasis added.] (Report 1515, 81st Cong., 2d sess., p. 358.)
We have previously decided that the change recommended by the Committee was not adopted by Congress when the Immigration and Nationality Act was passed ( Matter of B----, T-2098246, 5, I. N. Dec. 185). The words "other immoral purpose" in the immigration law remain words of art and specify acts of a like character with prostitution, a requirement not satisfied by extra marital relations short of concubinage. Concubinage has not been established. Can it be said that respondent was one who procured a person for the purposes of prostitution or acts of a like character with prostitution? Our answer is in the negative. Prostitution is the practice of a female offering her body to indiscriminate intercourse with men (73 C.J.S. 224). Unless otherwise defined by statute, it is distinguished from sexual intercourse confined to one man ( People ex rel. Colletti v. Morehead, 50 N.Y.S. 2d 78; Commonwealth v. Kaniper, 3 Pa. Co. 276; Cleveland v. United States, 329 U.S. 14, 17, 91 L.Ed. 12; United States v. Zes Cloya, supra). We find no evidence in the record that the respondent procured the woman for the purpose of having her offer her body to indiscriminate intercourse with men. The second charge is clearly not sustained. Any other conclusion would rewrite the law to make deportable any alien who performed one act of fornication at any time after entry. No deportable ground is set forth in this record. The proceedings should be terminated.
Order: It is ordered that the decision of the special inquiry officer terminating proceedings be affirmed.