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United States v. Jordan

July 10, 1950


Author: Swaim

Before MAJOR, Chief Judge, LINDLEY and SWAIM, Circuit Judges.

SWAIM, Circuit Judge.

This appeal is from an order of the District Court dismissing the application of Sam De George, relator, for a writ of habeas corpus.

The appellant, Sam De George, in 1921, when he was 17 years of age, entered this country from Italy. In 1928 he married an American citizen, and to this marriage two children were born.One died and the other, now 18 years of age, is a student in an American university. The relator has resided in Harvey, Illinois, for many years and has no police record in that town. A real estate man of Harvey, Illinois, wrote a letter for relator to use in his deportation hearing in which he said that he had known the relator for twenty years, during which time the relator had always been a good citizen "with the exception that during the prohibition days he became mixed up with bad company and violated the liquor laws."

In 1938 on his plea of guilty the relator was sentenced for a period of 1 year and 1 day on a charge of violating § 88 of Title 18 U.S.C., 18 U.S.C.A. § 88 [now § 371]. The indictment charged a conspiracy to violate § 3321 of Title 26 U.S.C., 26 U.S.C.A. § 3321, in that the relator conspired to remove and conceal distilled spirits with intent to defraud the United States of tax thereon. On this first sentence he served 9 months and 18 days in the penitentiary at Atlanta, Georgia. The appellant was again convicted of the same offense in 1941, and was then sentenced for a period of two years to the federal prison at Fort Leavenworth, Kansas, where he served 19 months and 18 days. It is significant to note that in his description of these two convictions the relator described them to the presiding inspector conducting the hearing for deportation as being convictions for conspiracy to violate the liquor laws.

Proceedings for his deportation were commenced in 1941, when the relator was a prisoner in the penitentiary at Fort Leavenworth. The final hearing on this proceeding was held in Chicago September 14, 1943, and the warrant for his arrest and deportation was issued January 11, 1946, pursuant to the provisions of the Immigration Act of 1917, 8 U.S.C.A. § 155(a). This section provides for the deportation of any alien who, subsequent to May 1, 1917, is sentenced more than once to imprisonment for one year or more because of conviction in this country of any crime involving moral turpitude, committed at any time after his entry.

By his petition for a writ of habeas corpus the relator sought to be discharged from the custody of the District Director of the United States Immigration and Naturalization Service under the writ of deportation, on the ground that the crimes for which he was sentenced did not involve moral turpitude. This contention presents the only question involved in this appeal.

When Congress enacted this statute providing for deportation of aliens it is clear that the intent was not to provide that all aliens who were twice sentenced for more than one year for crime were to be deported. It was necessary that such sentences be for crimes involving moral turpitude. The only possible purpose Congress could have had in inserting the provision "involving moral turpitude" in this statute was to classify or describe those crimes the commission of which by an alien, if resulting in convictions and sentences, would furnish grounds for deportation.

We find many definitions of moral turpitude. Webster's New International Dictionary, Second Edition, defines turpitude as meaning: "Foul, base. Inherent baseness or vileness of principle, words or actions; depravity." The same dictionary defines moral turpitude as being: "The quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory mala prohibita." In 2 Bouvier's Law Dictionary, Rawle's Third Revision, p. 2247, moral turpitude is defined as, "an act of baseness, vileness or depravity in the private and social duties which a man owes to this fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man." This Court in Ng Sui Wing v. United States, 7 Cir., 46 F.2d 755, at page 756, used this latter definition in defining the term. From all of these definitions we are given the same idea - that crimes described as involving moral turpitude are only those crimes which shock the public conscience, such as crimes of violence, or crimes revealing inherent baseness, vileness or depravity. We find evidence in the legislative history of the Act that Congress intended this provision of the Act to apply only to such infamous crimes. In the hearing before the committee of Immigration and Naturalization of the House, held on March 11, 1916, Congressman Sabath said he believed "in giving a man a chance who, due to conditions, commits some offense which really was not the crime of a hardened criminal." Police Commissioner Woods of New York City suggested to the committee, "I would make provision to get rid of an alien in this country who comes here and commits felonies and burglaries, holds you up on the streets, and commits crimes against our daughters, because we do not want that kind of alien here, and they have no right to be here."

In Volume II of Administrative Decisions under Immigration and Nationality Laws of the United States, p. 141, we find an administrative interpretation by the Department then having the administration of the Act. In an opinion on a deportation proceeding decided by the Board June 26, 1944, and approved by the Attorney General July 12, 1944, the following statement from an opinion by the Solicitor of the Department of Labor was quoted with approval: "A crime involving moral turpitude may be either a felony or misdemeanor, existing at common law or created by statute, and is an act or omission which is malum in se and not merely malum prohibitum; which is actuated by malice or committed with knowledge and intention and not done innocently or with inadvertence or reflection; which is 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; but which is not the outcome merely of natural passion, of animal spirits, of infirmity of temper, or weakness of character, of mistaken principles, unaccompanied by a vicious motive or a corrupt mind."

From the above definitions, legislative history and administrative interpretation, it seems perfectly obvious that Congress in describing crimes which would furnish a ground for the deportation of aliens had something more in mind than the mere violation of a statutory law. The limitation, "involving moral turpitude", must be taken as meaning that Congress intended to include in the classification only such infamous crimes as would grievously offend the moral code of mankind, such crimes as would have this effect even in the absence of any prohibitive statute.

As support for its contention that the crimes here in question involved moral turpitude, the government relies principally on three decisions: Guarneri v. Kessler, 5 Cir., 93 F.2d 580; U.S. ex rel. Berlandi v. Reimer, 2 Cir., 113 F.2d 429; and Maita v. Haff, 9 Cir., 116 F.2d 337.

In Guarneri v. Kessler, supra, the Court found that a conspiracy to smuggle alcohol, intended for beverage purposes, into the United States with intent to defraud the United States in violation of the Tariff Act of 1930, constituted a crime involving moral turpitude. The Court there defined moral turpitude very broadly as being, 98 F.2d at page 581, "'Anything done contrary to justice, honesty, principle or good morals.'" That definition would cover the violation of any criminal statute. The Court there pointed out, however, that: "Smuggling is a crime at common law. Keck v. United States, 172 U.S. 434, 19 S. Ct. 254, 43 L. Ed. 505. Fraud is an ingredient of the offense and the statutes providing for its punishment are not merely prohibitory. We have no hesitancy in holding that to clandestinely introduce goods into the United States with intent to defraud the revenue is dishonest and fraudulent and involves moral turpitude."

In pointing out that smuggling was a crime at common law the Court was apparently bolstering its holding that the crime there being considered involved moral turpitude. We think the common concept of those who engage in smuggling as a business is that they are dangerous criminals, criminals who would use any force or ...

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