In DEPORTATION Proceedings

MATTER OF M

In DEPORTATION Proceedings

A-2902662

Decided by Board February 1, 1960

Crime involving moral turpitude—Conviction under 18 U.S.C. 88 (now 18 U.S.C.

371) of conspiracy to violate Internal Revenue Act involves moral turpitude

where object was to defraud U.S.—Fair hearing.

(1) Conviction under 18 U.S.C. 88 (now 18 U.S.C. 371) of conspiracy to violate the Internal Revenue laws involves moral turpitude when a composite

of all specifications in the indictment shows that the object of the conspiracy was to defraud the United States by avoiding taxes. (Matter of

G—, 7 I. & N. Dec. 114, distinguished.)

(2) That respondent was awaiting trial on a criminal indictment at the time

of the deportation proceeding did not preclude a fair hearing on the deportation charge relating to prior criminal convictions.

CHARGE :

Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)]—Af ter entry

convicted of two crimes involving moral turpitude, to wit: Conspiracy to violate the Internal Revenue laws, 18 U.S.C. 88 (2

offenses).

BEFORE THE BOARD

Discussion: The respondent appeals from an order entered by

the special inquiry officer on August 10, 1959, directing his deportation as an alien who after entry has been convicted of two crimes

involving moral turpitude, not arising out of a single scheme of

criminal misconduct, to wit, conspiracy to violate the Internal.

Revenue laws. section 88, title 18, U.S.C. (two offenses). Exceptions are directed to matters of procedure and to the legal conclusion that after entry respondent has been convicted on two

separate occasions of crimes involving moral turpitude.

The respondent, a native and citizen of Italy, male, married, 59

years of age, last entered the United States through the port of

New York for permanent residence on July 4, 1922. He was convicted on December 29, 1938, in the United States District Court

for the Northern District of Indiana (Hammond Division) and

sentenced to 180 days' imprisonment on a "finding of guilty by

(the) court" of the offense charged in a single-count indictment,

nog

to wit : "Conspiracy to violate Internal Revenue Act, 8teu.n,...

Title 18, U.S.C., '* * sentenced on one count of indictment"

(Exh. 11).

Respondent on the 10th day of June, 1941, was again convicted in

the same court (South Bend Division) on a "plea of guilty" of the

offense charged in a single-count indictment, to wit: "Violation of

Internal Revenue Code, section 88, Title 18, * * Internal Revenue

Conspiracy" (Exh. 12). He was sentenced to imprisonment for

2 years:

The respondent during the hearing stated his name for the record, admitted that he was served with an order to show cause and

notice of hearing and thereafter upon advice of counsel stood mute,

claiming privilege under the Fifth Amendment to the Constitution

of the United States.' The evidence relied upon by the special

inquiry officer to establish deportability is found in a sworn statement taken from the respondent on April 27, 1959 (Exh. 4), and

identified by both the interrogating immigration officer and the

transcriber; the court records of the conspiracy convictions in 1938

and 1941 of a person by the same name as the respondent (Exhs. 11

and 12), and testimony of 4 witnesses who identified 6 fingerprint

records (Exhs. 15-20) as thosc of a person by the same name as

respondent who was served with an order to show cause in this

proceeding, served sentences in Federal institutions which coincide

with those imposed by the United States District Court as shown in

the court records entered as exhibits 11 and 12 and was fingerprinted

as an alien on September 23, 1940 (Exh. 18).

There are 30 assignments of error. They charge error in matters

of procedure and law. They will be grouped for discussion under

the following headings:

(1) Abuse of the special inquiry officer's discretion;

(2) Proceedings conducted in an atmosphere of prejudice;

(3) Error in admitting the documentary evidence relied upon by the Government;

(4) The quantum of proof ; and

(5) The issue of deportability.

I. ABUSE OE DISCRETION

Error is assigned to the denial of two motions submitted by r ■

spondent's counsel during the course of the hearing. Counsel urg

that there existed no urgency in proceeding with the hearing at

the interests of the Government did not require dispatch. Conn:

also urges that the special inquiry officer erred in failing to tt

minate the hearing on the basis of his motion alleging that

1

Ites.pondent invoked the Fifth Amendment on some 86 occas1uii

hearing.

536

during

order to show cause fails to state a cause of action against the

respondent.

We find no abuse of discretion on the part of the special inquiry

officer in denying the motions. The order to show cause was served

upon the respondent on June 5, 1959. There were postponements

prior to the hearing of July 6, 1959. Counsel was retained by

the respondent on June 14, 1959. The fact that a criminal action

was pending against the respondent at the time of the hearing did

not, prejudice any rights guaranteed him under the Fifth and

Sixth Amendments to the Constitution of the United States. The

respondent, in defending a deportation charge based upon prior

criminal convictions, was in no danger of self-incrimination.

Counsel maintains that the special inquiry officer abused his discretion when he failed to grant a continuance and this action placed

the respondent in a position of waiving his right to apply for discretionary relief under the immigration laws. It is argued that

respondent was not in a, position to make the required showing of

good moral character during the deportation proceeding because

that, would amount to waiving his privilege against self-incrimination in the pending criminal case.

The respondent has the burden of establishing his eligibility for

discretionary relief (8 CFR 242.16(e)). An alien seeking a favorable exercise, of discretion cannot, limit, the area of the Attorney

General's inquiry by refusing to answer pertinent questions on the

ground that his answers may incriminate him. A full disclosure of

all pertinent information is inherent to an act of grace by the

sovereign. We find no abuse of discretion on the part of the special

inquiry officer in refusing to grant a continuance to permit the

termination of the criminal case then pending against the respondent,. Cf. Matter of Y , 7 I. & N. Dec. 697 Mar. 26,

1958). We agree with the special inquiry officer that a continuation

was not warranted under the circumstances.

Counsel urges that the special inquiry officer erred in denying

respondent's motion to terminate the proceedings on the ground

that the order to show cause did not specify offenses which are

crimes involving moral turpitude. Section 242(b) of the Immigration and Nationality Act (8 U.S.C. 1252(b)) provides, inter alia,

"the, alien shall be given notice, reasonable under all the circumstances, of the nature of the charges against him and of the time

and place at which the proceedings will be held."

The order to show cause served upon the respondent, informed

him that he was "subject to be taken into custody and deported

pursuant to the following provision of 'law:

Section 241(a) (4) of the Immigration and Nationality Act, in that you at

any time after entry have been convicted of two crimes involving moral fur■

5f 9:71R-R1-ftR

537

pitude not arising out of a single scheme of criminal misconduct, to wit, conspiracy to violate Internal Revenue Act, section 88, Title 18, U.S.C., two

offenses."

The order to show cause fully informed the respondent that his

deportation was sought because of convictions on December 29, 1938,

and June 10, 1941, for conspiracy to violate the Internal Revenue

laws (allegations 4 and 5 of Exh. 1). The respondent was also

informed that he was a native of Italy, who last entered the United

States through the port. of New York on July 4, 1922, and that he

would be accorded a hearing in the New Post Office Building at

Chicago, Illinois, on June 15, 1959, at 8 :30 A.M. (Exh. 1).

Counsel concedes that in an immigration proceeding "we are not

held to the strictness that is required in indictment (criminal)

proceedings " It has been held that an indictment charging conspiracy to unlawfully engage in the liquor business and to conceal

whiskey with intent to defraud the Government of the tax thereon

is not deficient because it did not allege the particular laws the

defendants conspired to violate (Seh,efam v. United States, 84

F.2d 513 (C.C.A. 5, 1930) ).

We are of the opinion that respondent was given reasonable

notice of the nature of the charge against him (section 242(b),

supra). The factual statements relative to his 2 convictions of conspiracy to violate the Internal Revenue laws were of sufficient clarity

to enable him to procure witnesses and make a proper defense

thereto. Since the doctrine of res adjudieata has no application to

an administrative proceeding, the Immigration Service is not held

to the strict requirement which prevails in criminal proceedings, to

wit, that the indictment charge the essential facts so specifically

that the judgment rendered will be a complete defense to a second

prosecution for the same offense. Cf. Matter of K—, 3 I. & N.

Dec. 575, 577; Pearson v. Williams, 202 U.S. 281, 284 (May 14,

1906).

II. PROCEEDINGS CONDUCTED IN AN ATMOSPHERE OF PREJUDICE

Counsel urges that the special inquiry officer was prejudiced

against the respondent by reason of the voluminous and inflamma-

tory publicity resulting from his appearance before an investigating committee of the United States Senate during June of 1959.

It is also alleged that the special inquiry officer allowed the examining officer to examine the respondent in an inflammatory, redundant and illegal manner to the further stimulation of adverse

publicity and in derogation of the respondent's right to a hearing

in a dispassionate and judicial atmosphere.

We find no merit to the charge that the special inquiry officer

and the examining officer conducted the proceeding in an atmosphere

538

of obvious prejudice against the respondent. The fact that respondent was awaiting trial on an indictment charging bribery of

an Indiana State officer at the time of this proceeding does not

preclude a fair hearing to the respondent in an immigration proceeding. We find no evidence of record that the special inquiry

officer and the examining officer were influenced by this factor. Cf.

Matter of 41—, 5 I. & N. Dee. 261, 262 (ITA., June 1, 1953).

III. ERROR IN ADMITTING THE DOCUMENTARY EVIDENCE

Counsel maintains that the special inquiry officer erred in admitting the documentary evidence relied upon by the Government

to sustain the charge that respondent is deportable as a twice. convicted alien. She urges that since respondent elected to stand mute

during the hearing the documentary evidence violated his privilege

against self-incrimination. She also urges that the fingerprint charts

(Exhs. 15 through 20) were not properly qualified and that one

of them (Exh. 17) had been obtained in violation of the respondent's rights under the Fourth and Fifth Amendments to the Constitution.

It is settled law that deportation proceedings are civil in nature

and not criminal (Carlson v. Landon, 342 U.S. 524 (1952)). Administrative tribunals are not bound by the rules of evidence present in judicial proceedings except those perpetuated in governing

regulations. Schaeps v. Carmichael, 177 F.2d 391, 395 (C.C.A. 9,

1949) ; United, States en rel. Inya.stato v. O'Rourke, 211 F.2d 609

(C.C.A. 8, 1954), and cases cited.

The protection afforded the respondent by the Fourth and Fifth

Amendments has not been violated by the introduction of the documentary evidence relied upon by the Government. There is no

evidence before us that any of the documents were obtained by an

"unreasonable search and seizure" in violation of the Fourth Amendment. The privilege against self-incrimination guaranteed by the

Fifth Amendment does not extend to the use of fingerprint records

when they serve as a basis for identification (United States v. Kelly,

55 F.2d 67 (C.C.A. 2, 1932) ; Bolt v. United States, 218 U.S. 245,

252). We find on this record that the hearing was conducted in

accordance with the prescribed regulations (8 CFR 242) and that

the introduction of the documentary evidence here under consideration does not constitute a violation of the protection guaranteed

the respondent by the Fourth and Fifth Amendments.

IV. THE QUANTUM OF PROOF

We next turn to the issue of whether as a matter of law the

respondent is deportable on the charge that after entry he has been

convicted of 2 crimes involving moral turpitude not arising out of

a single scheme of criminal misconduct. Counsel maintains that

539

the Government has failed in its proof against respondent in that

there is insufficient evidence to identify him as a co-conspirator in

either of the 2 criminal offenses which serve as a basis for the finding of deportability.

We have carefully studied the evidence in its entirety and are

satisfied that the testimony of the Government witnesses adequately establishes that the respondent in this proceeding is identical with the person whose fingerprint records were introduced in

evidence as exhibits 15 through 20. The documentary evidence,

together with the identifying testimony of the witnesses, is in our

judgment sufficient to support the special inquiry officer's conclusion that the respondent, as a co-conspirator, was convicted of the

2 offenses described in the judgments of conviction entered as exhibits 11 and 12. The conclusion of the special inquiry officer is

supported by rulings of the Supreme Court to the effect that where

there is a duty to speak an inference may be drawn from the refusal of an alien to te=tify on his own behalf in a deportation proceeding and such an inference is evidence. United States ex rel.

Bilolcumsky v. Tod, 263 TJ.S. 149, 153 (1923) ; Hywn, v. Landon,

219 F.2d 404, 409 (C.C.A. 9, 1955), aff'd 350 U.S. 816; cf. Matter

of V

, 7 I. & N. Dec. 308 (15.I.A., 1956).

V. THE ISSUE OF DEPORTABFLITY

A preponderance of substantial and probative evidence establishes

that the respondent subsequent to entry has been convicted on 2

occasions for conspiracies to violate the Internal Revenue laws of

the United States (Exhs. 11 and 12). There is no dispute relative

to the finding that the offenses did not arise out of a single scheme

of criminal misconduct. Counsel, however, does except to the special inquiry officer's conclusion that the respondent has been convicted of 2 conspiracies which involve moral turpitude.

Counsel contends that as a matter of law the respondent has not

been convicted of 2 separate offenses which involve moral turpitude,

because the records of conviction charge conspiracy to violate the

Internal Revenue laws by the commission of several described substantive offenses and since some of the substantive. offenses charged

in the indictments do not involve moral turpitude, the lowest grade

of the substantive offense necessary to sustain the conspiracy conviction is the one which must be imputed to the conviction record

as a whole. Counsel also urges error on the part of the special

inquiry officer in relying on the Supreme Court's decision in the case

of Jordan v. DeGeorge, 341 U.S. 223 (1951), as controlling in the

instant case. Counsel maintains that the decision in the DeGeorge

case (supra), is not the law of the case in this proceeding, even if it

is proven that the respondent was one of the co-conspirators con540

victed with DeGeorge as shown by the record of conviction entered

as exhibit 12.

We agree with counsel that the Supreme Court's decision with

respect to the alien DeGeorge does not establish the law of the case

in the instant proceeding. However, it is not an error of law on

the part of the special inquiry officer to state in his decision that

the conclusion reached by the Supreme Court in the DeGeorge case

(supra), to wit, "that the crime of conspiracy to defraud the United

States is a crime involving moral turpitude" is applicable in the

instant case. (See p. 7 of the special inquiry officer's opinion.)

As a matter of law, a conspiracy to commit an offense involves

moral turpitude only when the offense which is the object of the

conspiracy involves moral turpitude (r 7-7-, ited States ex rel. Berlandi

v. Reimer, 30 F. Supp. 767 (S.D.N.Y., 1939); Mercer v. Lence,

96 F.2d 122 (C.C.A. 10, 1938), cert. den. 305 U.S. 611). The

respondent was charged in the 1938 single-count indictment substantially as follows: That from about October 7, 1937, until the

fall of 1938, the defendants conspired together and with other persons unknown to violate the Internal Revenue laws:

(1) By unlawfully, knowlingly and willfully defrauding the United States

of tax on distilled spirits. 2

(2) By carrying on the business of a retail and wholesale liquor dealer in

such periods without having paid the special tax required by law. 3

(3) By removing and aiding in the removal of distilled spirits on which the

United States Internal Revenue tax had not been paid to a place not a distillery warehouse or a bonded warehouse as required by law. 4

(4) By concealing and aiding in the concealment of spirits so removed

( 4, .supra).

(5) By possessing 120 gallons of alcohol and other quantities of distilled

spirits which did not hear tax stamps. 6

(6) By carrying on a business of a distillery without the required statutory

bond .6

(7) By making mash for distillation or for production of spirits in an unauthorized distillery."

The grand jury enumerated 9 overt acts committed by the defendants in furtherance of the conspiracy. The respondent pleaded

guilty and was sentenced to 180 days' imprisonment.

=Sections 2833(a) and 2800(f) of the 1989 Internal Re ■ enue Code define

this specification, the pertinent portions of which are set forth in Appendix A.

3 Section 3253 of the 1939 Internal Revenue Code defines this specification,

the pertinent parts of which are set forth in Appendix A.

4 Sections 2913 and 3321(a) of the 1939 Internal Revenue Code define this

specification (see Appendix A).

5 Sections 3320(a) and 2803(a) of the 1939 Internal Revenue Code define

this specification (see Appendix A).

This offense is described in toe penalty provision of section 2833(a) of the

1939 Internal Revenue Code (see Appendix A).

'Section 2809(a) of the 1939 Internal Revenue Code defines this specification

(see Appendix A).

541

The December 1939 single-count indictment (Exh. 12) charged

that from July 15, 1939, to the time of the indictment the respondent conspired with others to violate the Internal Revenue laws of

the United States:

(1) By willfully defrauding fhe -United States of tax on distilled spirits

(2, supra).

(2) By carrying on the business of a retail and wholesale liquor dealer in

distilled spirits without having paid the special tax required by law ( 3, supra).

(3) By removing and aiding in the removal of distilled spirits on which

the Internal Revenue tax had not been paid to a place- other than a distillery or bonded wherehouse as required by law (4, supra).

(4) By concealing and aiding in the concealment of such removed spirits

( 4 , supra).

(5) By carrying on the business of a distiller without the required statutor: bond ( 6, supra).

(6) By setting up an unregistered sti11. 3

(7) By making mash for distillation or for the production of distilled spirits ou premises not duly authorized as a distillery ( 7 , s'aPta).

(8) By possessing and transporting distilled spirits (4,675 gallons of alcohol and other quantities of distilled spirits), which were not stamped to denote the quantity contained therein or evidence of payment of Internal Revenue taxes ( 5, supra).

overt acts committed by the deThe grand jury enumerated

fendants in furtherance of this conspiracy. The respondent was convicted and sentenced to imprisonment for 2 years.

The respondent was convicted under section 88 of Title 13, United

States Code, for two conspiracies to violate the Internal Revenue

laws of the United. States. Section SS of Title 18, U.S.C., 9 creates

2 crimes: (1) conspiracy to commit an offense against the United

States, and (2) conspiracy to defraud the United States in any

manner or for any purpose. 10

The Internal Revenue., statutes have broken down the various steps

and phases of a continuous illicit distilling and distributing business and made each of them separate offenses. Some of the offenses

defined by the revenue statutes involve moral turpitude and some

do not (to, ,supra). Both indictments in the instant case charge the

respondent with conspiracies "to violate the Internal Revenue laws

of the United States by the commission of various offenses against

the United States of America" (Exits. 11 and 12).

The particular revenue statutes the respondent conspired to violate are not designated but the specifications of both indictments

when considered in their entirety describe a large scale operation

of distilling, possessing, concealing, transporting distilled spirits on

Section 2810 of the 1939 Internal Revenue Code defines this specification

(see Appendix A).

9 Section 88 of Title 18, U.S.C., is set forth in Appendix B.

'0111-alter of G—, 7 1. & N. Dec. 114 (B.I.A., Feb. 9, 1956).

542

which the United States 1:evenue tax had not been paid and carrying on the bUsiness of retail and wholesale. liquor dealer without

having paid the required revenue tax. The specifications also

charge the respondent with conspiring to "unlawfully, knowingly

and willfully defraud the United States of tax on distilled spirits." 11

The issue narrows to a determination of whether the conspiracies

here under consideration have as their objective the commission of

several offenses against the United States or do they by their very

nature have as their objective "to defraud the United States in any

manner or for any purpose." It is well settled that in an indictment for conspiring to commit several offenses (where the conspiracy is the gist of the crime charged) it is not necessary to allege

with technical precision all the elements essential to the commission

of the offenses which are the object of the conspiracy.' 2 Furthermore, the object of the conspiracy need not be stated with the detail

required in an indictment for committing the substantive offense

( 12, supra). Certainty as to a common intent, sufficient to identify

the object of the conspiracy, is all that is necessary (127 supra).

The separate offenses which comprise the conspiracies here wider

consideration are primarily revenue statutes and were enacted by

Congress to prevent one who comes within their terms from defrauding the Government out of the tax levied upon the product

which they manufacture and distribute.13

The character and effect of a conspiracy is not to be judged by

dismembering it and viewing its separate parts, but only by looking

at it as a whole. 14 This is precisely what the Supreme Court did

in the case of Jordan v. DeGearge,15 because in that case referring

to the December 1939 indictment the court said, "Less than a year

later, he (DeGeorge) returned to his former activities and in December 1939, he was indicted again with eight other defendants for

violating the same federal statutes (1937 indictment) * * lie

(DeGeorge) was charged with conspiring to 'unlawfully, knowingly

and willfully defraud the United States of tax on distilled spirits'."

This language is significant because the Supreme Court was referring to the same indictment that we have under consideration (Exh.

12). The language used by the Supreme Court also means that the

"same federal statutes" (substantive offenses) are involved in the

conspiracy described in exhibit 11.

See Appendix A for the several statutes defining the substantive offenses

charged.

12 Wong Tel T. United States, 273 U.S. 77, 81 (1927) ; Thornton v. United

States, 271 U.S. 414, 423 (1926) ; Williamson v. United States, 207 U.S. 425,

441 (1005).

13 Fortson, v. United States, 20 F.26 127, 129 (C.C.A. 8. 1927) ; Gant v. Bottling Co., 29 S.E. 2d 488. 490 (Sup. Ct. So. Car., 1944).

1 United States T. Patten, 220 U.S. 525, 544 (1913).

35 341 U.S. 223, 224, 225 (1951).

543

The Supreme Court noted that DeGeorge was a large-scale violator engaged in a sizeable business. They referred to the fact that

the December 1939 indictment alone charged DeGeorge with processing 4,675 gallons of alcohol and an undetermined quantity of distilled spirits. The court said, "At the rate of $2.25 a gallon then

in effect, the tax on the alcohol alone would have been over $10,000"

(see note 5 at 341 U.S. 225).

The respondent herein is charged with possessing a total of

4,795 gallons of alcohol and an undetermined amount of distilled

spirits in the 2 indictments returned against him in 1933 and 1039

(Exhs. 11 and 12). Under the circumstances we consider the respondent herein a large-scale operator engaged in a sizeable business of distilling, transporting, concealing and selling alcohol and

distilled spirits. The tax on the total amount of alcohol at the rate

of $2.25 per gallon amounts to approximately $10,789.

The purpose of section 88 of Title 18, U.S.C. (now section 371 of

Title 18), (a, supra) is to protect the Government of the United

States from imposition through conspiracy to cheat and defraud

in respect of its rights, privileges, operations and functions, as well

as in respect to property such as taxes levied under the revenue

laws." The Supreme Court said in the DeGeorge case (supra),

"Fraud is the touchstone by which, th,le case should be judged."

We can find no distinguishing features in the case before us which

would permit a. different judgment on our part. There is no doubt

in our mind that the character and effect of the several offenses set

forth in the indictments here under ennsider9tinn charge conspiracies to defraud the United States Government. by violation of its

revenue laws. 17

Counsel urges that in the DeGeorge case (supra) the Supreme

Court had before it a stipulation that the alien was convicted of

conspiracies which included the element of an intent to evade the

payment of taxes and that since there was no comparable stipulation in the instant case, then DeGeorge is not controlling insofar

as the respondent is concerned. There is no evidence of record to

support counsel's allegation with regard to the stipulated premise

in the DeGeorge case. It is crystal clear, however, from a reading

of the Supreme Court's decision in the DeGeorge case (supra) that

the Court fully considered the substantive offenses which were the

object, of the conspiracies. Referring to DeGeorge's 1937 indict"Cf. United States v. Keitel, 211 U.S. 370, 303 (1908) ; FTeald v. United

States, 175 F.2d 878, 880 (C.C.A. 10, 1949) ; United States v. Weinberg, 129

F. Supp. 514, 523, 521 1-) C Pa , 1955), a it'd 226 F.2d 161. 167 (C.C.A. 3,

1955).

n It was said in the case of Fields v. United States, 221 Fed. 242, 245

(C.C.A. 4, 1915), cert. den. 238 U.S. 640, that "fraud upon the Government by

violation of its revenue laws is a crime involving moral turpitude."

511

meat, the Court. said, "*

* Respondent was indicated under 18

U.S.C. 85 for conspiring with seven other defendants to violate 12

sections of the Inf Hun] Revenue Code. The indictment specifically

charged him (DeG Gorge) with possessing whistiey and alcohol with

intent to sell it, in fraud of law and evade. the tax thereon'. He was

further accused of removing and concealing liquor 'with intent to

defraud the United States of the tax thereon'." Referring to the

December 1939 indictment the Court said, "Ho was charged with

conspiring to 'unlawfully, knowingly, and willfully defraud the

United States of tax on distilled spirits' " (supra 15 at p. 224). The

argument that an intent to defraud was stipulated in the DeGeorge

case finds no support, in the Supreme Court's decision.

It may be argued that. our decision in the instant, case. is not

supported by the conclusion reached in Matter of G

I. & N.

Dec. 114 (B.I.A., Feb. 9, 1956). We find the two cases distinguishable. The indictment, in the G

case charged in 5 counts, 4 separate violations of the Internal Revenue laws. The fifth count

charged a conspiracy to violate the same substantive offenses set

forth in the first 4 counts. G

was convicted on all five counts.

Moral turpitude was not, an element of the, offenses set, forth in

the first 4 counts. It, was clear from a reading of the fifth count

that G— was indicted for conspiring with others "to commit

offenses against the United States." We reasoned that if the substantive offenses set, forth in the first 4 counts did not involve moral

turpitude the fact that the alien conspired with others to commit.

the same offenses would not, per se, render them turpitudinous.

Here we are confronted with an entirely different situation. The

respondent was not - indicted for violations of substantive offenses

defined by the Internal Revenue laws. The two indictments with

which we are concerned represent two conspiracies, charged in single

counts and committed on two separate occasions. The several specifications set, out. in both indictments do not. in each .instance employ the technical language of the statutes involved. They do not

in every instance fully specify each and every element of the substantive offense described in the statutes 18 concerned. However, a

composite of all the specifications permit of only one construction,

namely, that each indictment charges a conspiracy to defraud the

United States Government by avoiding taxes levied under the Internal Revenue laws. We had in mind the precise situation presented by the instant case when we said in Matter of G , supra,

that "it is hard to conceive of a situation where two or more individuals conspire with each other to 'fail to pay taxes imposed by

law on said distilled spirits' and not have an intent to evade said

taxes."

18 See Appendix A for the statutes involved.

545

There is no application for discretionary relief before us. The

findings of fact and conclusion of law entered by the special inquiry officer on August 10, 1959, are hereby affirmed. An appropriate order will be entered.

Order : It is directed that the appeal be and the same is hereby

dismissed.

APPENDIX "A"

Section 2833(a), Internal Revenue Code of 1939—Distilling without

giving bond.

Any person who shall carry on the business of a distiller without

having given bond as required by law, or who shall engage in or

carry on the business of a distiller with intent to defraud the

United States of the tax on the spirits distilled by him, or any

part thereof, shall, for every such offense, be fined not less than

$100 nor more than $5,000 and imprisoned for not less than thirty

days nor more than two years. * * *

Section 2806(f), Internal Revenue Code of 1939—Tax fraud by

Distiller.

Whenever any person engaged in carrying on the business of a

distiller defrauds or attempts to defraud the United States of the

tax on the spirits distilled by him, or of any part thereof, he

* * *. [The penalty provides for forfeiture a fine of not less than

$500 nor more than $5.000 and imprisonment for not less than six

months nor more than three years.]

Section, 3253, Internal Revenue Code of 1.939—Penalties and f

feiture<3 for nonpayment of special tax.

Any person who shall carry on the business of * * * wholesale

liquor dealer, retail liquor dealer, wholesale dealer in malt liquors,

retail dealer in malt liquors, or manufacture of stills, and will

fully fails to pay the special tax as required by law, shall, for every

such offense, be fined not less than $100 nor more than $5,000 and

be imprisoned for not less than thirty days nor more than two

*

years. *

Section 3321(a), Internal Revenue Code of 1939—Removal or concealment with intent to defraud the revenue.

Every person who removes, deposits, or conceals, or is concerned

in removing, depositing, or concealing any goods or commodities

for or in respect whereof any tax is or shall be imposed, with intent

to defraud the United States of such tax or any part thereof, shall

be liable to a fine of not more than $5,000 or be imprisoned for

not more than three years, or both.

546

Section 2913, internal Revenue Code of 1039—Penalty for unlawful

removal or concealment of spirits.

Whenever any person removes, or aids or abets in the removal of,

any distilled spirits on which the tax has riot been paid, to a

place other than the Internal Revenue bonded warehouse provided

he law, or conceals or aids in the concealment of any spirits so

removed, or removes, or aids or abets in the removal of, any distilled spirits from any such warehouse authorized by law, in any

manner other than is provided by law, or conceals or aids in the

concealment of any spirits so removed, he shall be liable to a

penalty of double the tax imposed on such distilled spirits so removed or concealed, and shall be fined not less than WO nor more

than $5,000, and imprisoned not less than three months nor more

than three years.

Section 3320(a), Internal Revenue Code of 1939—Possession with

intent to sell in fraud of law or to evade taw.

Every person who shall have in his custody or possession any

goods, wares, merchandise, articles, or objects on which taxes are

imposed by law, for the purpose of selling the same in fraud of the

Internal Revnue laws, or with design to avoid payment of the taxes

imposed thereon, shall be liable to a penalty of $500 or not less

than double the amount of taxes fraudulently attempted to be evaded.

Section 2803(a), Internal Revenue Code of 1039—Stamps for containers of distilled spirits.

No person shall transport, possess, buy, sell, or transfer any distilled spirits, unless the immediate container thereof has affixed

thereto a stamp denoting the quantity of distilled spirits contained

therein and evidencing payment of all Internal Revenue taxes imposed on such spirits. * *

Section 2809(a), Internal Revenue Code of 1939—Definitions.

Every person who produces distilled spirits, or who brews or

makes mash, wort, or wash, fit for distillation or for the production

of spirits, or who, by any process of evaporation, separates alcoholic spirit from any fermented substance, or who, making or keeping mash, wort, or wash, has also in his possession or use a still,

shall be regarded as a distiller.

Section 2810, Internal Revenue Code of 1939—Registry of stills.

Every person having in his possession or custody, or under his

control, any still or distilling apparatus set up, shall register the

same with the collector of the district in which it is, by subscribing and filing with him duplicate statements, in writing, setting

forth the particular place where such still or distilling apparatus

is set up, the kind of still and its cubic contents, the owner thereof,

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his place of residence, and the purpose for which said still or

distilling apparatus has been or is intended to be used; one of

which statements shall be retained and preserved by the collector,

and the other transmitted by him to the Commissioner. Stills and

distilling apparatus shall be registered immediately upon their being set up.

*

*

And every person having in his possession or custody, or under

his control, any still or distilling apparatus set. up which is not

so registered, shall pay a penally of $500, and shall be fined not

less than $100, nor more than $1,000, and imprisoned for not less

than one month, nor more than two years. * *

APPENDIX "B"

Section 88, Title 18, U.S.C. (now section 371 of Title 18)—Conspiracy to commit offense against United States.

If two or more persons conspire either to commit any offense

against the United States, or to defraud the United States in any

manner or for any purpose, and one or more of such parties do any

act to effect the object of the cor. ,piracy, each of the parties to such

conspiracy shall be fined not more than $10,000, or imprisoned not

more than two years, or both.

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