Marciano v. Immigration and Naturalization Service

• Decision Date: 08 September 1971
• Docket Number: No. 20581.,20581.
• Citation: 450 F.2d 1022
• Parties: Roni David MARCIANO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

450 F.2d 1022 (1971)

Roni David MARCIANO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 20581.

United States Court of Appeals, Eighth Circuit.

September 8, 1971.

Bernard P. Becker, Legal Aid Society of Minneapolis, Minneapolis, Minn., for petitioner.

Judith H. Norris, Atty., Dept. of Justice, Civ. Div., Washington, D. C., Will Wilson, Asst. Atty. Gen., George W. Masterton, Atty., Dept. of Justice, Washington, D. C., for respondent; Daniel Bartlett, Jr., U. S. Atty., John A. Newton, Asst. U. S. Atty., of counsel.

Before MATTHES, Chief Judge, VAN OOSTERHOUT, Circuit Judge, and EISELE, District Judge.

VAN OOSTERHOUT, Circuit Judge.

Before us is a petition pursuant to § 106(a) of the Immigration and Nationality Act, 8 U.S.C.A. § 1105a(a), for review of the Board of Immigration Appeals' order of August 21, 1970, affirming the determination of the Special Inquiry Officer that the petitioner, Marciano, was convicted of a crime involving moral turpitude within the meaning of § 241(a) (4) of the Act, 8 U.S.C.A. § 1251(a) (4) and thus should be deported.

Section 1251(a) (4) provides:

"(a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who—

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(4) is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more, or who at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial; * * *"

It is undisputed that petitioner is an alien born in Morocco on December 12, 1942, that he is a citizen of Morocco and Israel, and that he entered the United States on an immigration visa on January 20, 1967. Petitioner admits that he was convicted of statutory rape in violation of Minnesota Statutes Annot. § 609.295(4), that he was sentenced to three-years imprisonment and that his conviction was affirmed by the Supreme Court of Minnesota on April 3, 1969. See State v. Marciano, 283 Minn. 200, 167 N.W.2d 41. He contends, however, that such conviction does not form a basis for deportation for the reasons hereinafter stated.

Petitioner contends that the deportation order should be set aside for the following reasons:

I. The phrase "crime involving moral turpitude" as used in 8 U.S.C.A. § 1251 (a) (4) is unconstitutionally vague on its face and thus violates the due process clause of the Fifth Amendment.

II. The State offense proscribed by Minnesota Statutes Annot. § 609.295(4) of which petitioner stands convicted is not a crime involving moral turpitude because the statute makes sexual relations with a female between sixteen and eighteen years of age a crime without any proof of criminal intent and a defense of reasonable mistake as to age is unavailable.

We find that the Board committed no error in the respects above charged or in any other respect and we affirm the deportation order.

I.

Petitioner's first contention that the phrase "crime involving moral turpitude" as defined in the deportation statute lacks sufficient standards to justify deportation and is therefor unconstitutional for vagueness has been rejected by the Supreme Court in Jordon v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886. We are foreclosed by that decision from considering the constitutional issue urged. See Ramirez v. United States Immigration and Naturalization Service, 134 U.S.App.D.C. 131, 413 F.2d 405.

II.

We are satisfied that petitioner's second contention to the effect that the statutory rape offense of which he was convicted is not a crime involving moral turpitude lacks merit. Minnesota Statutes Annot. § 609.295(4), the criminal statute under which petitioner was convicted, reads:

"Whoever has sexual intercourse with a female child under the age of 18 years and not his spouse may be sentenced as follows:

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(4) if the child is 16 years of age but under the age of 18 years and the offender is 21 years of age or older, by imprisonment for not more than three years."

Criminal intent is not made an element of the offense. Minnesota Statutes Annot. § 609.02 entitled "Definitions" at Subd. 9(6) provides:

"Criminal intent does not require proof of knowledge of the age of a minor even though age is a material element in the crime in question."

The Minnesota Supreme Court in State v. Morse, 281 Minn. 378, 161 N.W.2d 699, holds that criminal intent is not an element of an offense against a minor under the age of consent and that an honest belief of the accused that the victim had reached the age of consent when in fact she had not constitutes no defense. At the close of its opinion, the Court states:

"There may be cases where an application of Minn.St. 609.02, subd. 9 (6), leads to an unjust result. This is not one of them. In fact situations where the underage female is the aggressor and her male partner the real victim, it is likely that the good judgment of prosecutors and jurors will prevent a miscarriage of justice. * * * " 161 N.W.2d 699, 703.

The Supreme Court of Minnesota in affirming Marciano's conviction noted that he had entered a plea of guilty and hence the facts in the case were not developed. The Court then observes that the defendant had called its attention to the portion of its Morse decision hereinabove quoted and in answer thereto states:

"The prosecutor and the trial judge were afforded no opportunity to conduct a more exhaustive hearing to determine whether the prosecution would lead to an unjust result of the kind suggested in the Morse case. As we there noted, circumstances may occur where the application of § 609.02, subd. 9(6), brings about a miscarriage of justice. In an aggravated case, it may violate defendant\'s constitutional rights. These are matters which should be ventilated at the trial court level by whatever postconviction proceedings are available to defendant. However, for us to suggest the procedure which should now be pursued by defendant, or what evidence might compel the court to grant relief would be inappropriate and premature. The judgment of conviction is accordingly affirmed." State v. Marciano, 283 Minn. 200, 167 N.W.2d 41, 42-43.

Marciano's conviction was affirmed upon the basis of Morse.

The record before us discloses that Marciano filed a petition for postconviction relief in the trial court and was afforded an evidentiary hearing. The trial court on July 1, 1970, filed a memorandum and findings of fact, conclusions of law, and order in which it determined Marciano's plea was voluntarily and intelligently made, that he was represented by competent counsel, that he was fully aware of his constitutional rights, and that his plea of guilty was properly accepted. The court also found and determined that Marciano was told by his victim that she was fifteen or sixteen years of age prior to the commission of the offense, that the petitioner had sexual intercourse with the victim on the date charged, and that petitioner was the aggressor. The petition for post-conviction relief was denied and dismissed. We find nothing in the record to indicate that an appeal was taken from such order. Thus upon the record before us, it would appear that petitioner's conviction was final and that a determination has been made by the state court that this was not the unusual type of case referred to in the quoted excerpts from the Minnesota court's Morse opinion which leads to an unjust result.

Federal courts have consistently held that statutory rape is a crime involving moral turpitude. Bendel v. Nagle, 9 Cir., 17 F.2d 719, 720; Pino v. Nicolls, D.C. Mass., 119 F.Supp. 122, 128, aff'd 1 Cir., 215 F.2d 237, 240, reversed on other grounds, per curiam opinion Pino v. Landon, 349 U.S. 901, 75 S.Ct. 576, 99 L.Ed. 1239; Ng Sui Wing v. United States, 7 Cir., 46 F.2d 755, 756; United States ex rel. Marks v. Esperdy, D.C., 203 F.Supp. 389, 396-397.¹ See Am.Jur. 2d Aliens and Citizens, § 80.

In Ng Sui Wing v. United States, supra, defendant's third contention was that statutory rape does not involve moral turpitude. In answer thereto the Court states:

"As to appellant\'s third contention, it is only necessary to refer to a widely accepted definition of the term `moral turpitude,\' which is `an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.\' In re Henry, 15 Idaho, 755, 99 P. 1054, 21 L.R.A.(N.S.) 207. In the case of Bendel v. Nagle (C.C.A.9), 17 F.(2d) 719, 720, 57 A.L.R. 1129, the court used this language: `The crime of which the appellant was convicted is usually classed as rape, * * * and such a crime manifestly involves moral turpitude.\' With this statement we agree." 46 F.2d 755, 756.

The Board of Immigration Appeals has consistently held statutory rape to be a crime involving moral turpitude. Matter of Dingena, 11 I & N Dec. 723 (1966). Dingena involved a deportation proceeding based upon a Wisconsin statutory rape conviction. The Wisconsin statute is much like the Minnesota statute. The Special Inquiry Officer follows Dingena and quotes therefrom as follows:

"It is concluded that whether the offense be designated as statutory rape, carnal knowledge of a female under the age of consent, or sexual intercourse with a child under the age of consent, the essential and material elements in all these cases are the carnal knowledge or intercourse and the age of the female. If sexual intercourse is present, and it is established that the female is under the age of consent, the element of mens rea does not enter because of the very nature of the offense and the interest of society in rendering such females incapable of

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