BATTEN

11 I. & N. Dec. 271

• Court: Board of Immigration Appeals
• Decided: July 1, 1965
• Docket: 1494
• Status: Published

Opinion

'Interim Decision #1494

MATTER OP BATTEN

In Deportation Proceedings A-2997296

Decided by Board August 17, 1966 Conviction of conspiracy to embesrld and misapply fonds, monies and securities in violation of the Federal Reserve Act (18 U.S.C. 658) is conviction of a crime involving moral turpitude. -

CHARGE: Order: Act of 1552—Section 241(a) (4) 13 U.S.C. 1231(a) (4)1—Convicted after entry of two crimes involving moral tarPityle, to wit: larceny of property and conspiracy in vio- lation of the Federal Reserve Act of embezzling and misapplying funds, monies and securities.

The respondent, a native and citizen of Canada, appeals from an order entered by the special inquiry officer on April 20, 1965 direct- ing his deportation on the charge stated in the order to show cause. Exceptions have been taken to the finding that the respondent's conviction for conspiracy to violate Title 18, U.S.C., section 656, is a crime involving mural turpitude. The respondent, a married male -alien, 51 years of age last entered the United States through , the port of Detroit, Michigan on or about October 24; 1933. - He concedes that he was convicted in. the Recorder's Court, Detroit, Michigan on. July 13, 1935, for the of- fense of larceny of property. It is conceded that this offense in- volves moral turpitude. The respondent was convicted in the United States District Court, Detroit, Michigan, on April 23, 1964, for the offense of con- spiracy in violation of Federal Reserve Act, 1.8 U.S.C. 656, for embezzling and misapplying funds, monies and securities. The issue before us is whether the offense defined by 18 U.S.C. 656 1 is a crime involving moral turpitude. , 'Tice pertinent portion of Tine 18, U.S.C., 656 reads as follows: Whoever, being an officer, director, agent or employee of, or connected in any capacity with any Federal Reserve bank, member bank, national bank or

271 Interim Decision #1494 The statute punishes embezzling, abstracting, purloining and - willfully misap plying any funds or monks. The indictment (Ex. 3) Charges the 'respondent as a co-conspirator with one, Charles Graul (an .officer of the bank) "did unlawfully, wilfully and know- ingly and feloniously conspire, combine, confederate and agree to- gether, and each with the other, and diverse other persons pres- ently unknown ... to embezzle, abstract, purloin and wilfully mis- apply and cause to embezzle, abstract and wilfully misapply monies, funds, securities and credits, which were entrusted to the . custody, care and control of the National. Bank of Wyandotte, 2517 ' Fort Highway, Wyandotte, Michigan, it Member of the Federal Reserve System, and to the custody and care 'of Charles Graul, a Vice-President and Branch Manager of the said National Bank of Wyandotte, in violation of section 656, Title 18, U.S.C." It has been held that conspiracy to commit an offense does not involve moral turpitude unless the substantive offense, the object of the conspiracy itself, involves moral turpitude. Matter of G , —

7 Dee. 114, citing Mercer v. Leswe, 96 F.2d 122; cer. den. 805 13.S..611. The question to be resolved is whether the substantive offenses of embezzlement, abstraction, purloining and wilfully mis- applying money belonging to the National Bank of Wyandotte in- volve moral turpitude. While the statute may include offenses which do and other which do not involve moral turpitude, we of course _must look to the' record of conviction to determine. which portion of the statute was violated. Matter of C—, b I.. & N. Dec. 65; Matter of R , 6 I. & N. Dec. 444. —

There is no question but that embezzling or "purloiiring involves moral turpitude. The issue presented id whether the offenses of •abstracting or wilfully misapplying funds involves moral turpitride. Counsel maintains that since there is no reference to an intent to defraud in the statute and since there is no such charge in the in the respondent must be deemed to have plead guilty to the least' imaginable offense defined by the statute, namely, "A wil- ful misapplication of iunds with intent to injure." Counsel urges that this offense does not involve moral turpitude because there is insuredbank, or a receiver of a national bank, or any agent or employee of the receiver, or a Federal Reserve Agent, or an agent or employee of a Federal Reserve Agent or of the Board of Governors of the Federal Reserve System, embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank or any moneys, funds, assets or securities intrusted to the custody or care of any .such bank or to the custody or care of any such agent, cancer, director, employee or receiver, sball be fined net more than 55,000 or imprisoned not more than five years, or both.

272 Interim Decision #1494 no allegation that there was a misapplication of funds with an in- tent to defraud. It has been consistently held that an intent to injure or defraud the bank is an element of the offense defined by 18 U.S,O. 806 de- spite the fact that such an intent is omitted from the statute. Golden v. United States, 318 F.2d. 357 (0.A. 1, 1963) ; Seals v. United States 221 F.2d 243; Ramirez v. United States, 318 F.2d 155 (CA. 9, key 1963) ; Logsdon v. United States, 253 F.2d 12; Williamson v. United States, 332 Fad 123; United States v. Natot, 146 F2d 197, 198 (CA. 2). The court in the Rs.mirez's CASE! (p. 158), (supra) said that "the words 'did wilfully misapply' consti- tute a sufficient charge of a criminal intent to defraud." According to the indictment the respondent and others entered into a con- spiracy with an officer of the National Bank of Wyandotte, Mich- igan who in return for a fixed fee would approve loans,in the name of a third party submitted for discount by an organization controlled by the respondent. The indictment charges embezzlement, purloin- ing and .misapplieation of the funds of the bank as a result of this conspiracy.. Under the circumstances we find that the offense of which the respondent was convicted. involves moral turpitude. The appeal -will be dismissed. • ORDER: It is directed that )the appeal be and the same is here- by dismissed. •