Ablett v. Brownell

• Decision Date: 10 January 1957
• Docket Number: No. 13243.,13243.
• Citation: 240 F.2d 625
• Parties: Frank Ernest ABLETT, Appellant, v. Herbert BROWNELL, Jr., Attorney General of the United States, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

240 F.2d 625 (1957)

Frank Ernest ABLETT, Appellant, v. Herbert BROWNELL, Jr., Attorney General of the United States, Appellee.

No. 13243.

United States Court of Appeals District of Columbia Circuit.

Argued June 12, 1956.

Decided January 10, 1957.

Mr. David Carliner, with whom Mr. Jack Wasserman, Washington, D. C., was on the brief, for appellant.

Mr. John W. Kern, III, Asst. U. S. Atty., with whom Mr. Oliver Gasch, U. S. Atty., Mr. Lewis Carroll and Mrs. Kitty Blair Frank, Asst. U. S. Attys., were on the brief, for appellee. Messrs. Leo A. Rover, U. S. Atty., at the time record was filed, and Milton Eisenberg, Asst. U. S. Atty., also entered appearances for appellee.

Before WILBUR K. MILLER, WASHINGTON and DANAHER, Circuit Judges.

WASHINGTON, Circuit Judge.

Plaintiff-appellant sought in the District Court a judgment declaring that an order of deportation issued against him is void and that he is not subject to deportation. After a trial the District Court entered judgment for the defendant-appellee, and this appeal followed.

Appellant was ordered deported (1) under Section 19 of the Immigration Act of February 5, 1917, 39 Stat. 889, as amended,^* on the ground that he had been convicted prior to entry of a crime involving moral turpitude, to wit, "keeper of a brothel," and (2) under Sections 13 and 14 of the Immigration Act of May 26, 1924, 43 Stat. 161-62,^** on the ground that at the time of his last entry he was not entitled to enter the United States, since the visa he presented was procured by fraud or misrepresentation, and hence was invalid.

1. Section 19 of the Immigration Act of February 5, 1917, provides inter alia:

"* * * any alien who was convicted, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude * * * shall, upon the warrant of the Attorney General, be taken into custody and deported * * *."

For a conviction to warrant deportation under this section, moral turpitude must be inherent in, or an essential ingredient of, the crime. If a person not guilty of moral turpitude may nevertheless be convicted of the crime, the offense cannot be said to involve moral turpitude for purposes of Section 19, irrespective of whether or not the conduct of the particular alien whose deportation is sought was immoral.¹

On February 11, 1939, in the Marylebone Magistrates Court, London, England, the appellant pleaded guilty to, and was convicted of, the charge of "Being the landlord of 59 Upper Berkeley Street were sic wilfully a party to the continued use of above as a brothel" on the date January 23, 1939, and other dates. He was fined £40, plus £21 for costs. He was not indicted but was served with a summons ordering him to appear to answer the charge. His conviction was had under Section 13(3) of the Criminal Law Amendment Act of 1885, Part II, as amended,² the pertinent language of which is substantially repeated in the quoted charge.

It can hardly be doubted that the offense of keeping a brothel involves moral turpitude.³ Appellant indeed says as much. But whether a landlord who was "wilfully a party to the continued use" of the rented premises as a brothel is necessarily and inevitably guilty of moral turpitude is a question of real difficulty.

First, we note that Parliament appears to have equated this offense to that of keeping a brothel, making them both triable in the same way and subject to the same punishment. Clearly the part of the statute which concerns us would apply to the landlord who, having received notice that the leased premises are being used as a brothel, consents to this use or takes some other affirmative action to allow the premises to continue to be so used. Cf. Durose v. Wilson (1907) 21 Cox C.C. 421, 71 J.P. 263. If the statutory language would also authorize conviction of a landlord who, after being put on notice of the immoral use, merely fails through negligence or inertia to take prompt action to prevent a recurrence by giving notice to quit, if that is available to him, or otherwise, the offense must be considered not to involve moral turpitude for present purposes, under the authorities cited in footnote 1, since the requisite element of evil intent, baseness, or depravity could be lacking in conduct signifying only lassitude rather than active participation. No decision by the English Courts on this matter has been found. However, we would suppose that a landlord would not be "wilfully a party to the continued use" of the premises as a brothel, merely by reason of ownership or by acquiring knowledge that the premises have been and are being so used, unless he knowingly and intentionally⁴ becomes a participant in the wrongdoing in some way, as by aiding or assisting, sharing in the profits derived therefrom, or giving his consent to the use as a brothel.⁵ Cf. Blocker v. Commonwealth, 1913, 153 Ky. 304, 307-308, 155 S.W. 723, 725, 44 L.R.A.,N.S., 859; State v. Williams, 1862, 30 N.J.L. 102, 105-106. Substantiating this view is the fact that the English courts have construed the statutory language strictly, against the prosecution.⁶

Because there is some doubt as to whether the crime of which the alien here was convicted is properly to be construed as one involving moral turpitude for purposes of Section 19, we are reluctant to affirm on this ground. Cf. Fong Haw Tan v. Phelan, 1948, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433; Barber v. Gonzales, 1954, 347 U.S. 637, 642-643, 74 S.Ct. 822, 98 L.Ed. 1009. A further circumstance contributes to our reluctance. Both the warrant of arrest and the deportation order assert that appellant was convicted of the crime of "keeper of a brothel," whereas he was actually convicted of "wilfully being a party as landlord to the continued use" of the leased premises as a brothel. The proof and the findings therefore do not fully support the first ground for deportation specified in the deportation warrant, even though the two offenses have a close relation. The propriety of deportation on the first ground given in the existing warrant may therefore be open to question. Cf. Throumoulopolou v. United States, 1 Cir., 1925, 3 F.2d 803; United States ex rel. Iorio v. Day, 2 Cir., 1929, 34 F.2d 920, 921; Takeo Tadano v. Manney, 9 Cir., 1947, 160 F.2d 665. We find it unnecessary to decide these questions, however, in view of our disposition of the second ground given in the warrant. We now turn to that ground, namely, fraud in the procurement of the visa on which plaintiff-appellant entered.

2. On July 17, 1951, plaintiff applied at the American Consulate in London, England, for an immigration visa to reenter the United States. In his sworn application he stated "I have not been arrested or indicted for, or convicted of, any offense." On the basis of this application he was issued an immigration visa on the same day, and using this visa he was admitted to the United States for permanent residence at New York, New York, on July 30, 1951.

The sworn statement in the application — denying any arrests, indictments, or convictions — was false. In addition to the brothel conviction described above, the record before the appellee-defendant, and now before us, contains plaintiff's sworn testimony in which he freely admitted on questioning that he was convicted in England for petty theft in the early 1920s and served a short jail sentence.⁷ Apparently, however, the charge in the deportation order of fraud in procuring the visa is based only on the failure to disclose the brothel conviction.

Under Sections 13 and 14 of the Immigration Act of 1924, 43 Stat. 161-62,⁸ an immigrant must have an unexpired immigration visa in order to be entitled to enter the United States, and — at least as a general rule — if at any time after he has entered, it is found that he was not entitled to enter he is deportable. These requirements of course presuppose a valid visa. The rule is now well settled that a visa obtained by misrepresentation of a material fact, that is, a fact which under the law is relevant to the alien's admission, is not a valid visa and hence is no visa.⁹

Had the appellant revealed the brothel conviction, it is clear that the consul would have been justified in refraining from an immediate grant of the visa which was applied for and granted on July 17, 1951, and on which the appellant entered the United States. Disclosure of the conviction would have required the consul to determine whether moral turpitude was involved in the brothel case before he could have lawfully issued the visa.¹⁰ With an offense of this nature obviously that question could not have been investigated and a final determination reached immediately. As we have seen, the question is one of real difficulty. Further, an investigation, if it had not been thwarted by the false answer, logically would have included questioning as to other possible convictions and might well have resulted in revealing the admitted conviction for petty theft, a crime which does involve moral turpitude within the meaning of the immigration laws.¹¹ This would have required the consul to withhold a visa. At any rate, the applicant's concealment of the brothel conviction resulted in the acquisition of a visa on July 17, 1951, which he could not have acquired at that time, or perhaps ever, if the truth had been told. The fact that he perhaps might have obtained a visa at some later date is irrelevant here; the visa at issue is the one obtained on July 17, 1951.

We do not read United States ex rel. Iorio v. Day, 2 Cir., 1929, 34 F.2d 920, or United States ex rel. Leibowitz v. Schlotfeldt, 7 Cir., 1938, 94 F.2d 263, as opposed to this view. In Iorio, the alien swore that he had never been imprisoned, whereas he had once been imprisoned in Arizona for possession of whiskey, an offense which the court pointed out was not commonly accepted as involving moral turpitude. In Leibowitz, the alien procured his visa by giving the first name and age...