A-6522936 A-6681956
Decided by the Board February 4, 1953
Crimes involving moral turpitude, Foreign: England: Concealing uncustomed goods.
(1) Concealing uncustomed goods with intent to defraud His Majesty of duties thereon in violation of Section 186 of the Customs Consolidation Act of 1876 (Statutes of England) is to be treated as a "crime" within the meaning of the Immigration Act of 1917 when it is shown that criminal proceedings were instituted against the wrongdoer and notwithstanding that the English officials could have dealt with the matter solely by means of civil sanctions.
(2) This offense involves moral turpitude, intent to defraud being an ingredient.
EXCLUDED:
Act of 1917 — Convicted of crime involving moral turpitude, to wit: Conceal-uncustomed goods with intent to defraud His Majesty of duties due thereon.
BEFORE THE BOARD
Discussion: This case is before us by certification. The aliens are natives and last citizens of Poland who arrived in the United States at the port of New York, N.Y. on December 19, 1950, and were excluded on the ground stated above. They were in possession of valid reentry permits and sought admission as returning residents. They had been admitted to the United States for permanent residence in 1947 and had remained in the United States with the exception of short trips abroad. It was on the occasion of a return from their last visit abroad that they were excluded.
The sole issue presented by this record is whether the appellant's conviction for the offense set forth above was conviction of a "crime." It is counsel's contention that the conviction was merely an imposition of a civil penalty and not a conviction of a crime.
The aliens were convicted on December 6, 1950, in the Court of Summary jurisdiction in County Borough of Southampton, England, on two counts. One count, charging violation of section 186 of the Customs Consolidation Act of 1876, as amended by section 15 of the Finance Act of 1935 and section 12 of the Finance Act of 1943; and the other charging willful violation of an Import Control Order in violation of the aforementioned section 186.
We will not discuss the violation under the Import Control Order. Under the count charging violation of only section 186, the aliens were charged with having "knowingly concealed uncustomed goods, namely, 4,500 pairs of artificial silk stockings and 460 pairs of artificial socks, within intent to defraud His Majesty of the duties due thereon * * *." Each alien was fined £500 or 3 months' imprisonment.
Extracts of English law which follow are Halsbury's Statutes of England, Second Edition (1950) volume 21; page references are to this book.
Section 186 of the Customs Consolidation Act of 1876 (39 and 40 Vict. c. 36, § 186) provides in pertinent part as follows:
Every person who * * * shall knowingly harbour, keep, or conceal, * * * any prohibited, restricted, or uncustomed goods, * * * or shall be in any way knowingly concerned in carrying, removing, depositing, concealing, or in any manner dealing with any such goods with intent to defraud Her Majesty of any duties due thereon, or to evade any prohibition or restriction of or application to such goods; * * * shall for each such offense forfeit either treble the value of the goods, including the duty payable thereon, or 100 pounds, at the election of the Commissioners of Customs; and the offender may either be detained or proceeded against by summons (pp. 327-328).
The section was amended by section 15 of the Finance Act of 1935 (25 26 Geo. V c. 24) as follows:
Where a person is convicted of an offense under section 186 of the Customs Consolidation Act, 1876 (which relates to evasions of duties of customs and of the laws and restrictions of the customs relating to the importation, unshipping, landing and delivery of goods) the court may, if it thinks fit, in lieu of ordering him to pay a penalty, order him to be imprisoned for a term not exceeding 2 years (p. 1157).
The section was further amended by section 12 of the Finance Act of 1943 (6 7 Geo. VI c. 28) which provides in pertinent part as follows:
(1) The power of a court under the following enactments, namely —
( a) * * *.
( b) section 15 of the Finance Act, 1935 (which relates to the punishment for evasions of duties of customs and of the laws and restrictions of the customs relating to the exportation, importation, unshipping, landing and delivery of goods);
( c) * * * of ordering an offender to be imprisoned for a term not exceeding 2 years in lieu of ordering him to pay a penalty, shall be extended so as to include a power of ordering the offender to be imprisoned as aforesaid in addition to ordering him to pay the penalty.
(2) * * *.
(3) Where a court of summary jurisdiction —
( a) in pursuance of either of the two preceding subsections orders a person to be imprisoned for a term in addition to ordering him to pay a penalty for the same offense; and
( b) further (whether at the same time or subsequently) orders him to be imprisoned for a term in respect of the nonpayment of the sum adjudged to be paid by the conviction for that offense, or in respect of the default of a sufficient distress to satisfy that sum; the aggregate of the terms for which he is so ordered to be imprisoned shall not exceed 2 years.
(4) Subject to the provisions of the last preceding subsection, where the sum adjudged to be paid by the conviction of a court of summary jurisdiction under or by virtue of any statute relating to His Majesty's revenue under the control of the Commissioners exceeds fifty pounds, the maximum period of imprisonment that may be imposed in respect to the nonpayment of that sum or in respect of the default of a sufficient distress to satisfy that sum shall, instead of being 6 months in all cases as provided by section 53 of the Summary Jurisdiction Act, 1879, be fixed in accordance with the following scale * * * (pp. 1281-1282).
The procedures for obtaining the sanctions provided for by section 186 are prescribed by section 218, the terms of which follow:
All duties, penalties, and forfeitures incurred under or imposed by the Customs Acts, and the liability to forfeiture of any goods seized under the authority thereof, may be sued for prosecuted determined and recovered by action information or other appropriate proceeding in the High Court of Justice in England, or by action of debt, information, or other appropriate proceeding in the superior courts of common law at Dublin or Edinburgh, or in the Royal Courts of the Islands of Guernsey, Jersey, Alderney, Sark, or Man, in the name of the Attorney General for England or Ireland respectively, or of the Lord Advocate of Scotland, or of some officer of Cutoms or Excise, or by information in the name of some officer of Customs or Excise, before one or more justice or justices in the United Kingdom, the Isle of Man, or the Channel Islands: * * * (pp. 338-339).
Whether a crime involves moral turpitude is judged by the standards of the United States (39 Op.Atty.Gen. 96, 97; 215, 220). In the United States conviction of a crime in which an ingredient is the intent to defraud the Government of revenue, is conviction of a crime involving moral turpitude ( Jordan v. DeGeorge, 341 U.S. 223).
Section 3 of the Immigration Act of 1917 (8 U.S.C.A. 136(e)) provides in part as follows:
The following classes of aliens shall be excluded from admission into the United States; * * * Persons who have been convicted of * * * a felony or other crime or misdemeanor involving moral turpitude.
If the aliens have been convicted of a "felony or other crime or misdemeanor," it is clear that they would be excludable.
Aliens' witness, an expert on English law, testified that the offense in question was not a "crime" under English law. It is his opinion that the conviction is merely in the nature of a sanction for the recovery of a penalty. This witness testified that violators of the section in question can be proceeded against in two manners, that is, (1) an action in a high court or, (2) an action before a Justice. He produced a case which stated that where the Attorney General had filed an action in a high court, it was a civil case ( King v. Hausman, (1909) 3 CR.APP.R. 3, 26 T.L.R. 3 (1909)). He further testified that since it is clearly established that the action by the Attorney General is civil in nature, all proceedings under section 186 must be civil, for the State by electing an alternative remedy cannot change what is civil in nature into something that is criminal. In support of this proposition, the case of Attorney General v. Bradlaugh, (1885) 14 Q.B.D. 867, is cited. The expert witness testified as to the effect of section 186 only as it existed prior to its amendments in 1935 and 1943 (p. 13-A). He stated that an offense under section 186 is not one which can be the basis of an indictment and it therefore followed that the section was not concerned with a crime.
We shall concern ourselves only with the effect of the conviction under section 186 alone charging an intent to defraud. As we have seen (sec. 218, supra) proceedings for the penalties under section 186 may be instituted by action of debt in certain courts other than before a Justice or Justices or by action of debt, information, or other appropriate proceedings or by information before a Justice or Justices. As to proceedings in courts other than before a Justice or Justices, it appears settled that the proceeding is a civil one ( Rex v. Justices of the Appeals Committee of the County of London Quarter Sessions (1946), 1 K.B. 176, 184; King v. Hausman ( supra); The State v. Judge Fawsitt (1945), I.R. 183, 192).
Proceedings before a Justice or Justices are criminal. This is so despite the fact that proceedings before a high court may be civil. The English Court which decided this question ( Rex v. Justices etc. ( supra)) quotes the following extract from a decision of the Supreme Court of Southern Ireland ( The State v. Judge Fawsitt, ( supra)) which also ruled that such proceedings were criminal:
If the form of proceedings is the test of criminal or civil proceedings, I personally see no absurdity in one proceeding being civil and the other being criminal. The information in the suit of the Attorney General in the High Court is civil because it is a relic of mediaeval procedure, while the proceedings before the District Justice have all the marks of criminal procedure and are in no way distinguishable from criminal proceedings for which the punishment is a penalty with imprisonment in default of payment.
Contra. The Court of Appeals of Northern Ireland. Rex ( Sherry) v. County Court Judge and Chairman of Quarter Sessions for County Fermanagh (1935), N.I. 211. It is to be noted that this decision was decided January 23, 1935 which was prior to the amendment of sec. 186 by sec. 15 of the Finance Act of July 10, 1935, which permitted imprisonment in lieu of requiring the payment of a penalty and prior to the Finance Act of 1943 which authorized imprisonment in addition to the imposition of a fine. So, Megaw, J., who wrote a concurring opinion is found to say, "The case before us is not one in which imprisonment is the primary sanction. The imprisonment that may follow from a conviction is only a method of inflicting the payment of the statutory penalty, and can only be inflicted til the amount of the statutory penalty is paid" (pp. 259-260). The English Court in Rex v. Justices etc. ( supra) refused to follow the Sherry case.
The testimony of the expert witness to the contrary, we note that proceedings under section 186 are in some cases by indictment. In each case which follows, the offender was indicted for a violation of section 186: Rex v. Morris, 34 CR.APP.R. 210 (1950) and Rex v. Cohen, 34 CR.APP.R. 239 (1950). In the Cohen case, the court stated "nowadays [courts] not infrequently have to deal with indictments for offenses under this section" [sec. 186] (p. 243).
Proceedings before a Justice or Justices are conducted in a manner undistinguishable from an ordinary criminal prosecution ( The State v. Judge Fawsitt, ( supra) p. 193; Rex v. Justices of the Appeals Committee of the County of London Quarter Sessions, ( supra) p. 184). If the sum of evidence in a case under section 186 leaves the jury in doubt, the case is not proved ( Rex v. Cohen ( supra)). Appeals from convictions lie to the Criminal Courts of Appeal of England. We conclude that the nature of the proceedings which resulted in the conviction in the instant case was criminal.
As to the substance of the offense, we believe that more than a civil liability is defined; that in fact, a crime is involved. Section 186 was considered by the House of Lords in 1941 in the case of Barnard v. Gorman ((1941), 3 A.E.L.R. 45). This case involved a ship's steward who was detained by customs officials and police who had reasonable ground for belief that he had committed a violation of section 186. He was charged with knowingly harbouring uncustomed goods with intent to evade the payment of duty contrary to section 186. The magistrate hearing his case, found that doubt as to guilt existed. He gave the steward the benefit of the doubt and dismissed the charge. The steward then commenced proceedings to recover damages for malicious prosecution and false imprisonment and the question arose whether section 186 authorized the detention without a warrant of a person suspected on reasonable grounds of offending against the section. The House of Lords unanimously held that the section authorizes the arrest of a suspected offender on reasonable grounds of suspicion without a warrant. In discussion on this section, there are expressions from which it is apparent that the section was considered as one dealing with crime. Viscount Simon L.C., in his opinion stated "when the question arises whether a statute which authorizes arrest for a crime should be construed as authorizing arrest on reasonable suspicion, that question has to be answered by examining the contents of the particular statute concerned rather than by reference to any supposed general rule of construction" (pp. 50-51). His opinion reveals that the statute in question did authorize arrest on reasonable suspicion. Lord Wright stated in his opinion that "the offense in question here is a misdemeanor" (p. 53). He was, of course, referring to the offense of knowingly harbouring certain uncustomed goods with intent to defraud the Crown of duties due on them under section 186.
Rex v. Morris ( supra) involved an indictment on two counts. One count was based on section 186 for being knowingly concerned in a fraudulent attempt in evasion of customs duties (p. 217). The other for conspiracy to violate section 186. Prosecution did not ask for trial on the count based on section 186, feeling the court could deal satisfactorily with the offender on the conspiracy charge (p. 212). The Court held the conspiracy to commit the offense under section 186 was a common law misdemeanor and in a subsequent case ( Rex v. Pearce, Court of Criminal Appeals, October 13, 1952, Vol. 2 All Eng.Repts. 718 (1952)) characterized the count which had not been tried in Rex v. Morris, supra, as "the misdemeanor of smuggling." Intent to defraud is an ingredient of the offense under section 186. The English Courts have held that mens rea must be established before there can be a conviction under section 186 ( Frailey v. Charlton, 1919 1 K.B. 147, 153; Rex v. Franks, 1950, 2 A.E.L.R. 1172). We have seen from the Finance Acts of 1935 and 1943 that a sentence to imprisonment is not intended merely to enforce payment of a fine because no fine need be imposed. A direct sentence of imprisonment may be passed as punishment. The penalty is a severe one; it may result in imprisonment for 2 years. A person suspected on reasonable grounds of having committed an offense under this section may be arrested and imprisoned without a warrant. We conclude therefore that the nature of the offense is criminal.
The English officials could have treated the matter as a civil one. They chose to institute criminal proceedings. We believe the record establishes that the aliens were convicted in England in criminal proceedings that were for the punishment of crime. The crime involves moral turpitude. They are required to establish that they are not inadmissible to the United States (sec. 23, Immigration Act of 1924, 8 U.S.C.A. 221). It is clear that they have failed to meet that burden. The appeal will be dismissed.
The concept that the legislature may impose both a civil and criminal sanction in respect to the same act or omission is not unknown in the United States ( United States ex rel. Marcus v. Hess, 317 U.S. 537; Helvering v. Mitchell, 303 U.S. 391). The fact that Congress provided for a civil action in a law creating a crime did not prevent the State from proceeding criminally. ( United States v. Steveson, 215 U.S. 190.).
Order: It is ordered that each appeal be and the same is hereby dismissed.