United States v. Esperdy

• Decision Date: 13 January 1961
• Docket Number: Docket 26605.,No. 184,184
• Parties: UNITED STATES of America, ex rel. Salvatore SOLLAZZO, Petitioner-Appellant, v. P. A. ESPERDY, as District Director, Immigration and Naturalization Service, New York, New York, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

285 F.2d 341 (1961)

UNITED STATES of America, ex rel. Salvatore SOLLAZZO, Petitioner-Appellant, v. P. A. ESPERDY, as District Director, Immigration and Naturalization Service, New York, New York, Respondent-Appellee.

No. 184, Docket 26605.

United States Court of Appeals Second Circuit.

Argued November 17, 1960.

Decided January 13, 1961.

Nathan Kestnbaum, New York City, for petitioner-appellant.

Roy Babitt, Sp. Asst. U. S. Atty., New York City (S. Hazard Gillespie, Jr., U. S. Atty., Southern Dist. of New York, New York City, on the brief), for respondent-appellee.

Before LUMBARD, Chief Judge, and WATERMAN and MOORE, Circuit Judges.

LUMBARD, Chief Judge.

This appeal turns on whether bribery, of a participant in an amateur sport, in violation of New York Penal Law, McKinney's Consol.Laws, c. 40, § 382(1), is a crime involving "moral turpitude" within the meaning of § 19(a) of the Immigration Act of 1917, 8 U.S.C. § 155(a) (1946 ed.).^* If it is such a crime, it is conceded that the relator, Salvatore Sollazzo, an alien, sentenced to prison for a term of eight to sixteen years upon his plea of guilty, is deportable under said § 19(a) of the Act since he had been sentenced in 1933 to seven and one-half years for attempted robbery in the first degree. We hold that bribery of a participant in an amateur sport does involve moral turpitude and accordingly we affirm the order of the district court which dismissed the writ of habeas corpus.

From the petitioner's writ and the return to the writ we are informed only that in 1951 the relator pleaded guilty in the Court of General Sessions, New York County, to the crime of bribery of a participant in an amateur game in violation of New York Penal Law, § 382(1).¹ That statute, among other things, makes it a felony to give, promise, or offer to any amateur who is a participant or expects to participate in certain sports, any valuable thing "with intent to influence him to lose or try to lose or cause to be lost or to limit his or his team's margin of victory."²

There can be no question but that any crime of bribery involves moral turpitude, and so a New York court has held in another context, In re McNally, 1st Dept., 252 App.Div. 550, 300 N.Y.S. 459 (disbarment of attorneys for soliciting and giving bribes in commercial situation). Bribery in essence is an attempt to influence another to disregard his duty while continuing to appear devoted to it or to repay trust with disloyalty. It is not too much to say that the basic assumption of a morally healthy nation is that its citizens will reject such temptation and strive to give their best, their undivided, and their loyal efforts in response to trust and in order to retain self-respect. It is equally a challenge to that assumption and equally heinous to subvert the integrity of an amateur athlete as it is to corrupt the loyalty of employee to employer or the loyalty of a public servant to the people. Cf. Glickfield v. State, 1953, 203 Md. 400, 101 A.2d 229. That the criminal law dealt with the bribery of public officials and even employees long before it proscribed the bribery of amateur athletes and that some jurisdictions still do not have a statute analogous to § 382(1), does not show that the conduct proscribed therein is not immoral but simply that only recently has it seemed necessary to make such conduct criminal. Criminal or not, our tradition has been that it is morally base to corrupt another in his duty or loyalty. Where the people have declared particular aspects of such reprehensible conduct to be a crime, as in New York and some other states³ they have declared the bribery of amateur athletes, there can be no doubt that the crime involves moral turpitude.

Indeed, corruption of an amateur athlete is peculiarly distasteful. The athlete generally performs before the child...