A-7366161.
A-7394626.
A-7394627.
A-7394628, and A-7394629
Decided by Board July 6, 1950
Crime involving moral turpitude — Attempted bribery — Violation of section 333 of the German Criminal Code.
Where visa expired, but "no visa" charge not sustained.
The offense of attempted bribery in violation of Sec. 333 of the German Criminal Code involves moral turpitude (conviction in February 1948). The exclusion ground of "not in possession of an unexpired consular immigration visa" need not be sustained, where a replacement visa is readily obtainable. (Repeated in unreported Matter of W----, A-7394110, B.I.A. December 1, 1950.)
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Conviction of crime involving moral turpitude prior to entry, to wit: Attempted bribery (adult male appellant).
Act of 1924 — Not preference quota as specified in visas (adult female and minor appellants).
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of the Acting Assistant Commissioner dated April 14, 1950, which found appellant M---- V---- inadmissible as one convicted of a crime involving moral turpitude and found the other appellants inadmissible as persons not in possession of the necessary unexpired immigration visas.
Appellant, M---- V----, 44 years old and his wife, appellant L---- V----, 42 years old, are both natives and citizens of Czechoslovakia, who have been living in Germany since November 1945. They now seek admission for permanent residence under the provisions of the Displaced Persons Act (act of June 25, 1948, P.L. 774, 80th Cong.) for themselves and their 3 children. Their daughters, R---- (14 years old) and B---- (11 years old), are natives and citizens of Czechoslovakia, while their son, F---- (4 years old), is a native of Germany and citizen of Czechoslovakia. On August 1, 1949, appellants received Czech quota visas from the American Consulate at Schweinfurt, which were valid for 4 months; passport requirements were waived by the Secretary of State. Appellant, M----, has a preference quota visa under section 6 (c), act of June 25, 1948, and his family were given visas as the spouse and dependent children of an eligible displaced person. The family are destined to appellant M----'s brother-in-law, J---- W----, in Philadelphia, Pa.
Appellant, M---- was charged with violation of section 333 of the German Criminal Code, he pleaded not guilty, and was convicted in February 1948 by a Summary Military Government Court at Augsburg of attempted bribery (the bribe was refused). Appellant was given a 3 months' suspended sentence.
Whoever offers, promises or furnishes to any official or member of the armed forces a gift or other benefit in order to induce him to do an act constituting a violation of the duty imposed by his office or service, shall be punished for bribery by imprisonment; the loss of civic rights may also be imposed.
Counsel contends that, since the crime of bribery is an offer of reward or an "attempt" to influence a public official in the performance of his duty, the offense is an attempt to commit an attempt or an attempt once removed and is not a crime involving moral turpitude in the United States. It is not fully settled in this country that an attempt to bribe or a rejected bribe is never included within the framework of the crime of bribery, for some courts have defined the crime of bribery in a sufficiently broad manner so that it also comprehends the attempt to bribe. However, in the United States under variously worded statutes (both similar and dissimilar to the German one before us), a rejected offer of a reward made to a peace officer is called an "attempted bribe" or an "attempt to bribe," on the theory that an express or implied acceptance of the promise or gift is essential to perfect the crime of bribery. People v. Peters, 265 Ill. 122, 106 N.E., 513 (1914); Barefield v. State, 14 Ala. 603 (1848); 2 Bishop Criminal Law (9th Ed.), sec. 88. In the interest of uniformity, the unaccepted offer is generally treated as an attempt, rather than as the substantive crime.
"Bribery is the voluntary giving or receiving of anything of value in corrupt payment for an official act done or to be done." 2 Bishop Criminal Law (9th Ed), sec. 85; State v. Ellis, 33 N.J.L. 102 (1868).
At common law, an offer of a bribe to an official was punishable as an attempted bribe, because it tended to corrupt the morals of the community. People v. Bennett, 182 App. Div. 871, 170 N.Y. Supp. 718 (1918); Rudolph v. State, 128 Wis. 222, 107 N.W. 466 (1906); People v. Peters, 265 Ill. 122, 106 N.E. 513 (1914); United States v. Gloria, 4 Philippine Rep. 341 (1905); Hutchinson v. State, 36 Tex. 293 (1871); Commonwealth v. Warren, 20 N.W.C. (Pa.) 378 (1887); State v. Potts, 78 Iowa 656, 43 N.W. 534 (1889). See also, Commonwealth v. Hunt, 216 Mass. 126, 103 N.E. 399 (1913); State v. Miller, 182 Mo. 370, 81 S.W. 867 (1904); Sabbatino v. United States, 298 Fed. 409, cert. den. 266 U.S. 602 (C.C.A. 2, 1924); State v. Tummons, 225 Mo. App. 429, 37 S.W. 2d 499 (1931).
According to other courts, it is the offering of the bribe that constitutes the substantive crime of bribery, although such an offer has been held separately indictable as an attempt to bribe. Walsh v. People, 65 Ill. 58 (1872); State v. Ellis, 33 N.J.L. 102 (1868); Coleman v. State, 132 Fla. 845, 182 So. 627 (1938); State v. Vallee, 136 Me. 432, 12 A. 2d 421 (1940); State v. McDonald, 106 Ind. 233, 6 N.E. 607 (1886). See also, United States v. Worrall, 2 U.S. (2 Dall.) 384 (1798); 18 U.S.C. 201-223, in which an offer is included in the definition of bribery, with officials, who may be reached by a tender of reward, enumerated and enlarged.
But, regardless of caption, such an act is punishable in some manner at the time the offer or promise of reward is made, whether the offer is then accepted or rejected. State v. Sullivan, 110 Mo. App. 75, 84 S.W. 105 (1904); People v. Ah Fook, 62 Calif. 493 (1881); Dishon v. Smith, 10 Iowa 212 (1859).
Counsel also contends that the offense now under consideration is not a crime involving moral turpitude in the United States. However, appellant was convicted in Germany and this portion of the record is of primary concern to us at this time. The mere absence of similar wrongdoing in the United States does not prove that the offense does not in fact involve moral turpitude. Conversely, numerous acts, which are morally wrong have not been denounced as crimes. Statutes are being added daily to the body of our criminal law denominating acts, which were legally blameless before, as crimes involving moral turpitude.
Bankruptcy Act, 18 U.S.C. 151-155; Bankruptcy Code (Kondursordnung) of Germany, secs. (KO) 239-244, enacted February 10, 1877. Revenue Act (Income Tax Evasion), 26 U.S.C. 145.
In the instant case, we have a record of conviction for a crime, defined in section 333 of the German Criminal Code, which has always been considered malum in se in both Anglo-American and Continental law and, therefore, involves moral turpitude. Since appellant has been convicted for the commission of a crime involving moral turpitude, he is inadmissible under section 3, act of 1917, Matter of W----, 5036088 (May 8, 1947); U.S. ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2, 1931).
An attempt to influence a person in authority has always been considered wrong, as an act against justice and governing authority. Matter of R----, 1 IN Dec. 118 (56071/174, June 13, 1941); Ng Sui Wing v. United States, 46 F. (2d) 755 (C.C.A. 7, 1931; Matter of E----, 2 IN Dec. 328 (A-5923798, Atty. Gen., July 11, 1945); 37 Op. Atty. Gen. 293, 294 (1933); 39 Op. Atty. Gen. 215, 220, 221 (1938). II Catholic Encyclopedia 778; 4 Encyclopedia Brittanica 110; 3 New International Encyclopedia 730, 4 Encyclopedia Americana 488.
The Acting Assistant Commissioner held that appellant L---- and her three children were inadmissible because their visas have expired. These visas were valid at the time the administrative inquiry was initiated by the Immigration Service in Germany.
Appellants L---- V---- and the three children must of course have valid immigration visas when embarking for this country; replacement visas may be obtained from the United States consul. Therefore, we will not now exclude the appellants because the immigration visas issued to them have expired. For the above reasons, the appeal of the appellant M---- V---- is dismissed. The appeals of appellants L----, R----, B----, and F---- V---- are sustained, provided they obtain replacement visas.
Order: It is hereby ordered that the appeal of M---- V---- be dismissed and that the appeals of L---- V----, R---- V----, B---- V----, and F---- V---- be sustained provided they have valid immigration visas at the time of embarking for the United States.