A-7417235Board of Immigration Appeals Executive Office for Immigration Review U.S. Department of Justice
Decided by Board December 12, 1957
Crime involving moral turpitude — Receiving or accepting stolen goods (“ricettazione”), Article 648 of the Italian Penal Code — Knowledge, as essential element, is implied.
Where the accused has knowledge that the property was stolen, the crime of receiving stolen goods has been held to involve moral turpitude. Article 648 of the Italian Penal Code does not, in express terms, require that the accused must have knowledge that the goods were stolen or otherwise unlawfully acquired. Research reflects, however, that Italian legal writers and the courts in Italy hold that such knowledge is implied (cf. Matter of R—-, A-3927887, 6 IN Dec. 772, Oct. 27, 1955). Hence, violation of Article 648 of the Italian Penal Code involves moral turpitude and the ground of deportation based on the conviction for receiving stolen goods is appropriate.
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Act of 1917 — Entered without inspection.
Act of 1917 — Stowaway.
Lodged: Act of 1952 — Section 241 (a) (1) — Excludable at entry under section 3 of the Act of Feb. 5, 1917 — Convicted of crime prior to entry — Commercial fraud (two offenses): Accepting stolen goods, and fraud on sales tax and exchange tax.
BEFORE THE BOARD
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of a special inquiry officer granting voluntary departure and directing that the respondent be deported if he fails to depart voluntarily. While the case was pending on appeal, the Service filed a motion dated October 22, 1957, requesting that the case be remanded to it for further consideration under the Act of September 11, 1957 (Public Law 85-316, 71 Stat. 639).
The respondent is a 42-year-old married male, native and citizen of Italy, whose only entry occurred in July 1947, as a stowaway. The special inquiry officer found that the respondent was convicted in Italy of the offense of receiving stolen goods and that this crime involves moral turpitude. He concluded that the respondent was deportable
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on all the charges stated above, the lodged charge being sustained solely on the basis of the conviction for receiving stolen goods.
Counsel does not contest the special inquiry officer’s conclusion that the respondent is deportable on the 3 warrant charges but contends that the lodged charge is not sustained. The issue to be determined is whether the Italian offense of “ricettazione” (receiving stolen goods) involves moral turpitude. If it does, counsel apparently concedes that suspension of deportation cannot be granted.
In addition to the conviction for receiving stolen goods, the respondent was also convicted on April 10, 1935, and again on March 17, 1938, of fraud in commercial business, and on July 20, 1947, he was convicted of a violation of Article 18 of a Royal Decree of April 22, 1943. The last related to a conviction for placing meat on sale at a price higher than the price fixed by the authorities, and the Service does not contend that this offense involves moral turpitude. In our order of September 12, 1956, we stated that, although the offenses for which the respondent was convicted on April 10, 1935, and March 17, 1938, were designated as “fraud in commercial business,” the statute itself did not make fraud an element of the offense, and we concluded that these offenses did not involve moral turpitude.
The remaining offenses related to a conviction on November 5, 1937, which was affirmed on appeal on July 7, 1938. Exhibit 23 relates to this conviction, and a translation of part of this document shows that this prosecution involved 15 defendants. The first 13 were convicted of aggravated theft, and the respondent and one other defendant were convicted of accepting or receiving stolen goods. The translation shows that all of the defendants were also convicted of “(a) fraud on consumer goods stamp tax and (b) fraud on exchange tax.” These 2 latter items are the same as the offense which is shown in the caption as “fraud on sales tax and exchange tax.” We have not been furnished with a copy of the Italian statutory provision relating to these latter offenses and the Service does not assert that they involve moral turpitude. Hence, as we have indicated above, the sole question is whether the Italian offense of receiving stolen goods involves moral turpitude.
The partial translation of the document relating to the conviction of November 5, 1937, does not show when the original theft occurred nor other details of the offense committed by the respondent. However, the translation contains the statement that the respondent, a butcher, was arrested on November 23, 1936, for repeatedly receiving meat knowing that it had been stolen and that no stamp and exchange tax had been paid thereon. It also shows that the respondent admitted buying, on only one occasion, 55 kilos of meat without being aware that such meat had been stolen and that the taxes had not been
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paid. The translation indicates that the respondent was released on May 27, 1937, pending trial; that on November 5, 1937, he was sentenced to imprisonment for one year and fined; that simultaneously all of his penalties were condoned; and that the sentence pronounced by the lower court was affirmed on July 7, 1938, on appeal.
The pertinent statutory provision relating to “ricettazione” is Article 648 of the Italian Penal Code which, in English translation, is as follows:
Article 648 — Receiving Stolen Goods.
Except in the case of being an accomplice to the crime (sections 110 to 119) whoever, for purposes of procuring a profit to himself or to others, acquires, receives, or conceals money or anything of value proceeding from any crime whatsoever, or is any way instrumental in causing them to be acquired, received or concealed shall be punished with imprisonment not exceeding six years and with a fine not exceeding one hundred sixty thousand lire.
The provisions of this article shall also apply when the author of the crime, from which the money or articles of value derive, is not indictable or is not punishable (379, 649).
One of the elements of the crime is that the property must have been acquired or received “for purposes of procuring a profit to himself or to others.” Apparently this element was present in the respondent’s case because he presumably paid the wholesale price for the meat and sold it at the retail price, thus securing a profit. However, if the respondent did not know that the meat was stolen, there could be no moral turpitude in acquiring the property for the purpose of making a profit since that is the normal procedure in conducting a business. Hence, this element must be disregarded as well as the element of concealment since there is nothing to indicate that the property was concealed.
The important consideration is whether the Italian statute requires that the accused must have knowledge that the goods were stolen. Under United States statutes, where this element is present, the crime of receiving stolen property has been held to involve moral turpitude (United States ex rel. Feuer v. Day, 42 F. (2d) 127 (C.C.A. 2, 1930); United States ex rel. Rydberg
v. Reimer, 17 F. Supp. 414 (S.D.N.Y., 1936); Matter of L—-,
A-8644043, 6 IN Dec. 666 (1955); Matter of R—-,
A-3927887, 6 IN Dec. 772 (1955); Matter of Z—-,
A-4566433, Int. Dec. No. 805 (1956)).
Article 648 of the Italian Penal Code does not, in express terms, require that the accused must have knowledge that the goods were stolen or otherwise unlawfully acquired. The special inquiry officer’s conclusion that moral turpitude was involved was based on the opinion of certain Italian legal writers that knowledge that the goods were stolen, was nevertheless, an element of the offense. In order to secure additional information on this point, this Board addressed a communication to the Law Librarian of the Library of Congress, and a copy
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of the opinion received is attached hereto as “Appendix (A).” It is clear therefrom that the Italian legal writers and courts hold that the accused must have had knowledge or implied knowledge that the property was stolen or otherwise unlawfully acquired. In those Italian cases in which knowledge is implied, as in the case of a manifestly low price or youth of the seller, the situation is similar to Matter of R—-, supra. There we considered a New Jersey statute which, in effect, raised a presumption of knowledge that the goods were stolen, and we concluded that the crime involved moral turpitude. In view of the foregoing, we hold that a violation of Article 648 involves moral turpitude, and that the lodged charge is sustained on the basis of the conviction for receiving stolen goods.
Since we have concluded that the lodged charge is sustained, it follows that the provision contained in section 19 (d) of the Immigration Act of 1917, as amended, bars the granting of the respondent’s application for suspension of deportation under that act. Inasmuch as the respondent may be eligible for consideration under the Act of September 11, 1957, we will remand the case to the Service in accordance with its request.
Order: It is ordered that the case be remanded to the Service in accordance with its request.
APPENDIX “A” CERTAIN ASPECTS OF THE CRIME OF RECEIVING STOLEN GOODS UNDER ITALIAN LAW
Section 648 of the Italian Criminal Code of October 19, 1930, contains no express requirement that the accused must have been aware of the fact that the property was stolen or otherwise unlawfully acquired. However, Italian legal writers of authority are emphatic that such knowledge must exist to complete the crime. The offender must have been willing to acquire, receive or conceal money or anything of value, or become involved in such a transaction, with full (or implied) knowledge that such goods are the fruit of a crime. This element they say, is an essential prerequisite in addition to those specified by section 648.[1]
Francesco Antonisei, to mention one specific authority, expresses the above view. But he, as do others, goes further and stresses that such knowledge may also be imputed when the perpetrator is in doubt as to the criminal origin of the goods but nevertheless acted upon it and
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thus assumed the risk of violating the law. This criminal intent he calls dolo eventuale (dolos eventualis),[2] which is also known as dolo indeterminato (undetermined intent). The term applies to a situation where the perpetrator knows that more than one result (either criminal or lawful) is possible, but he nevertheless acts, taking a chance on the result.[3]
The 1930 Criminal Code itself again does not mention dolo eventuale. It states that no one may be punished for an act, or omission to act, which the law defines as a crime, unless the perpetrator commits it with knowledge and willingness. However, this rule has two exceptions: the first applies to crimes which in their result exceed the intent (delitto preterintenzionale, or oltre l’intenzione), i.e., when the act or omission leads to a grave and dangerous result which is more serious than that intended by the perpetrator; and the second applies to crimes committed by negligence, which are expressly provided for by law (secs. 42 and 43).
Italian case law consulted for the period beginning with 1938 reiterates the doctrine of the jurists expounded above. Translated abstracts of a few decisions are given in the following:
The crime of receiving stolen property presupposes that the perpetrator be not merely in doubt, but be aware that the things acquired have resulted from a crime.[4]
The crime of receiving stolen property presupposes a knowledge that the things have resulted from a crime.[5]
Knowledge of the origin of the stolen goods received is an essential element of the crime of receiving stolen property. Such knowledge on the part of the defendant is presumed from conclusive facts such as a manifestly low price, or youth of the seller.[6]
The crime of receiving stolen property is committed when the receiver has the knowledge and not merely a doubt that the merchandise received was stolen property.[7]
The crime of receiving stolen property necessarily presupposes that the goods received by the perpetrator actually resulted from a crime and the agent received them with such knowledge and a willingness to reduce them to his possession.[8]
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The crime of receiving stolen property is complete if the criminal origin of the merchandise received or acquired is determined and the person acquiring it is aware thereof.[9]
The crime of receiving stolen property is complete if knowledge of the criminal origin of such property may be inferred from facts of which the offender must have been aware.[10]
From the above-cited opinions of the courts, it appears that the court, in a given case, will enter upon and try to determine the offender’s state of mind at the time of receiving the goods. A study of a court’s sentence will show the conclusion of the court in this regard.
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