In Re the Disciplinary Proceedings Against Seijas

318 P.2d 961, 52 Wash. 2d 1, 1957 Wash. LEXIS 287

• Court: Washington Supreme Court
• Decided: December 12, 1957
• Docket: C. D. 1615
• Status: Published

Opinions

Mallery,

The respondent attorney was convicted of filing fraudulent income tax returns under the provisions of 26 U. S. C., §145 (b). He was sentenced to five years’ imprisonment in the United States penitentiary at McNeil Island, Washington.

The board of governors, after a study of the record, concluded that the conviction involved .moral turpitude warranting disbarment by summary procedure. Two members of the board of governors dissented.'. .'Mr, Robert O. Beres-ford did so upon the ground that

“ . . . our decision could be attacked on the grounds of our failure to afford the respondent attorney a trial on the issue of whether or not his acts which resulted in his conviction did in fact involve moral turpitude.”

Mr. Beresford relied upon In re Hallinan, 43 Cal. (2d) 243, 272 P. (2d) 768, in which the court said: “Although every conviction for violating section 145,. subdivision (b), may not involve moral turpitude, some convictions may.”

This is a case of first instance in Washington. The question raised by Mr. Beresford has been most difficult of solution because of the unsettled state of the Federal cases upon the question. At least three different proposals for the disposition of this proceeding have hád adherents in this court at one time or another during the pendency of this proceeding.

On November 13, 1957, there was received in the law library in Olympia the opinion in Tseung Chu v. Cornell, 247 F. (2d) 929, which reviews all the Federal cases and which we deem to be controlling upon the question of moral turpitude in connection with income tax offenses. The following excerpts will suffice to show its ruling:

“In Chanan Din Khan v. Barber, D. C. N. D. Cal., 1957, 147 F. Supp. 771, 775, the same matter was in issue. There the District Court found that a violation of § 145 (b) is a crime involving moral turpitude.

“ ‘ * * * the Courts have, with apparent unanimity, held that in order for a conviction under § 145 (b) to stand, the government is required to prove that the evading taxpayer had a specific intent to evade taxation amounting to an intent to defraud the United States. (Emphasis by the Court.) Fraud is so inextricably woven into the term wil-fully, as it is employed in § 145(b), that it is clearly an ingredient of the offense proscribed by that section. Only by creating unwarranted semantic distinctions could a contrary conclusion be reached.’ (Emphasis added.)

“. . . In discussing the general language of United States ex rel. Robinson v. Day [51 F. (2d) 1022], the Court said:

“ ‘This language means that neither the immigration officials nor the court reviewing their decision may go outside the record of conviction to determine whether in the particular instance the alien’s conduct was immoral. And by the record of conviction we mean the charge (indictment), plea, verdict, and sentence. The evidence upon which the verdict was rendered may not be considered, nor may the guilt of the defendant be contradicted. So construed, there is no inconsistency between that opinion and this; and such is plainly the correct construction, because it is the specific criminal charge of which the alien is found guilty and for which he is sentenced that conditions his deportation, provided it involves moral turpitude. * * * ’ (Emphasis added.) . . .

“In re Hallinan, supra [43 Cal. (2d) 243, 272 P. (2d) 768], also quotes United States v. Carrollo, supra [30 F. Supp. 3], for the principle that whether or not a crime involves moral turpitude does not depend upon unnecessary adjectives added to the indictment by a ‘zealous and over careful prosecutor.’ We agree with that principle, but we do not concede, in view of the rule laid down by us in the Bloch case [Bloch v. United States, 221 F. (2d) 786], and the language of the Supreme Court of the De George case [ Jordan v. De George, 341 U. S. 223, 71 S. Ct. 703, 704, 95 L. Ed. 886], that the language added to the indictment to which appellant here pleaded can be classified as ‘unnecessary.’

“We follow the rule laid down in the De George case supra, and Bloch v. United States, 1955, supra, that an intent to defraud the government is a prerequisite to conviction under section 145 (b) and hence, a conviction thereof where such fraud is charged in the indictment, is conviction of a crime involving moral turpitude.”

The charging language of the indictment in the instant proceeding is “. . . did willfully and knowingly attempt to defeat and evade a large part of the income tax due ... by filing ... a false and fraudulent income tax-return.” (Italics ours.)

This language is so similar to the language of the indictments in Tseung Chu v. Cornell, supra, that it is precisely in point.

The record of conviction herein, consisting of the indictment/ plea, verdict, and sentence, is conclusive upon the question of moral turpitude under Tseung Chu v. Cornell, supra.

Accordingly, we adopt the. recommendation of the ma--jority of the board of governors that the respondent be disbarred.

It is so ordered.

Hill, C. J., Donworth, Weaver, Ott', and Foster, JJ., concur.