IN THE MATTER OF F

Crime involving moral turpitude — 18 U.S.C. 1708, Revision of June 25, 1948, taking a letter from the U.S. mail.

Taking a letter from the U.S. mail in violation of 18 U.S.C. 1708 (revision of June 25, 1948) involves moral turpitude, as the statute refers to a larcenous taking.

CHARGES:

Warrant: Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — Convicted of crime prior to entry, to wit: Theft of mail containing a check ( 18 U.S.C. 1708).

Lodged: Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — Convicted of crime prior to entry, to wit: Taking a letter from the U.S. mail ( 18 U.S.C. 1708).

BEFORE THE BOARD

Discussion: The case comes forward on appeal from the order of the special inquiry officer dated August 26, 1956, ordering respondent deported on the charge lodged during the course of the hearing.

The record relates to a native and citizen of Canada, 26 years old, male, who last entered the United States at the port of Detroit on October 26, 1955, when he was admitted as a temporary visitor for a period of one day. On June 6, 1956, we dismissed the appeal but on July 13, 1956, ordered the case remanded for further proceedings in order to permit consideration of a certified copy of a court order correcting a clerical error in the judgment of conviction.

The present finding of deportability is based upon a judgment of the United States District Court for the Eastern District of Michigan entered June 6, 1956, amending the judgment of conviction of June 27, 1955, to read that respondent was convicted of unlawfully, willingly and knowingly taking a letter from the United States mail in violation of 18 U.S.C. 1708. It may be noted that the prior order of conviction indicated a conviction of the offense of theft of mail containing a check, likewise in violation of 18 U.S.C. 1708. Only the title of the offense has been amended, the information remains the same as previously, charging that respondent did unlawfully, willfully and knowingly take a letter containing a $41 check which had been sent by United States mail for delivery to a person other than the respondent.

Counsel contends that inasmuch as respondent has been charged with an unlawful taking rather than a stealing, there is no right to assume that taking was a theft or a larceny and that the crime with which respondent was charged does not involve moral turpitude. Counsel relies upon Matter of M---- B----, A-6705999, 3 IN Dec. 66, which involved a predecessor statute, 18 U.S.C. 317, dealing with various offenses under the postal laws. However, that case dealt with a broad statute which permitted a conviction even if the mail were taken out of sheer curiosity; the information upon which conviction was predicated did not shed any light on the circumstances under or the purpose for which the mail was taken, and we concluded that the offense was not one necessarily involving moral turpitude.

On the other hand, the present conviction is laid under 18 U.S.C. 1708, revision of June 25, 1948, which is entitled "Theft or receipt of stolen mail matter generally" and reads:

Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein; or * * *

Language omitted from predecessor section 317 of Title 18, U.S.C., 1940 ed., which includes the language referred to in Matter of M---- B----, supra, involving mail taken out of curiosity, was not included in section 1708 but was placed in section 1702, Title 18, U.S.C., which is entitled "Obstruction of correspondence." In turn, the predecessor statute to 18 U.S.C. 317, 1940 ed., relating to stealing or fraudulently obtaining mail, opening valuable letters, etc., was Revised Statutes, section 5469 (Act of June 8, 1872, c. 335, 17 Stat. 319). In construing the expression in Revised Statutes, section 5469, "take the mail, or any letter or packet therefrom, or from any post-office * * * with or without the consent of the person having custody thereof" it was held that this meant a wrongful or unlawful taking ( In re Burkhardt, 33 Fed. 25). It was further held that the stealing or taking of a letter in this statute meant a taking with a criminal intent, and not a taking through mistake, or with an innocent intent ( United States v. Pearce, 27 Fed. Cas. 480).

Under the 1948 revision of Title 18, we are satisfied that the stealing or taking described in section 1708 refers to a larcenous taking, whereas the taking referred to in Matter of M---- B----, supra, relating to an intent to pry or out of curiosity, has been relegated to section 1702 of the present revision of Title 18. It is accordingly concluded that the taking charged in violation of section 1708 is larcenous and involves moral turpitude. The appeal will be dismissed.

Order: It is ordered that the appeal be and the same is hereby dismissed.